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"Your service is outstanding. I saved almost $340 over what my mechanic quoted me for the same parts, and you shipped my order very fast. I will recommend Auto Parts Way to all my friends and will certainly come back for your great service again." - Joe Marcolli
I wish to tell everyone buying auto part to try you first. I bought auto parts from you before and you have the best fulfillment and customer service. You shipping is very quick. Thank you. - David Greenberg.
Best Servie, Best Prices. I will not get my auto parts from anyone else. Enough Said - Ludovic Binguid
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Auto Parts Online, Huge Inventory, Low Price Guarantee!
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AFFILIATE AGREEMENT
This Link Referral Agreement ("Agreement") is by and between your company ("You" or "Participant") and AUTO PARTS WAY CORP. ("AutoPartsWay"), each of which may be referred to as "Party" and collectively "Parties."
1. Term Renewal; Termination. This Agreement shall be effective on the date AutoPartsWay accepts Participant's application and shall continue for one (1) year thereafter (the "Initial Term"). The term of this Agreement shall automatically renew for successive one (1)-month terms unless
a. either Party gives notice to the other at least thirty (30) days prior to the end of the then-current term, or
b. this Agreement is terminated earlier pursuant to the terms of Section 11 hereof.
2. Referral. Participant agrees to provide "Link(s)" to AutoPartsWay from its Web site(s), subject to the reasonable prior approval of AutoPartsWay with respect to the form and text of such link(s). Each of the Special Links will connect directly to a AutoPartsWay-provided Web site, according to a special link format provided to Participant by AutoPartsWay. Participant shall not make any changes to any Special Link, including, without limitation, changes to the content, appearance or functionality of any Special Link.
3. Preferred Customer. Participant shall provide the AutoPartsWay icon placement, which has equal to or greater than prominence than any other computer hardware or software provider.
4. Trademarks.
a. General. Except to the extent that any AutoPartsWay trademarks are included in banner advertisements or other promotional materials that Participant obtains AutoPartsWay.vom or that Participant otherwise receives from AutoPartsWay, Participant has no right to display or otherwise use any AutoPartsWay trademarks. Participant may display the AutoPartsWay trademarks described in the preceding sentence solely as part of the Special Links connecting to AutoPartsWay and solely to promote AutoPartsWay products. Any display of trademarks must be in good taste, and in a manner that preserves their value as trademarks of the other Party and in accordance with reasonable standards provided by such Party for their display. Neither Party will use any name or symbol in any manner that may imply that it is an agency or branch of the other. Neither Party grants a trademark license to the other Party under this Agreement.
b. Ownership of Trademarks. Each Party acknowledges the ownership of the other Party in the trademarks of such other Party and agrees that all use of the other Party's trademarks shall inure to the benefit, and be on behalf of, the other Party. Each Party acknowledges that its utilization of the other Party's trademarks will not create in it, nor will it represent it has, any right, title, or interest in or to such trademarks other than the licenses expressly granted herein. Each Party agrees not to do anything contesting or impairing the trademark rights of the other Party.
5. Referral Fee.
a. AutoPartsWay shall pay Participant a referral fee on click-throughs from the Participant's Web site to AutoPartsWay ("click-through") that result in a sale of AutoPartsWay products. The referral fee shall be paid on monthly net sales revenue which is the sales revenue generated by click-throughs each month net of returns, cancellations, and credits, and excluding taxes and shipping.
b. Participant will receive referral fee payments only with respect to online click-through net sales less shipping and taxes that are made during the term of this Agreement and Participant expressly agrees that no further referral fee payments will be due from AutoPartsWay for click-through sales placed by customers after this Agreement has been terminated pursuant to Section 11 hereof.
c. The final referral fee payment to the Participant may be withheld for a period not to exceed sixty (60) days after termination or expiration of this Agreement to ensure that the correct amount is paid.
d. The referral fee for click-through sales will be valid if a purchase is made within fourteen (14) days of the initial session and the purchase is made from the same computer system. The fourteen (14) calendar day extension is subject to change at AutoPartsWay's discretion.
6. Referral Fee Payment. Within thirty-five (35) days after the end of each month during the term of this Agreement, AutoPartsWay shall pay Participant the applicable referral fee for the preceding month. In the event that the monthly applicable referral fee is less than $150.00, payment of such referral fee will be deferred until the cumulative amount exceeds $150.00.
7. No Guarantees. Neither Party makes any guarantees whatsoever as to the results of efforts in connection with this Agreement. Neither Party makes any warranties, promises or statements except as specifically stated herein with respect to any matter. Neither Party has made an affirmation of fact or promise relating to the services or duties that have become any basis of this Agreement other than as stated herein, and the Parties acknowledge that they have relied on no warranties, promises or statements other than those expressly set forth in this Agreement. The Parties acknowledge that any estimates, projections, or forecasts provided to it by or on behalf of the other Party are only estimates and are not representations that such estimates will be realized.
8. Application Criteria. AutoPartsWay will not accept into its affiliate program sites that conform to any of the following criteria:
• Promote discrimination based on race, sex, religion, nationality, disability, sexual orientaton, or age
• Misrepresent themselves as a AutoPartsWay Web site by co-opting the visual "look and feel" of or text from AutoPartsWay's site or otherwise violate intellectual property rights, including, without limitation, "scraping" text or images from AutoPartsWay's Web sites
• Do not clearly make available an online privacy policy to its visitors
• Are "under construction" or have broken URLs
• Are otherwise considered offensive or inappropriate at AutoPartsWay's discretion.
9. Promotional Materials/Press Releases. Neither Party shall publicly announce or disclose the existence of this Agreement or its terms and conditions, or advertise or release any publicity regarding this Agreement without the prior written consent of the other Party. In the case of AutoPartsWay, such consent must be given by AutoPartsWay's Vice President of Corporate Communications. Breach of this provision by Participant or any of its subcontractors or suppliers shall be considered a material breach of this Agreement and AutoPartsWay shall be entitled to, at its option, one or more of the following remedies: (i) in view of the difficulty of determining with any certainty the resulting damages incurred by AutoPartsWay if Participant breaches this provision, Participant shall pay AutoPartsWay, as liquidated damages, an amount equal to One Hundred Thousand Dollars ($100,000); (ii) Participant shall publish a redaction of such press release; or (iii) AutoPartsWay may terminate this Agreement immediately upon delivery of notice to Participant and without further liability to it. The Parties agree that the amount specified in clause (i) of the preceding sentence is a reasonable approximation of the harm caused to AutoPartsWay's brand in the event Participant breaches this provision. This provision shall survive termination of this Agreement.
10. Web Site Service Interruption. AutoPartsWay will make every effort to keep its Web site operational. However, certain technical difficulties may, from time to time, result in temporary service interruptions. The Participant agrees that AutoPartsWay shall have no liability of any kind for any of the direct or indirect consequences of such interruptions.
11. Agreement Modification. AutoPartsWay reserves the rights to change any of the terms and conditions in this Agreement, at any time and in its sole discretion, by providing thirty (30) days' written notice to Participant.
12. Termination; Effect of Termination. AutoPartsWay may, without cause and without liability to Participant, terminate this Agreement at any time. Either Party may terminate this Agreement for any material breach by the other Party of its obligations under this Agreement if such other Party fails to cure such material breach within thirty (30) days of receipt of written notice describing the nature of such breach with particularity. Termination of this Agreement will not release either AutoPartsWay or Participant from its obligations or discharge any liability that has been incurred by either Party prior to and including the effective date of termination. Upon termination of this Agreement, for any reason, Participant will promptly refrain from representing itself in any capacity relative to the AutoPartsWay Program and AutoPartsWay will likewise promptly cease representing that the Participant is associated with the Program.
13. Representations and Warranties. Each Party represents and warrants to the other Party that:
a. such Party has the requisite legal right, power and authority to enter into this Agreement and to perform the acts required of it hereunder;
b. the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound;
c. when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms;
d. such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
14. Confidentiality. You understand that, if your application is accepted by AutoPartsWay, you will be exposed to AutoPartsWay's business procedures and processes and may or will have access to certain confidential information belonging to AutoPartsWay, which AutoPartsWay considers to be among its most valuable assets. You also understand that in order for AutoPartsWay to protect its secret and confidential information and its goodwill with customers, it is necessary for AutoPartsWay to reasonably restrict your ability to use and disseminate confidential information of AutoPartsWay to the maximum extent permitted by law. As such, Participant will not directly or indirectly, during the term of this Agreement or thereafter, disclose or make any use of, for your own benefit or for the benefit of a business or entity other than AutoPartsWay, any AutoPartsWay information that, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, you reasonably understand to be proprietary and confidential to AutoPartsWay, an affiliate of AutoPartsWay or a third party, including, without limitation, Be Free ("Confidential Information"). You must limit dissemination of Confidential Information to employees who have a need to know and shall not otherwise disclose the Confidential Information to any party. You shall protect the Confidential Information using a degree of care comparable to the care used to protect your own confidential and proprietary information, but in no case less than the degree of care generally accepted in the industry. You acknowledge that disclosure or use of any Confidential Information may give rise to irreparable injury to AutoPartsWay for which monetary damages may not be adequate. Accordingly, you agree that AutoPartsWay will be entitled to injunctive relief against the breach or threatened breach of your obligations under this paragraph, in addition to any other legal remedies that may be available. This provision shall survive the expiration or earlier termination of this Agreement.
15. Privacy. Participant acknowledges the importance AutoPartsWay places on protecting the privacy of its end users. Accordingly, Participant shall use its best efforts to safeguard any individually identifiable data acquired from or about end users, including, without limitation, names, addresses, or credit information, against unauthorized access or use. In addition, Participant shall not, without AutoPartsWay's prior written consent, use, sell, license, lease or otherwise transfer such data to any third party, or export such data to any location outside of the country in which Participant acquired such data. In the event AutoPartsWay agrees to allow Participant to use end-user data to send marketing materials to end users, Participant shall: (i) allow each end user to access any data Participant may have regarding such end user; (ii) allow each end user to correct any incorrect or incomplete data regarding such end user; (iii) comply with any request by an end user to remove such end user's name from the customer lists maintained by Participant; and (iv) upon receipt of a request as described in clause (iii), provide no further marketing materials to such end user. Upon the expiration or earlier termination of this Agreement, Participant shall return to AutoPartsWay all lists and other data regarding end users acquired from AutoPartsWay then in Participant's possession. Participant shall not retain any copies of such data in hard copy or electronic form.
16. Liability Limitation. UNDER NO CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE, SHALL (1) AutoPartsWay BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF AutoPartsWay HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, OR (2) SHALL AutoPartsWay'S LIABILITY HEREUNDER EXCEED AN AMOUNT EQUAL TO THE TOTAL REFERRAL FEES PAID TO PARTICIPANT HEREUNDER.
17. Indemnity. Participant will defend, indemnify, save and hold harmless AutoPartsWay and its officers, directors, agents, affiliates, distributors, and employees from and against any and all third-party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), resulting from Participant's performance or non-performance under this Agreement, including any material breach of any duty, representation, or warranty of Participant under this Agreement, except to the extent that such Liabilities result solely from the gross negligence or knowing and willful misconduct of AutoPartsWay. AutoPartsWay shall (a) promptly notify Participant in writing of any claim subject to indemnification hereunder; (b) give Participant the opportunity to control the defense and settlement of any such claim; and (c) reasonably cooperate with Participant, at Participant's expense, in defending or settling such claims. AutoPartsWay shall have the right to participate, at its sole expense, in the defense or settlement of any such claim.
18. Independent Contractors. The Parties to this Agreement are independent contractors and neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement of or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. In addition, Participant shall make no representations or other statements, in writing or otherwise, regarding any association of Be Free with AutoPartsWay or Participant.
19. Notice. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered by electronic mail on the AutoPartsWay Network; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one (1) business day after deposit with a commercial overnight carrier, with written verification of receipt, or (iv) five (5) business days after the mailing date if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available, to the address of the Party to whom the same is directed. Any notices sent by Participant to AutoPartsWay shall be sent to the following address:
AutoPartsWay Business Affiliate Program
545 8th Avenue Suite 401
New York, NY 10018
20. No Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance, except (i) to the extent the other Party is prejudiced by such failure, or (ii) in the event of an express waiver of relinquishment.
21. Return of Information. Upon the expiration or termination of this Agreement, each Party shall promptly return all information, documents, manuals and other materials belonging to the other Party except as otherwise provided in this Agreement.
22. Further Assurances. Each Party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by any other Party for the implementation or continuing performance of this Agreement.
23. Assignment. Participant shall not assign (voluntarily, by operation of law or otherwise) this Agreement or any right, interest or benefit under this Agreement without the prior written consent of AutoPartsWay, except for an assignment of all of such Party's rights and obligations hereunder to a parent, majority-owned subsidiary, or a successor to all or substantially all of the assets or stock of the Participant. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the Parties hereto and their respective successors and assigns.
24. Construction. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect.
25. Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the Parties with respect to the transactions set forth herein. AutoPartsWay shall not be bound by, and AutoPartsWay specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by Participant in any correspondence or other document, unless AutoPartsWay specifically agrees to such provision in writing.
26. Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of South Dakota except for its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the courts of the State of South Dakota and the federal courts situated in the State of South Dakota, in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief for breach of default under this Agreement or otherwise arising under or by reason of this Agreement.
27. Domestic Agreement. All payments under this Agreement shall be in U.S. dollars. Additionally, no Product deliveries under this Agreement shall be made outside the United States.
Become An Affiliate Now!
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