Cooper Complete Terms and Conditions

The undersigned ("Affiliate"), by submitting the Affiliate Application and this Affiliate Advertising Agreement (collectively "Agreement") to SpeedFC Inc., a Delaware corporation ("SpeedFC"), acknowledges that it wishes to become an Affiliate, and in consideration of SpeedFC's approving Affiliate's Application, agrees to be bound by the terms and conditions of this Agreement as well as any specific terms and conditions required by any Web Merchant (as defined below) to participate in their respective affiliate program ("Web Merchant Specific Terms"). Affiliate warrants that all information provided in the Affiliate Application is true and accurate. Affiliate understands that SpeedFC 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 (individually a "Distribution Medium" and collectively, the "Distribution Media").

B. SpeedFC manages an online performance-based marketing network of online distribution channels owned and/or operated by various entities with whom SpeedFC has contracted (collectively "Distribution Partners" or "Affiliates") (which includes the Distribution Media, 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) ("Web Merchants") to place performance-based advertising offers in the form of banners, textual links, transactional ads or other relevant media with respect to each Web Merchant's products and services ("Products"), including the specific offers described in the individual Web Merchant Specific Terms (the "Offer"). 

1. Term

SpeedFC reserves the right to terminate this Agreement at any time upon notice to Affiliate via e-mail or any other means determined by SpeedFC. SpeedFC 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 SpeedFC are a party. Affiliate may terminate this Agreement upon thirty (30) days written notice to SpeedFC. 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

(a) Affiliate at its discretion, and upon approval by SpeedFC, shall determine which Offers it will display through its Distribution Media. Any Offer displayed by Affiliate shall be displayed on the terms and conditions set forth in this Agreement and in accordance with all applicable Web Merchant Specific Terms. In the event that SpeedFC or a Web Merchant believes that the display, or continued display, of an Offer may subject either party or Web Merchant to potential liability, Affiliate shall, upon written notice from SpeedFC, immediately remove the Offer from its Distribution Media. Affiliate shall not alter or modify the Offer as provided by SpeedFC.

3. Payment For Services

(a) SpeedFC 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 Web Merchant Specific Terms for all Offers placed with Affiliate which result in the sale of Products or other specified action from the Web Merchant's Web Site via hyperlinks from Affiliate's Distribution Medium.

(b) As used in this Agreement and in any applicable Web Merchant Specific Terms:

(i) "Net Monthly Sales" means the net dollar amount actually billed by Web Merchant for Products sold to a Qualified Customer (as defined below) during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, returned orders, transportation and packaging costs, insurance, duties, taxes and other governmental charges, and discounts or rebates actually granted by Web Merchant. (ii) A "Qualified Customer" means any individual or entity that is tracked by SpeedFC and who (a) purchases Products from the Web Merchant Site within the period of time as set forth in any applicable Web Merchant Specific Terms of clicking through to the Web Merchant's Site via hyperlinks from any Affiliate or Distribution Partner or from any other promotional placement provided by SpeedFC. A person or entity that supplies information previously known or possessed by Web Merchant is not a Qualified Customer.

(c) In the event an individual or entity visited more than one Affiliate or Distribution Partner of SpeedFC prior to purchasing Products from or undertaking some other specified action on a Web Merchant's Web site, the Affiliate or Distribution Partner operating the last Distribution Medium that such individual or entity clicked through to the Web Merchant's Web site shall be the only party entitled to receive an Advertising Fee for the Products sold.

(d) SpeedFC shall cause to be paid the Advertising Fees to Affiliate within thirty (30) days after the end of the month in which SpeedFC has received payment from each applicable Web Merchant for such Advertising Fees. SpeedFC does not aggregate payments remitted to it from different Web Merchants for the benefit of Affiliate.

(e) SpeedFC will only remit payment to Affiliate if Affiliate has been accepted by SpeedFC as an Affiliate and has provided SpeedFC with a correct mailing address and a tax identification number (W-9 form) 

(f) Regardless of the timing of any payment made by SpeedFC to Affiliate hereunder, SpeedFC shall be authorized to chargeback any Fee paid to Affiliate that specifically relates to (i) Products returned by Qualified Customers within ninety (90) days from the date of purchase; (ii) refunds or credits issued to Qualified Customers within ninety (90) days from the date of purchase; or (iii) overpayments to Affiliate, duplicate entries or other clear bona-fide errors. SpeedFC shall deduct the amount of the chargeback from and offset such amounts against any monies owed by SpeedFC to Affiliate. In the event that SpeedFC has not fully recouped, via offset, any chargeback within sixty (60) days from the date of the chargeback, Affiliate shall issue payment to SpeedFC for the outstanding amount of the chargeback.

(g) Amounts credited to Affiliate's account will not bear interest.

(h) Affiliate hereby authorizes SpeedFC to electronically transfer (via an automated clearing house or other means) amounts owed to Affiliate to Affiliate's account at the financial institution set forth in the Affiliate Application ("Bank"). Affiliate authorizes Bank to accept and to credit any payments transferred by SpeedFC to Affiliate's account. In the event that SpeedFC erroneously deposits funds into Affiliate's account, Affiliate authorizes SpeedFC to debit Affiliate's account in an amount not to exceed the amount of the erroneous credit. This authorization is to remain in full force and affect until SpeedFC and Bank have received written notice from Affiliate of its termination. If Affiliate changes bank accounts, it agrees to immediately notify SpeedFC of such change in order to allow SpeedFC to update its records accordingly.

4. Responsibilities of SpeedFC

SpeedFC and its technology partners 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 each Web Merchant's Web sites (?SpeedFC Technology?). SpeedFC Technology shall include the use of tags in HTML/Java or other appropriate languages (the "Tags") to enable SpeedFC to serve or provide Offers to Affiliate; (b) to provide Affiliate with product descriptions, GIF or JPEG Images, other product attributes (including the SKU's), product availability, order status, and shipment confirmation (each in a mutually acceptable format) for each Web Merchant that agrees to provide SpeedFC and Affiliate with such information; (c) to provide Affiliate with real-time access to records that will allow it to monitor the volume of Offers delivered by Affiliate and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by Affiliate shall be the sole property of SpeedFC or Web Merchant.

5. Responsibilities of Affiliate

(a) Affiliate covenants and agrees that it shall: (1) to continue to operate and maintain the Distribution Media (including any Web pages where any Offer appears) in a manner consistent with the intent and purpose of the Distribution Medium; (2) 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 Web Merchant Specific Terms; (3) to maintain its customer list in a manner that conforms with best practices of privacy policies; (4) 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 Web Merchants included in the Distribution Medium; (e) not alter, change substitute or modify the content or appearance to any end user of any web-site not included within the Distribution Media; (5) not use any information or content from any web-page not included within the Distribution Media in order to refer a Qualified Customer to a Web Merchant Site; (6) not obstruct access to any web-site not included within the Distribution Media; (7) not bundle downloadable shopping software applications with other applications, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end-user and de-installation must be obvious, easy and complete; and (8) agrees to comply with all applicable laws, rules, regulations and orders of the United States and any other state or country with jurisdiction over Affiliate or its activities in performance of its obligations under this Agreement, including, without limitation, all applicable rules and regulations of COPPA (Children?s Online Privacy Protection Act).

(b) Affiliate agrees and warrants that it will not send, transmit and/or distribute any Offer (as defined in the Agreement) via e-mail unless the intended recipient of the email has "opted in" to receive such Offer and such e-mail is not deemed "SPAM e-mail" (as defined below). An e-mail shall be deemed to be "SPAM e-mail" if such e-mail satisfies any one or more of the following criteria: (1) the e-mail fails to identify the Affiliate as the sender of the e-mail; (2) the e-mail contains a falsified sender domain name or non-responsive IP address; (3) the e-mail contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the e-mail; (4) the e-mail fails to notify the recipient that he or she may unsubscribe or "opt out" from further e-mail solicitations from the Distribution Partner/Affiliate; and (5) the e-mail fails to contain or include a valid return e-mail address or other internet based mechanism whereby recipients can unsubscribe or "opt out" from receiving further e-mail solicitations from the Affiliate. Such return e-mail address or other internet based mechanism shall remain valid for no less than thirty (30) days from the date of transmission of the e-mail and the Distribution Partner/Affiliate shall implement all requests to unsubscribe or "opt out" within ten (10) days of receipt of such request; (6) the e-mail fails to contain or include a valid physical postal address for the Distribution Partner/Affiliate (which shall not include a P.O. Box address); (7) the e-mail is sent to an individual who was not provided with an accurate, clear and conspicuous description of the marketing purposes for which his or her e-mail address may be used at the time such e-mail address was provided by the individual; (8) the e-mail fails to provide clear and conspicuous notice that the message is an advertisement or solicitation; (9) the e-mail is sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails; (10) the e-mail is sent unsolicited to a recipient that does not have a prior business or personal relationship with Distribution Partner/Affiliate; or (11) the e-mail contains nudity, profanity, sexually oriented materials, hate speech, or other obscene content. 

(c) Affiliate further agrees and warrants that it will comply with all local, state and federal laws (including, but not limited to, the "CAN-SPAM" Act, effective January 1, 2004) regarding the sending of e-mails.

(d) SpeedFC will notify Affiliate of any complaint regarding their e-mail practices or any alleged violation of the above warranties. Within forty-eight (48) hours of notification, Affiliate must respond to SpeedFC and provide source information as to any questionable e-mails including, but not limited to, the time, date, IP address and content of the questionable e-mails along with the applicable "opt-in" information (e.g. time, date and IP address of opt-in source) of the recipient. If the Affiliate fails to provide source information satisfactory to SpeedFC to demonstrate that (1) the recipient "opted in" to receive such e-mail and (2) the Affiliate did not send SPAM e-mail or otherwise breach the above warranties, then SpeedFC has the right to immediately suspend payment to and further performance of any services by the Affiliate. 

6. Indemnification; Limitation of Liability

(a) Affiliate agrees to indemnify, defend and hold harmless SpeedFC and each applicable Web Merchant (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 Media. Affiliate acknowledges that each Web Merchant 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 any Web Merchant seeking to enforce these indemnities.

(b) SpeedFC 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 SpeedFC.

(c) Neither Affiliate, SpeedFC nor any Web Merchant 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, SpeedFC nor any Web Merchant 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 SpeedFC?s willful misconduct or recklessness, the liability of SpeedFC shall not exceed the total amount of the Advertising Fees actually paid by SpeedFC to Affiliate under this Agreement and each applicable Web Merchant Specific Terms. Affiliate shall not be liable (i) for any errors or omissions included in the Offers received from SpeedFC or (ii) in the event that Affiliate encounters technical or other difficulties that may occasionally hinder the operation of the Distribution Medium. SpeedFC shall not be liable to Affiliate or any other person or entity for (i) any information provided to any person or entity by any Web Merchant or any illegal, inappropriate act or act of misconduct on the part of any Web Merchant; (ii) system downtime of SpeedFC or any Web Merchant; (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) SpeedFC, on behalf of each applicable Web Merchant, 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. SpeedFC specifically does not grant Affiliate any right to use any Web Merchant's trade name without the express written consent of SpeedFC. SpeedFC grants Affiliate a limited, non-exclusive, non-transferable license for the term of this Agreement to use the SpeedFC Technology solely in accordance with the terms of this Agreement. Affiliate grants SpeedFC a limited, non-exclusive, non-transferable, revocable license to use, reproduce and distribute its company name and logo for use in SpeedFC?s 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, blurs, dilutes or otherwise diminishes the other party's tradenames, trademarks, servicemarks or other intellectual property, 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. Without limiting the foregoing, Affiliate shall not, without written permission from SpeedFC or Web Merchant, (i) use any of Web Merchant's brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of Web Merchant's brand names, keywords or derivations of either of the above.

(c) Subject to the limited licenses granted to SpeedFC and Affiliate under Section 8(a), each party and each Web Merchant 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 SpeedFC while performing its obligations under this Agreement is the property of SpeedFC. SpeedFC 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 SPEEDFC 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) Privacy. Throughout the Term of this Agreement, both parties agree to adhere to fair information collection practices with respect to the receipt or provision of the Services. During the term of this Agreement, Affiliate shall use reasonable commercial efforts in accordance with accepted industry standards to ensure that the Distribution Media will (i) feature an easy to understand privacy policy that can be directly linked to from the Distribution Media that identifies the nature and scope of Affiliate's collection and use of information gathered by Affiliate and (ii) offer the user an opportunity to opt out from such collection and use of the data. The following language is recommended: "We may use third-party advertising companies, such as SpeedFC, Inc., to serve or track ads on our web site and other web sites. These companies may use information (not including your name, address, email address or telephone number) about your visits to this and other web sites in order to measure advertising effectiveness and to provide advertisements about goods and services that may be of interest to you." To find out more about the use of cookies and the information-gathering practices and opt-out procedures of SpeedFC, please refer to http://www.SpeedFC.com/privacy.html. Affiliate agrees never to alter any SpeedFC tags so as to include any personally identifiable or sensitive information of any visitors in such tags.

(c) Jurisdiction and Governing Law. Affiliate consents to the exclusive personal jurisdiction of the state and federal courts located in Texas and agrees that any claim against SpeedFC shall be brought in the state or federal courts located in Dallas County, Texas. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of Texas without reference to conflict of laws principles. Affiliate consents to the personal jurisdiction of the state and federal courts located in Dallas County, Texas, and agrees that any lawsuit between Affiliate and SpeedFC shall be filed in this venue.

(d) 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.

(e) Relationship. The relationship of SpeedFC 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 SpeedFC under this Agreement are subject to the sole control and management of SpeedFC. The parties acknowledge that, except as set forth in Section 5 hereto, this Agreement sets forth a non-exclusive relationship between the parties.

(f) 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 SpeedFC at the address listed on its Web site; to Affiliate at the address set forth in the Affiliate Application; and to Web Merchant at its principal business address.

(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

(h) 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. SpeedFC 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 SpeedFC Web Site or any successor Web site.

(i) 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 non-appealable 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.

The individual clicking on this link and submitting this application certifies that she/he is authorized to act on behalf of Affiliate and that she/he, on behalf of Affiliate, has read and accepted the terms, conditions and disclosures associated with this Agreement.

Contact me with any questions.

Affiliate Manager