All copyrights and trademarks are owned by and are the property of The Racers Network™ and Walco USA™
Software by Walco USA™ all rights reserved
A Walco USA Corporation Company
The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement
(collectively "Agreement") to The Racers Network™ Inc., an Ohio corporation, acknowledges that it wishes to become
an Affiliate, and in consideration of The Racers Network™ approving Affiliate's Application, agrees to be bound
by the terms and conditions of this Agreement. Affiliate warrants that all information provided in the Affiliate
Application is true and accurate. Affiliate understands that The Racers Network™ has sole discretion over whether
to accept or reject Affiliate's Application, and that this Agreement will not be binding unless Affiliate has been
notified of such acceptance.
RECITALS:
A. Affiliate is the operator and owner of the Internet Web site(s), emails, other segments or spaces on such Web
site(s) and Web-based services described in the Affiliate Application (collectively, the "Distribution Medium").
B. The Racers Network™ operates an online ISP ("Internet Service Provider") based corporation with whom The
Racers Network™ has contracted (collectively "Distribution Partners" or "Affiliates") (which includes the
Distribution Medium, other Web sites, email lists, desktop applications and wireless services) for which it
solicits various entities (as well as other advertisers, advertising agencies or others) ("Marketers") to place
performance-based advertising offers in the form of banners, textual links, transactional ads or other relevant
media with respect to The Racers Network™ products and services ("Products"), including the specific Offers
described in the individual Marketer Specific Terms (the "Offer").
1. Term.
The Racers Network™ reserves the right to terminate this Agreement at any time upon notice to Affiliate via
e-mail or via The Racers Network™ Web site. The Racers Network™ may immediately terminate this Agreement without
notice if Affiliate is in breach of any representation, warranty or covenant in this Agreement or any other
agreement to which Affiliate and The Racers Network™ are a party. Affiliate may terminate this Agreement upon
thirty (30) days written notice to The Racers Network™. The rights and obligations contained in Sections 3, 5,
6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.
2. Acceptance
Affiliate at its discretion, and upon approval by The Racers Network™, shall determine which Offers it will
display through its Distribution Medium. Any Offer displayed by Affiliate shall be displayed on the terms
and conditions set forth in this Agreement and in accordance with all applicable Marketer Specific Terms.
3. Payment For Services
(a) The Racers Network™ agrees to remit to Affiliate an Advertising Fee ("Advertising Fees") payable in the
amounts and on the terms as set forth in this Agreement as well as in accordance with all applicable Marketer
Specific Terms for all Offers placed with Affiliate which result in the sale of Products or other specified
action from the Marketer's Web site via hyperlinks from Affiliate's Distribution Medium.
(b) As used in this Agreement and in any applicable Marketer Specific Terms:
(i) "Net Monthly Sales" means the net dollar amount actually billed by Marketer for Products sold to a
Qualified Customer (as defined below) during a calendar month. Net Monthly Sales are calculated exclusive
of transportation and packaging costs, insurance, duties, taxes and other governmental charges, but including
all commercial, trade, cash and other discounts actually granted by Marketer.
(ii) A "Qualified Customer" means any individual or entity that purchases Products from the Marketer Site
within the period of time as set forth in any applicable Marketer Specific Terms of clicking through to the
Marketer's Site via hyperlinks from any Affiliate or from any other promotional placement provided by
The Racers Network™.
(iii) A "Registrant" means any individual or entity that submits to Marketer all information required by
Marketer's registration form within the period of time as set forth in any applicable Marketer Specific
Terms of clicking through to the Marketer Site via hyperlinks from any Affiliate or from any other
promotional placement provided by The Racers Network™.
(iv) A "Qualified Registrant" is a Registrant who has not previously submitted information to Marketer and
whose registration data is not already known to or possessed by Marketer.
(c) In the event an individual or entity visited The Racers Network™ prior to purchasing Products from or
undertaking some other specified action on the Marketer's Web site, the Affiliate or Distribution Partner
operating the last Distribution Medium that such individual or entity clicked through to the Marketer's Web
site shall be the only party entitled to receive an Advertising Fee for the Products sold.
(d) The Racers Network™ shall pay the Advertising Fees to Affiliate within thirty (30) days after the end
of the month in which The Racers Network™ has received payment for such Advertising Fees. The Racers
Network™ shall not be obligated to make any payment of Advertising Fees to Affiliate until (1) the aggregate
amount of Advertising Fees due to Affiliate from the Marketer equals or exceeds thirty dollars ($30.00).
Any earned but unpaid Advertising Fees shall carry over to the next regularly scheduled payment period.
(e) The Racers Network™ will only remit payment to Affiliate if Affiliate has been accepted by The Racers
Network™ as an Affiliate and has provided The Racers Network™ with a correct mailing address and a tax
identification number (W-9 form).
(f) The Racers Network™ may make appropriate deductions from future payments for items that were returned
or canceled but for which payment was remitted to The Racers Network™.
(g) Amounts credited to Affiliate's account will not bear interest.
4. Responsibilities of The Racers Network™
The Racers Network™ covenants and agrees to use its commercially reasonable best efforts: (a) to provide,
monitor and maintain the necessary technology applications required to link Affiliate to the Marketer's
Web site ("The Racers Network™ Technology"). The Racers Network™ Technology shall include the use of
tags in HTML/Java or other appropriate languages (the "Tags") to enable The Racers Network™ to serve or
provide Offers to Affiliate; (b) to provide Affiliate with product descriptions, GIF or JPEG Images,
other product attributes, for The Racers Network™.
5. Responsibilities of Affiliate
Affiliate covenants and agrees to use its commercially reasonable best efforts: (a) to continue to operate
and maintain the Distribution Medium (including any Web pages where any Offer appears) in a manner
consistent with the intent and purpose of the Distribution Medium; (b) to place Offers on Affiliate's
Distribution Medium and (including Web pages where any Offer appears) in accordance with the terms set
forth in this Agreement and in accordance with all applicable Marketer Specific Terms; (c) to maintain its
customer list in a manner that conforms with best practices of opt-in solicitation and privacy policies; and
(d) to position the Offers on each Distribution Medium (including any Web page where any Offer appears)
in such a manner to assure that the Offers are fully and clearly visible to consumers and displayed in a
similar manner as other Marketers included in the Distribution Medium.
6. Limitation of Liability
(a) Affiliate agrees to indemnify, defend and hold harmless The Racers Network™ (and their respective
officers, directors, employees, shareholders and agents) from and against any and all liability, claims,
losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising
from or relating to (i) any breach of this Agreement by Affiliate or (ii) the operation and content of the
Distribution Medium. Affiliate acknowledges that the Marketer who displays or allows to be displayed any
Offer on Affiliate's Web site or through any of Affiliate's Distribution Medium is an intended third party
beneficiary of these indemnities. Affiliate agrees that it will not assert a defense based upon lack of
privity against the Marketer seeking to enforce these indemnities.
(b) The Racers Network™ agrees to indemnify, defend and hold harmless Affiliate (and its respective
officers, directors, employees, shareholders and agents) from and against any and all liability claims,
losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising
from or relating to any breach of this Agreement by The Racers Network™.
(c) Neither Affiliate, nor The Racers Network™ shall be liable to one another for any special, consequential
(even if a party has been informed of the possibility of such damages), incidental, punitive or indirect
damages, losses, costs or expenses of any kind arising out of this Agreement or its termination, however
caused, and whether based in contract, tort (including negligence), products liability or any other theory
of liability regardless of whether such party has been advised of the possibility of such damages, losses,
costs or expenses. Neither Affiliate, nor The Racers Network™ shall be liable to one another for lost or
imputed profits arising out of this Agreement or its termination. Each party hereto waives any claims that
these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from The
Racers Network™s' willful misconduct or recklessness, the liability of The Racers Network™ shall not exceed
the total amount of the Advertising Fees actually paid by The Racers Network™ to Affiliate under this
Agreement and the applicable Marketer Specific Terms. The limitations set forth in this Section 6(c) shall
not, however, apply to a breach of Section 7 hereof. Affiliate shall not be liable (i) for any errors or
omissions included in the Offers received from The Racers Network™ or (ii) in the event that Affiliate
encounters technical or other difficulties which may occasionally hinder the operation of the Distribution
Medium. The Racers Network™ shall not be liable to Affiliate or any other person or entity for (i) any
information provided to any person or entity by the Marketer or any illegal, inappropriate act or act of
misconduct on the part of the Marketer; (ii) system downtime of The Racers Network™ ; (iii) unauthorized
access to, or alteration, theft or destruction of Affiliate's Distribution Medium, data files or systems
or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors,
omissions or other inaccuracies in the Offers.
7. Confidentiality
In connection with the business relationship contemplated by this Agreement, each party may receive or have
access to commercially valuable technical and non-technical confidential or proprietary information of the
other party, including information in whatever form, relating to the business of such party that is not
generally known or available to others, including source code and documentation for software, trade secrets,
know how, customer lists, pricing strategies, marketing and business plans, information concerning a party's
vendors, and such party's contemplated plans, strategies and prospects ("Confidential Information"). Each
party acknowledges and agrees that any Confidential Information received or obtained from the other party
will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed
except as may be necessary to perform the obligations required under this Agreement or as may be required by
law. If disclosure is required by law, the party required to disclose Confidential Information shall
reasonably cooperate with the other party (at the other party's request and expense) so that the other party
may preserve the confidentiality of the Confidential Information to the extent reasonably possible.
8. Trademarks and Proprietary Rights
(a) The Racers Network™ grants Affiliate a limited, non-exclusive, non-transferable, revocable license to
use, reproduce and distribute the Offers in accordance with the terms of this Agreement. The Racers
Network™ specifically does not grant Affiliate any right to use the Marketer's trade name without the express
written consent of The Racers Network™. The Racers Network™ grants Affiliate a limited, non-exclusive,
non-transferable license for the term of this Agreement to use the The Racers Network™ Technology solely in
accordance with the terms of this Agreement. Affiliate grants The Racers Network™ a limited, non-exclusive,
non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in The
Racers Network™ promotional materials. Each license granted in this Section 8(a) is hereinafter referred to
individually as "Licensed Property."
(b) Neither party shall use the other party's Licensed Property in a manner that disparages the other party
or its products or services, or portrays the other party or its products or services in a false,
competitively adverse or poor light. Each party shall comply with the other party's requests as to the use
of the other party's Licensed Property and will avoid any action that diminishes the value of such marks.
(c) Subject to the limited licenses granted to The Racers Network™ and Affiliate under Section 8(a), each
party owns and shall retain all right, title and interest in its tradenames, logos, trademarks, service marks,
trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology,
including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights,
patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or
which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this
Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works
or otherwise use any of the Intellectual Property of the other party without the express written consent of
such party. All data that is collected by The Racers Network™ while performing its obligations under this
Agreement is the property of The Racers Network™. The Racers Network™ currently uses and plans to continue
to use data that it collects in an aggregate manner (i.e. that information which is gathered as a group of
demographic data, and is not personally or company identifiable).
9. General Provisions
(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such
party has all necessary right, power and authority to enter into this Agreement and to perform its obligations
under this Agreement; and (ii) nothing contained in this Agreement or required by such party's performance
hereunder will place such party in breach of any other contract or agreement to which it is bound or violate
any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement
shall not infringe or violate upon the Intellectual Property or privacy rights of any third party. EXCEPT
AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER THE RACERS NETWORK™ NOR AFFILIATE MAKE, AND EACH
SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIUM, PRODUCTS
AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.
(b) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state
and federal courts located in Ohio and agrees that any claim against The Racers Network™ shall be brought in
the state or federal courts located in Stark County, Ohio. The rights and obligations of the parties under
this Agreement shall be governed by and construed under the laws of the State of Ohio without reference to
conflict of laws principles. Affiliate consents to the personal jurisdiction of the state and federal courts
located in Stark County, Ohio and agrees that any lawsuit between Affiliate and The Racers Network™ shall be
filed in this venue.
(c) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance
of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause
beyond the reasonable control of such party; provided, that the party whose performance is affected by any
such event gives the other party written notice thereof within three (3) business days of such event or
occurrence.
(d) Relationship. The relationship of The Racers Network™ and Affiliate established by this Agreement is
that of independent contractors, and neither party is an employee, agent, partner or joint venture of the
other. The detailed operations of The Racers Network™ under this Agreement are subject to the sole control
and management of The Racers Network™. The parties acknowledge that, except as set forth in Section 5 hereto,
this Agreement sets forth a non-exclusive relationship between the parties.
(e) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed
effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified
facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return
receipt requested or by nationally-recognized overnight courier service to the address of the respective
parties as follows. To The Racers Network™ at the address listed on its Web site; to Affiliate at the address
set forth in the Affiliate Application;.
(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
(g) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the
other 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, and the same shall be and remain in full force and effect. The Racers Network™ reserves the right
to modify this Agreement at any time. Any such modification shall be immediately effective upon the posting
of the modified Agreement upon the The Racers Network™ Web site, or any successor Web site.
(h) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating
to the subject matter hereof, and merges all prior discussions and writings between them with respect to the
contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of
competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration, to
be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in
accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full
force and effect and bind the parties according to its terms.