BlueSky Auto Finance - Revshare [5127/5128 Only]

RESTRICTIONS

No IncentNo Coreg18 years oldWe only accept applications with an income of 1800 and above.Company desires to receive and Affiliate desires to refer customer inquiries in the form of Valid Leads (as defined below) to Company. Now, therefore, in consideration of the mutual benefits, agreements, representations, warranties and covenants contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and Affiliate hereby agree as follows: Section 1: Definitions As used in this Agreement and in the attached Appendices, the following words have the following meanings, whether used in the singular or plural: 1.1 “Compensation” means the amounts described in Schedule 1 hereto. 1.2 “Law(s)” means all federal, state and local laws, rules, and regulations as now in effect and as amended from time to time, including, without limitation, all consumer protection laws, rules and regulations of any kind. 1.3 “Lead” means a consumer inquiry concerning a loan for, or the installment sale financing of, an automobile purchase. 1.4 “Program” means the arrangement whereby Affiliate refers customers to Company’s website(s) and Company provides compensation to Affiliate for each Valid Lead. 1.5 “Valid Lead” means a consumer that has completed all required information on Company’s website(s) and placed within Company’s network of buyers. In addition, a Valid Lead must meet the following requirements: (i) the Lead must have come from a consumer on his or her own behalf; (ii) all required fields must have been completed by the consumer: and (iii) the consumer initiated an electronic communication and shared his or her information for the purpose of requesting and/or processing a financial product or service. Section 2: The Program 2.1 Pursuant to the terms and conditions of this Agreement, Affiliate agrees to refer customers to Company’s website(s) and Company agrees to compensate Affiliate for all Valid Leads. 2.2 Affiliate’s Compensation. Company will pay Affiliate monthly the total amount of accumulated Compensation for the prior calendar month within 30 days after the end of each month, by electronic funds transfer or check, at Company’s option. Affiliate chooses the following pricing option (check one box below) 2.2.1 □ STANDARD PRICING. If not prohibited by applicable law, Company will pay Affiliate, as the sole Compensation for its participation in the Program the amounts specified in the Standard Pricing column on Schedule 1 hereto for each Valid Lead placed in Company’s network. 2.3 Liaison Designation. Company and Affiliate shall each designate a representative to act as the primary liaison with respect to the relationship established under this Agreement and to evaluate and optimize the performance of this Agreement. Each party shall provide the other with the name and contact information of the assigned representative. Section 3: Covenants 3.1 Exclusivity. No Leads referred to Company’s website(s) have been used by Affiliate, nor have they been sold, transferred or otherwise provided by Affiliate to any third party offering the same or similar service or product that Company currently offers. 3.2 Compliance with Laws. Each Party will comply with all Laws applicable to the transactions contemplated by this Agreement. 3.3 Record Retention. The Parties shall maintain data, information, records and documents required to be maintained by applicable Laws for such time as is required by such Law. Each Party shall, to the extent permitted by applicable Laws, promptly provide to the other, upon request and at the requesting Party’s expense, copies of information, data, documents and records relating to any Lead residing on the custodian Party’s databases or otherwise in its possession. 3.4. Creative Approval. The content and formatting of any marketing materials, advertising materials, websites, emails (including, without limitation, "subject" lines, "date" lines, and "from" lines) or any other creative material, ("Creative") including any alteration or revision of such Creative at any time used in connection with this Agreement, must be approved in writing by Company before publication by Affiliate or any of Affiliates partners, subcontractors, agents and the like. 3.5. Unsubscribe. All emails will contain Company's physical address and "unsubscribe" link, as well as any other links or data Company may require from time to time. Section 4: Representations and Warranties 4.1. Qualification and Authority. Each Party is duly organized, validly existing, and qualified and authorized to transact business in, and is in good standing under the Laws of the jurisdiction of its organization and each jurisdiction in which it performs or will perform its obligations under this Agreement. Each Party has the power, authority and legal right to execute, deliver, and perform this Agreement and the transactions contemplated hereunder. 4.2 No Claims. Each Party represents that there is no pending claim, causes of action, governmental action or litigation that, if determined adversely to Affiliate or Company would materially affect Affiliate’s or Company's ability to perform their obligations under this Agreement. 4.3 Privacy Policy. Each Party represents that it will adopt and maintain a comprehensive privacy policy with respect to its handling of consumer information received or submitted under this Agreement. 4.4 Information Security Policy. Each Party represents that it has developed, implemented and will maintain effective information security policies and procedures that comply with applicable Laws and that include administrative, technical and physical safeguards designed to: (a) ensure the security and confidentiality of information received or submitted as part of a Lead; (b) protect against anticipated threats or hazards to the security or integrity of such information; and (c) protect against unauthorized access or use of such information. All personnel handling such information have been trained in the implementation of each Party’s information security policies and procedures. Each Party regularly audits and reviews its information security policies and procedures to ensure their continued effectiveness and determines whether adjustments are necessary in light of circumstances including, without limitation, changes in technology, customer information systems or threats or hazards to stored information. Section 5: Proprietary Information 5.1 Proprietary Information. The Parties may provide each other with information, whether in writing or orally, concerning each Party or its related entities that is proprietary and confidential to such Party, including, but not limited to, past, current or possible future products, services, customers, contracts with third parties, projects, business operations, marketing ideas, objectives, methodology, strategy, financial data and results, competitive advantages and disadvantages, processes, technology, specifications, and trade secrets (collectively, the “Proprietary Information”). 5.2 No Disclosure of Propriety Information. Except as otherwise provided in this Agreement, each Party agrees it will not, without the other Party's prior written consent: (a) disclose the specific terms of this Agreement, except that either Party may make such disclosures as appropriate to its related entities, auditors, consultants, or regulatory agencies, or as compelled by Law; or (b) disclose to any third party any Proprietary Information of the other Party, except as required by Law, or to perform its obligations under this Agreement, or with the express written consent of the other Party. Each Party also agrees, upon the request of the other Party, to return or destroy any such Proprietary Information within 10 days of receiving a request for such return or destruction from the other Party and immediately upon termination as provided in Section 6. Section 6: Term and Termination This Agreement shall continue in full force and effect until Affiliate or Company provides 30 days prior written notice to the other Party of its intent to terminate. In the event of termination: (a) Company shall be entitled to all Leads (whether or not Valid Leads) provided to Company by Affiliate; and (b) Affiliate shall be entitled to payment of all Compensation which accrues up to and including the date of termination, together with all Compensation from Valid Leads placed by Company in its retail or wholesale networks after the date of termination. The provisions of this Sections 3 - 10 of this Agreement shall survive for a period of not less than 2 years following termination. Section 7: Liability EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR DIRECT OR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Section 8: Disclaimer of Warranty as to Website NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES, OR ANY REPRESENTATION, THAT THE OPERATION OF ITS WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Section 9: Indemnification 9.1 Representations, Warranties and Covenants. Notwithstanding anything to the contrary in this Agreement, each Party, on its own behalf and on behalf of any third party partners, affiliates, agents, service providers and the like it may use in the performance of this Agreement (the “Indemnifying Party”) will indemnify and hold the other Party (the “Indemnified Party”) and the Indemnified Party’s officers, directors, employees, managers, contractors, agents, successors, and assigns, harmless from any and all liabilities, damages and related costs and expenses, including fines, levies, assessments, reasonable attorney’s fees, and disbursements and costs of investigations, litigation, settlement, judgment, interest and penalties (collectively, “Losses”) arising from or relating to (a) any material breach of the representations and warranties of the Indemnifying Party set forth in Section 4 above or (b) any material breach of the covenants in Section 3 or (c) any other promises made by Indemnifying Party pursuant to this Agreement. 9.2 Consumer Claims Relating to Email Marketing or CAN SPAM. Affiliate shall indemnify, defend and hold Company and Company’s officers, directors, employees, managers, contractors, agents, successors, and assigns, harmless from any and all Losses and threatened Losses, arising from, relating to, or incurred in connection with claims against Company alleged by consumers whose personal information and/or email address was used for marketing or advertising purposes in order to direct consumers to Company’s website(s). Section 10: Miscellaneous 10.1 Independent Contractor Relationship. The relationship between Company and Affiliate is that of independent contractors and shall not be construed as a joint venture, partnership or principal-agent relationship, and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other in any agency or any other capacity or to make commitments of any kind for the account of or on behalf of the other, except as expressly set forth in this Agreement. 10.2 Entire Agreement. This Agreement, including any Appendices constitutes the entire agreement between the Parties relating to the subject matter. This Agreement may be amended from time to time in writing by mutual agreement of the Parties. 10.3 Arbitration. Each party agrees that a “dispute” is any claim in contract, tort, statute or otherwise between parties, arising out of or relating to the rights and obligations set forth in this Agreement. “Dispute” includes any disagreement over the interpretation and scope of this agreement to arbitrate, or the arbitrability of the dispute itself. Any dispute shall be resolved by neutral, binding arbitration and not by a lawsuit. The arbitration will be by one arbitrator. Any of the following arbitration organizations may be selected by the Party seeking arbitration in its sole discretion and its rules shall apply to the proceeding: the American Arbitration Association, 120 Broadway, New York, NY 10271 (www.adr.org), or JAMS, 1920 Main St., Ste. 300, Irvine, CA 92614 (www.jamsadr.com). Each party acknowledges that it has had an opportunity to review the rules of each organization by contacting the organization or visiting its website. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law in making an award. Each party will pay its own filing, administration, service or case management fee in relation to the arbitration. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. The arbitrator’s award shall be final and binding on all parties. Any arbitration under this agreement to arbitrate shall be governed by the Federal Arbitration Act and not by any state arbitration law. This agreement to arbitrate shall survive any termination, payoff or transfer of the rights and obligations set forth in this Agreement. 10.4 Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in all respects by the laws of the State of California without regard to any conflicts of law principles or choice of laws; which would require the application of laws of another jurisdiction. Any dispute arising out of or relating to the rights and obligations set forth in this Agreement shall be resolved through binding arbitration held in the State of California as set forth in Section 10.3 above. 10.5 Waivers; Remedies are Cumulative. No failure or delay by a Party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, and no course of dealing between the Parties, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any Party will preclude any other or further exercise thereof. 10.6 No Third Party Beneficiaries. Except as otherwise provided in this Agreement, nothing in this Agreement is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the Parties to this Agreement.