Consumer Publishing Reseller AGREEMENT
(After completed and signed, please fax the agreement to 805-480-3307 and send
This Reseller Agreement (this "Agreement"), dated as of _________, is made by and between:
whose address is: ______________________________________________________________________
("The Reseller"), and CONSUMER PUBLISHING whose address is P.O. Box 830, Newbury Park, CA 91319, with reference to the following facts:
This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in Consumer Publishing's Reseller Program. As used in this Agreement, "we" means Consumer Publishing, "you or reseller" means the applicant. "Program" means Consumer Publishing's Reseller Program, "fees" means sales commission that we pay you for sales you generate. "Site" means a World Wide Web site and, depending on the context, refers either to Consumer Publishing's [www.consumerpublishing.com or www.consumerauto.com] site or to the site that you will link to our site.
To begin the enrollment process, you will submit a complete Program application (including this agreement with your dated signature) via our site and/or facsimile, and the original sent to us by hand-delivered mail. We will evaluate your application and will notify you of your acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, sites that: promote sexually explicit materials, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or promote illegal activities that may violate intellectual property rights. If we reject your application, you are welcome to reapply to the Program at any time. After you have been approved, you will be provided with a reply (via email) which will give you specific linking instructions.
3. reseller program:
Reseller agrees to include a link(s) anywhere on its network of sites that points directly to Consumer Publishing's web site. We will make available banners, buttons or other creatives for you to link from. We will process all orders placed by individuals who follow special links from your site to the ConsumeAuto.com and/or ConsumerPublishing.com order page. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. This may include but is not limited to credit card orders that do not receive address verification or which we believe to be fraudulent, etc. We will be responsible for all aspects of order processing and customer service. We will track the sales from individuals who use special links from your site to our site and will make available reports summarizing this sales activity. At the end of each quarter, you will receive a commission check based upon the productivity of your referred traffic subject to the descriptions set forth in Section 4 of this agreement. To permit accurate tracking, reporting, and fee accrual, you must ensure that the links between your site and our site are properly connected to http://www.consumerpublishing.com/shop
All fees and payments stated herein exclude, and you shall pay, any federal, state or local income tax, related to your performance, obligations or exercise of your rights under this Agreement and any related duties, tariffs, imposts and similar charges, exclusive of taxes based on your net income. You shall be responsible for any and all misuse or apparent misuse of the Program. Compensation payable to you on account of misuse or apparent misuse shall be suspended or refunded to Consumer Publishing upon request and/or deducted from accrued commissions. Consumer Publishing will notify reseller of such actions.
4. Commission fees:
To generate a commission, an individual customer must follow special links from your site to Consumer Publishing's order page and subsequently, in the same visit, purchase one of our publications. We will pay you fees based on thirty percent (30%) of the retail price of each of our publications. Subject to a minimum amount described in Section 5 below, we will pay you commission fees as follows:
$2.98 each for The Used Car Buyer's Manual: ISBN 0964778009 (retail $9.95)
$2.38 each for The Used Car Buyer's Manual II: ISBN 0964778017 (retail $7.95)
Consumer Publishing may (at its sole discretion) increase or decrease the above fees, but not without 30 day written notice to the reseller.
5. Payment schedule:
We will pay you commission fees on a quarterly basis. Approximately 30 days following the end of each calendar quarter, we will send you a check for the commission fees earned during that quarter, less any taxes that we are required by law to withhold. However, if the fees payable to you for any calendar quarter are less than $50.00, we will hold those fees until the total amount due is at least $50.00 or (if earlier) until this Agreement is terminated. If, for any reason, we issue a credit to a customer that was referred by the reseller, we will deduct the corresponding fee from your next quarterly payment. If there is no subsequent payment, we will send you a bill for the fee.
6. Policies and pricing:
Customers who purchase our publications through this Program will be deemed to be customers of Consumer Publishing. Accordingly, all Consumer Publishing rules, policies, and operating procedures will apply to those customers. We may change our policies, pricing, and operating procedures at any time.
7. Reseller Responsibilities:
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for the technical operation of your site and all related equipment linking to our site, as well as ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights) and ensuring that materials posted on your site are not libelous or otherwise illegal.
8. Limitation of Liability; Disclaimer:
It is mutually acknowledged that data entry, communication and storage are subject to a possibility of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Neither party hereto undertakes any liability to the other for any such errors, omissions, delays, or losses. Further, Consumer Publishing does not assume liability for the products offered or sold to its visitors.
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER TO THIS AGREEMENT.
Consumer Publishing shall use its best commercially reasonable efforts to provide in good faith the web site content described in this Agreement and to work with reseller to establish and maintain links to Consumer Publishing web sites. No other warranties are provided other than as contained in this Agreement or any schedule hereto.
ALL INFORMATION OR CONTENT TO BE OFFERED OR FURNISHED BY Consumer PublishinG, INCLUDING WITHOUT LIMITATION Consumer PublishinG ADVERTISEMENTS AND BRAND MARKS, THE WEB SITE CONTENT IS BEING OFFERED OR FURNISHED ON AN "AS IS" BASIS. Consumer PublishinG MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING SUCH INFORMATION. Consumer PublishinG SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR AGAINST INFRINGEMENT. Consumer PublishinG SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES RESULTING FROM OR CAUSED BY SUCH INFORMATION, INCLUDING WITHOUT LIMITATION FROM ANY INABILITY TO ACCESS OR USE SUCH INFORMATION, DELAYS IN OPERATION OR TRANSMISSION, DELAYS IN UPDATING, MODIFYING OR AMENDING SUCH INFORMATION, COMMUNICATIONS LINES FAILURE, OR ANY ERRORS OR OMISSIONS IN THE FORM OR CONTENT OF SUCH INFORMATION. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
Each party agrees to indemnify, defend and hold harmless the other party and its shareholders, directors, officers, employees, agents and affiliates from and against any and all claims, actions and proceedings (including but not limited to reasonable attorneys fees and expenses), damages, judgments, settlements and costs incurred in connection therewith) that arises out of or relates to any breach or omission by such indemnifying party with respect to its obligations under this Agreement or rising out of the negligence or willful misconduct of such party in connection with the performance of its duties hereunder. Any person claiming any right of indemnification under this Agreement ("Indemnified Party") as a result of a Third Party Claim shall notify the party from whom indemnification is sought (the "Indemnifying Party") pursuant to the provisions hereof (a "Claim Notice"), specifying the nature of the claim, and giving notice of any fact upon which the Indemnified Party intends to base a claim for indemnification hereunder. The Indemnifying Party shall have 30 days (or, if shorter, a period to a date not less than the date when a responsive pleading or other document is required to be filed giving effect to any available extension) (the "Notice Period") to notify the Indemnified Party (a) whether or not it disputes its liability for indemnification of the Third Party Claim and (b) if liability is not disputed, whether or not it desires to defend the Indemnified Party. If the Indemnifying Party elects to defend by appropriate proceedings, such proceedings shall be promptly settled or prosecuted to a final conclusion in such a manner as is reasonably calculated to avoid any risk of damage to the Indemnified Party, and all costs and expenses of such proceedings and the amount of any judgment shall be paid by the Indemnifying Party.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER ORDERS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
11. ARBITRATION OF DISPUTES:
Each of the parties hereby expressly waives any right to a trial by jury in any action or proceeding to enforce or defend any power, right, privilege or remedy under or in connection with the agreement, and agrees that any such action shall be subject to binding arbitration by a neutral arbitrator, unless the party initiating the action wishes to pursue the action in Ventura county, California small claims court. Any binding arbitration shall be conducted in accordance with the rules of either Judicial Arbitration And Mediation Services, Inc. /Endispute (JAMS/Endispute) or the American Arbitration Association (AAA), whichever the initiating party of the arbitration selects. The parties may agree in writing and signed by authorized representatives of both parties to use different rules and/or arbitrator(s). In all other respects, the arbitration shall be conducted in accordance with Part III, Title 9 of the California Code of Civil Procedure. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties shall have the right to discovery in accordance with Code of Civil Procedure §1283.05
NOTICE: BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION, OTHER THAN THOSE ACTIONS FILED IN SMALL CLAIMS COURT, DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY SIGNING THIS AGREEMENT YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFCALLY INCLUDED IN THE ARBITRATION OF DISPUTES PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBTITRATION PROVISION IS VOLUNTARY.
12. ATTORNEYS FEES & COSTS:
In any action, proceeding, or arbitration between the parties arising out of this agreement, the prevailing party of the two shall be awarded costs of litigation and reasonable attorney fees from the non-prevailing party. For small claims matters the reasonable attorney fees, if any, for representing the prevailing party related to any such dispute prior to filing the small claims case shall not exceed $500.00.
13. CHOICE OF LAWS, JURISDICTION AND VENUE:
This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of laws. Any action relating to this Agreement not submitted to arbitration must be brought in the State Courts located in the State of California, Ventura County and you irrevocably consent to the jurisdiction of such court. Any action relating to this Agreement submitted to binding arbitration, will have the Arbitration take place in Ventura County, unless the arbitration parties specifically agree in writing and signed by authorized representatives of both parties to another location.
14. Terms of the agreements:
The term of this Agreement will begin upon our acceptance of your Program application along with your dated signature on this Agreement. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commission fees on orders originating during the term of this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available commission fees, fee schedules, payment procedures, and Program rules. We will send you notice via email and U.S. mail, to the most recent address we have, alerting you to a change in the Agreement. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT WITHIN THIRTY (30) DAYS OF THE DATE THE NOTICE WAS SENT TO YOU. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
16. Relationship of parties:
Consumer Publishing and linked Resellers are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this section.
17. termination of agreement:
Either party may terminate this agreement at any time for any reason by notifying the other party by u.s. mail and email, to the other partys last known addresses.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. This Agreement supersedes all prior agreements, promises, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer, employee, or representative of any party hereto. No amendment hereof except for those set forth in Paragraph Fifteen (15) of this document shall be effective unless in writing and signed by authorized representatives of both parties
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of thedate first written above.
By: ____________________________________________ (leave for Consumer Publishing)
Title: ____________________________________________ (leave for Consumer Publishing)
Your Company Name: ____________________________________________________
Your signature: __________________________________________________________
Your name: _____________________________________________________________
Your title: ______________________________________________________________
Your domain name: ______________________________________________________
Your phone number: _____________________________
Your fax number: _______________________________
Your email address: _____________________________
Checks made payable to: _________________________
Tax ID Number: ________________________________