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MyAffiliateMedia AFFILIATE ASSOCIATION AGREEMENT THIS AFFILIATE ASSOCIATION AGREEMENT ("Agreement") is entered into by and between MyAffiliateMedia, Inc., d/b/a MyAffiliateMedia, a Delaware Corporation ("Company"), and the applying host site's representative submitting the Affiliate Network Application ("Affiliate") set forth on the signature page hereto ("Affiliate"), referred to herein jointly as the parties ("Parties;" each a "Party"). WHEREAS, Company and Affiliate desire to provide for the terms and conditions of this Affiliate Association Agreement as more specifically set forth herein; NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the Parties agree to be legally bound as follows: Definitions "Advertisement" means the graphic or text file(s) contained in the Company Network and available for Affiliates' use. "Click-Through" means the number of times, as recorded by Company's server, a user directly interacts with (i.e., clicks on) an Advertisement linked for transfer to the Merchant's site or suggested destination. Advertising campaigns conducted on a cost per click basis are known as "CPC". Click-Throughs are counted for Unique, Valid Users by a twenty-four (24) hour period. "Company Network" means Company's affiliated group of third party Websites by which Company may insert Advertisements. "Company" means MyAffiliateMedia, Inc. d/b/a MyAffiliateMedia, a Delaware corporation. "Double Opt-In" means that the Website may not use a User's collected information unless the User specifically directs the Site to do so and also receives and responds positively to an e-mail confirmation from Company. "Impression" means the number of times an Advertisement is served to a User. Company shall measure impressions in accordance with its standard methodologies and protocols. Advertising campaigns conducted on a cost per Impression basis are known as "CPM". "Opt-in" means that the consumer has made an active,
affirmative choice to select the advertisement in question in order
to be counted as a Unit. Forced, negative choice, passive, opt-out
or other types of non-active, non-affirmative choice actions are
NOT "opt-in". Start Date" means the first day an Advertisement may be displayed on the Company Network. "Stop Date" means the last day an Advertisement may be displayed on the Company Network. "Unit" means a User's completion of the act requested by the specific Merchant supplying Advertisements through MyAffiliateMedia. If a User is directly compensated for completing such required action, such action is not considered a Unit. "Unique Sign-Up" means a User who Opts-In or Double Opts-In to a Website who is not already a member of or registered with the Merchant or Merchant's Campaign as specified in the Affiliate Network Application. "User" means any person accessing a Website or electronic mail services. "Valid Sign-up" means a Unique Sign-up who provides complete information as required by Merchant. A Sign-up who is directly compensated for providing the required information is not Valid. "Website" means an HTML document containing a set of information available via the Internet. 1. Advertising Services. 1.1 Company hereby grants to Affiliate, at the agreed to pay-out price and provided that Affiliate complies with all provisions of this Agreement, a nonexclusive, limited, revocable license to (i) market, display, perform, copy, transmit, and promote the Advertisement in connection with its obligations hereunder; and (ii) market display, perform, copy, transmit, and promote the Advertisement to third parties in connection with its obligations hereunder. Affiliate's use of Company copyrighted materials in violation of this agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in Affiliate being held liable under applicable law. 1.2 Upon acceptance by Company of a properly completed Affiliate Network Application, Company shall provide Advertisements for placement on the Company Network. If an Affiliate Network Application is not properly completed on behalf of Affiliate, then this Agreement shall be of no force and effect, and Company shall have no obligation to Affiliate hereunder. 1.3 For the purposes of this Agreement, Company's acceptance of an Affiliate Network Application shall in all cases be evidenced by an e-mail clearly communicating Company's acceptance ("Acceptance E-mail") and also containing further instructions for Affiliate regarding participation in the Company Network. If an Acceptance E-mail is not sent to Affiliate or Affiliate does not begin participation in the Company Network in a timely manner upon receipt of an Acceptance E-mail, then this Agreement shall be of no force and effect, and Company shall have no obligation to Affiliate hereunder. 1.4 The Company's sole obligation to Affiliate under this Agreement with respect to Advertisements shall be to provide such Advertisements for placement on the Company Network, as provided in this paragraph. 2. Rules and Regulations. In addition to the terms set forth in the Affiliate Network Application, if any, the following Rules and Regulations shall be followed at all times: 2.1. All site submissions are subject to review and may be rejected for any reason by Company. The following are examples of the types of sites that will not be accepted: adult sites containing pornographic or offensive material; sites engaged in the piracy of copyrighted, trademarked, or patented material; software trading sites; hacking sites; libelous or defamatory sites; sites containing software piracy; and sites with any illegal activity whatsoever. The examples are meant to be illustrative only and under no circumstances shall be construed as an exhaustive list. 2.2. Company will only pay for Unique Sign-Ups, as defined within the network. Any data submitted that is not a Unique Sign-Up or completed Unit, will not be paid. Upon payment for the Unit, as defined within the network, Company shall have no further obligation to Affiliate. Company and/or its Merchants, in their sole discretion, shall have the right to market and re-market the person(s) and or data represented in the Unit, without further obligation to Affiliate. 2.3. Company will only pay for Valid Sign-Ups, as defined within the network. If required by the Merchant, all leads must be Double Opted-In in order to be Valid; any leads that do not Double Opt In and/or where the lead does not complete all required information, will not be paid. 2.3.1 Affiliate and Company acknowledge that any leads rejected as not a Valid Sign-Up may, on occasion, be retained and marketed by the Merchant and/or Company, to the extent possible. The Unit price for Valid Sign-ups offered to and accepted by Affiliate includes compensation for such invalid data and the price for Valid Sign-ups would otherwise be less. 2.4. Affiliate must: (i) place Advertisements through Company's graphics; (ii) load Advertisements from the Company's server only; (iii) use only "html" or other code supplied to Affiliate by Company with no modification by Affiliate. 2.5. Affiliate must not: (i) incentivize offers or create the appearance to incentivize offers (ii) place statements near the Advertisements requesting that Users "click" on the Advertisement (i.e., "Please "click here") or "visit" the sponsor (i.e., "Please visit our sponsor."); (iii) place misleading statements near the Advertisement (i.e., "You will win $50,000."); (iv) copy Company's ads and display them from Affiliate's site directly; (v) change any Advertisement in any way without Company's prior express written permission; (vi) redirect traffic to a Website other than that listed by the particular Merchant; (vii) ask Users to take advantage of other Advertisements or offers other than those listed by the particular Merchant. Network reserves the right to define incentivization; (viii) use any name other than Affiliate's in the "from" box when sending an e-mail to a consumer; using any other name, specifically including but not limited to MyAffiliateMedia's name or the ultimate merchant's name, is prohibited and will not be paid; and/or (ix) replace or modify Affiliate tracking codes. If these conditions are not met your account will be terminated and your will not be paid. 2.6. All Click-Throughs must: (i) go through Affiliate's unique gateway; (ii) be recorded by Company's server; (iii) be non-incentivized. If these conditions are not met your account will be terminated and your will not be paid. 2.7 Company deems any conversion ratios more than 2% above the current national average and instances where 30% or more of data submitted is found to be fraudulent as per se evidence of illegal activity. If, in its discretion, Company deems Affiliate to be conducting illegal activity, such illegal activity will result in immediate termination of this Agreement without payment to the Affiliate for any leads or data submitted. 2.8. Company will periodically review Affiliate's Website(s) in order to determine whether or not Affiliate or Click-Throughs are violating any of the terms herein. If, in its reasonable discretion, Company deems that Affiliate or Click-Throughs are violating any of the terms of this Agreement, such violation will result in immediate termination of this Agreement and any remaining account balances will not be paid. 2.9 If Affiliate conducts e-mail campaigns to its users, Affiliate must, if requested, be able to supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the Affiliate to conduct such e-mail campaign. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate. Affiliate will respond to all consumer complaints in a timely fashion and shall immediately remove any person from its database who makes such request for removal. In addition, all e-mail must contain a functioning unsubscribe link which, when activated by a user, actually and permanently removes the user's e-mail address from the affiliate's database. Affiliate agrees to be in complete compliance with the CAN-SPAM Act. 2.10 ALL E-MAIL CAMPAIGNS MUST ONLY BE CONDUCTED TO PERSONS WHO HAVE GIVEN PRIOR PERMISSION! FAILURE TO FOLLOW THIS RULE IS A VIOLATION OF THIS AGREEMENT AND MAY RESULT IN FORFEITURE OF ALL PAYMENT DUE. REPEAT OFFENDERS MAY BE REMOVED FROM THE NETWORK. BY CONDUCTING AN e-mail CAMPAIGN WITH ADVERTISEMENTS AVAILABLE THROUGH THE COMPANY NETWORK, AFFILIATE REPRESENTS AND WARRANTS THAT SUCH CAMPAIGN IS CONDUCTED IN ACCORDANCE WITH THE PRIVACY POLICY SET FOR ON AFFILIATE'S WEBSITE AND IN ACCORDANCE WITH STATE AND FEDERAL LAW; INCLUDING BUT NOT LIMITED TO THE CAN-SPAM ACT OF 2003. 3. Modifications. 3.1. Company reserves the right to change, modify, add, or remove portions of this Agreement at any time, provided that Company first notifies Affiliate within five (5) business days via email. Company also reserves the right to add to, change, modify, suspend, or discontinue any aspect of the service at any time, provided that Company first notifies Affiliate within five (5) business days via email. In either case, such changes or modifications will be incorporated by reference to this Agreement unless Affiliate responds within five (5) business days of the e-mail transmittal. Affiliate's rejection of such changes or modifications may be grounds for termination of this Agreement by Company. 3.2. No change, amendment, or modification of any provision of the Agreement by Affiliate will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so. 4. Auditing and Tracking of Campaigns. 4.1. Affiliate acknowledges that Company requires a tracking system that will serve as the verifiable log of responses for computing billing amounts and as the reporter of registrations by URL, Origin ID, or Affiliate ID code. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Company before any Advertisement(s) will be provided by Company. 4.2. Company requires a weekly and a month's end summary report reflecting the exact number of Units delivered. The Company, in its reasonable discretion and by consultation with Affiliate, will determine the form of said reports. 4.3. Company has the final responsibility for determination of Units delivered. 5. Payment. Company shall process and send US and Canadian Affiliate's payment within fifteen (15) days from the last business day of which earnings are accrued, if that amount exceeds twenty-five (25) dollars. For all co-registration campaigns, payment is contingent and will be made upon Company's receipt of payment from the Merchant. As it relates to International Affiliates outside of the United States and Canada, payments will be made via bank wire to accounts that have reached a balance of $1000 USD or more. 6. Term. This Agreement shall continue for the term set forth above, provided that either Party may terminate this Agreement upon thirty (30) business days prior written notice. Provided however, that Company reserves the right to terminate this Agreement immediately without payment in the event that the Affiliate violates any of the rules set forth above or any other provisions of the Agreement. In addition, Company, at its sole discretion, reserves the right to terminate the Agreement or to reduce host site's payment if it deems Affiliate's Sign-Ups are violating this Agreement. 7. Non-Circumvention. 7.1. Affiliate shall not intentionally solicit, induce, recruit, encourage, directly or indirectly, any Merchant that is known to Affiliate to be an advertising client and/or customer of Company (e.g., an Merchant which runs Ads on Affiliate's Website through the Company), for purposes of offering products and services that are competitive with Company (including the provision of advertising inventory) nor contact such Merchant for any purpose, during the term of Affiliate's membership in the Company Network and for the 90-day period following termination of Affiliate's membership in the Company Network; provided however, that the foregoing restriction shall not apply to Merchants with whom Affiliate already has a relationship prior to the placement for advertising on Affiliate's site on behalf of such Merchants by Company, as explicitly proven by documented evidence of such prior relationship provided by Affiliate to Company immediately upon Company's written request. 8. Representations and Warranties/Non-Solicitation. 8.1. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power, and authority to enter into the Agreement, to grant the rights and licenses granted and to perform the acts required of it; (ii) the execution of the Agreement by such Party, and the performance by such Party of its obligations and duties, do not and will not violate: any agreement to which such Party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; (iii) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party in accordance with its terms; (iv) such Party shall render all services to the other Party in a professional and workmanlike manner, in accordance with generally accepted industry standards; (v) such Party will abide by the terms and conditions set forth in this Agreement and (vi) 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 the Agreement. 9. No Additional Warranties. The advertising service provided by the Company, its use and the results of such use are provided "as is." TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. COMPANY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON COMPANY'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. 10. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED BELOW WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. COMPANY SHALL NOT IN ANY EVENT BE LIABLE TO AFFILIATE FOR MORE THAN THE AMOUNT PAID TO AFFILIATE HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF SERVICE. 11. Indemnification. 11.1. Each Party shall defend, indemnify, and hold the other Party and its officers, directors, agents, affiliates, distributors, franchisees, and employees harmless from and against any and all third party claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorney's fees) arising out of any claim, demand, action, suit, investigation, arbitration, or other proceeding by a third party out of the indemnifying Party's material breach of any duty, representation, or warranty under the Agreement. 11.2. Affiliate is solely responsible for any legal liability arising out of or relating to (i) the Affiliate's Website(s), (ii) any material to which users can link through the Affiliate's Website(s) and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any e-mail campaign conducted by Affiliate, including but not limited to any SPAM or fraud complaint and/or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. Affiliate shall indemnify, defend, and hold harmless Company and its officers, agents, affiliates and employees from and against any and all claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings (a) for libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Affiliate's Website(s); (b) arising out of any material breach by Affiliate of any duty, representation or warranty under this Agreement; (c) arising out of any breach by Company of any duty, representation, or warranty under to provide Advertisement(s) for placement on the Company Affiliate's Website(s) due to any breach by Affiliate of this Affiliate Network Application, or (d) relating to a contaminated file, virus, worm, or Trojan horse originating from the Affiliate's Website(s). 11.3. If the Party entitled to indemnification ("Indemnified Party") becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration, or other proceeding against the Indemnified Party by any third party (each an "Action"), the Indemnified Party shall give the other Party ("Indemnifying Party") prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnified Party, with the Indemnifying Party and its counsel in the defense, shall have the right to participate fully, at its own expense, in the defense of such Action. If a dispute arises over whether the Party requesting indemnification hereunder is so entitled, the Party requesting indemnification shall be free, without prejudice to any of such Party's rights hereunder, to compromise or defend (and control the defense of) such Action. Any compromise or settlement of an Action shall require the prior written consent of both Parties hereunder; such consent will not be unreasonably withheld or delayed. 12. Arbitration. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties shall use the following procedure: (a) A meeting shall be held within seven (7) days of request (made pursuant to the section numbered "13.13" and entitled "Notice" below) among the Parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. (b) If the Parties have not succeeded in negotiating a resolution of the dispute at such meeting, or any extension thereof to which they shall mutually agree, the Parties agree that such dispute, claim, question, or disagreement arising out of or relating to this Agreement or the breach thereof, shall be submitted to binding arbitration in Delaware in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by such binding arbitration may be entered in any court having jurisdiction. The losing Party shall pay all fees of the arbitration, as well as the fees incurred by the successful Party, which determination shall be part of the award of the arbitration. 13. General. 13.1 Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement will 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; rather the same will be and remain in full force and effect. 13.2 Force Majeure. Neither Party shall be liable for, or considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such Party's reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence (including without limitation, the failure of Company to provide Advertisement(s) for placement on Affiliate's Website(s)); provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party. 13.3 Independent Contractors. The Parties to the Agreement are independent contractors. Neither Party is an agent, representative, partner, employee, or joint venture of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party. The Agreement will 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 part. 13.4 Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. 13.5 Construction: Severability. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further that, all provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect. 13.6 Remedies. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. 13.7 Entire Agreement. The Agreement includes any accepted Affiliate Network Application(s) or duly executed Insertion Order(s) as a material part. The Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the transactions set forth herein. Neither Party will be bound by, and each Party specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of the Agreement (whether or not it would materially alter the Agreement) and which is proffered by such Party in any correspondence or other document, unless the Party to be bound specifically agrees to such provision(s) in writing. 13.8 Amendment. No change, amendment, or modification of any provision of the Agreement will be valid unless set forth in a written instrument signed by both Parties, subject to the Company's reserved right to modify this Agreement as stated in the section numbered "3" and entitled "Modifications" above. 13.9 Assignment. Neither Party to this Agreement shall sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign or transfer this Agreement and their obligations hereunder to any successor-in-interest of such Party by way of sale, merger, consolidation, reorganization, restructuring or the acquisition of substantially all of the business and assets of the assigning Party of more than 75% of the outstanding stock of the assigning Party. Subject to the foregoing, the Agreement will be fully binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns. 13.10 Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement. 13.11 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. 13.12 Governing Law: Jurisdiction and Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of of Delaware, except for its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the state courts of Delaware and the federal courts situated in the United States District Court for the District of Delaware, in connection with any action arising under this Agreement. 13.13 Notice. All notices, requests, demands, and other communications to Company hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice): If to Company, to the attention of both the CEO and General Counsel, each at the address of: MyAffiliateMedia If to Affiliate, to the executive and e-mail address set forth on the Affiliate Network Application. IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and binding upon Affiliate's submission and Company's acceptance of Affiliate's properly completed Affiliate Network Application without need for further action by MyAffiliateMedia.
1. Parties. 1.1 This agreement, in conjunction with the corresponding Insertion Order, shall constitute Merchant's, its clients' and agents' (herein collectively referred to as "Merchant") understanding that MyAffiliateMedia's ("MyAffiliateMedia.com") sole obligation is to promote the Merchant's product or services by showing banners, taglines, text links or email creative ("Creative") provided by the Merchant on site(s) across the MyAffiliateMedia Network or in email transmissions (the "Agreement"). The submission of a signed insertion order by Merchant to reddbrix.net is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any terms or conditions appearing on Merchant's purchase order, acknowledgment or in any other writing received from Merchant which are different from or in addition to the terms and conditions contained herein are null and void unless signed by a MyAffiliateMedia officer and shall have no force or effect whatsoever and the terms and conditions of advertising as set forth herein shall govern. Merchant agrees that MyAffiliateMedia may, but is not obligated to, display Creative across the entire MyAffiliateMedia advertising network or on specific site(s) and that daily Campaign activity begins at 12:01 AM Pacific Standard Time. MyAffiliateMedia may, at its option, modify the flight date of a Campaign(s) if the creative or linking URL's: are not delivered on time, there are delays due to 3rd ad-party serving, inventory fluctuation or other issues. 2. Proprietary Relationships. 2.1 MyAffiliateMedia has proprietary relationships with the affiliates that make up the Network. With the exception of reasonably documented, preexisting relationships with direct affiliates or networks or relationships entered into in the ordinary course of Merchants business, Merchant agrees not to solicit, induce, recruit or encourage, directly or indirectly, any affiliate that the Merchant knows, or has reason to know, is a affiliate on the Network for the purpose of offering to such affiliate products or services that compete with those of MyAffiliateMedia, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of MyAffiliateMedia. Merchant understands that in the event of a breach of the forgoing representations by Merchant, MyAffiliateMedia shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and MyAffiliateMedia shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party's decision to enter into this Agreement. 3. Trafficking. 3.1 Trafficking of Campaigns on the Network requires 0-3 business days after Customer has purchased the Campaign and supplied the Creative. All Campaigns placed on the Network are subject to Network capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations, as well as targeting limitations including user geography coverage and accuracy. If the IO indicates Automatic Campaign Extension, Customer hereby grants MyAffiliateMedia the right to extend the end date of the Campaign, in MyAffiliateMedia's discretion, to complete delivery of the contracted Campaign budget. 4. Confidentiality. 4.1 Parties have disclosed or may disclose to each other information relating to each party's business (including, without limitation, data and other information pertaining to affiliate sites, affiliates and vendors that are or have been part of the reddbrix.net Network), all of which to the extent previously, presently or subsequently disclosed to each other is "Proprietary Information." Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its Representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. ("Representatives," when used with respect to either party, means that party's affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Merchant's advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each party's employees who have a legitimate "need to know" and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use. 5. Delivery Measurement Standards. 5.1 MyAffiliateMedia will use commercially reasonable efforts to deliver the click-throughs and/or impressions stated in the Insertion Order in accordance with this Agreement and will use commercially reasonable efforts to deliver the click-throughs and/or impressions starting with the start date and ending with the end date set forth in this Insertion Order, and will make commercially reasonable efforts to spread such clicks and/or impressions evenly throughout the term of the Agreement unless otherwise instructed by Merchant. 5.2 CPC/CPM/CPL: Unless otherwise agreed upon in writing, all invoices created by MyAffiliateMedia for work performed and delivered shall be in accordance with measurement and tracking performed by MyAffiliateMedia. MyAffiliateMedia has adopted the IAB's (Internet Advertising Bureau, http://www.iab.net) methodology for measuring impressions and clicks. Using this methodology, impression and/or click delivery guarantees will be considered "met" when the impressions and/or clicks reported by MyAffiliateMedia meet an Merchant's or representative agency's insertion order. 5.3 CPL Data Warranty and Over delivery: MyAffiliateMediasubmits to the merchant data collected at the point of lead generation as submitted by the user, and does not warrant it's accuracy or reliability. Merchant agrees, that in the event of over delivery, to pay for any units delivered over the specific contract Units Ordered up to 10% of the specific contract Units Ordered. 5.4 CPA: For CPA campaigns, unless otherwise agreed upon, acquisitions shall be determined by agreement between MyAffiliateMedia and the Merchant using various methods including placement of a tracking pixel on the Merchant's confirmation page. MyAffiliateMedia reserves the right to cancel any agreement if MyAffiliateMedia determines any technical incompatibilities. See also Item 10. 6. Payment, Credit and Cancellation Terms. 6.1 Unless otherwise agreed in writing, all invoices created by reddbrix.net for work performed and delivered shall be in accordance with measurement and tracking described in Section 13. All payments will be made in advance unless agreed upon otherwise or credit is approved and MyAffiliateMedia is under no obligation to perform agreed upon services until payment is received. Upon approved credit, terms are Net 30 from date of invoice. 6.2 Either party may cancel this Agreement upon providing five (5) days written notice via email, fax or US Mail. If Merchant terminates campaign early - no program discount will apply, payment in full for work performed and delivered through the end of the campaign will be owed and due and payable in full. 6.3 If Merchant fails to pay overdue invoices for previous campaigns, MyAffiliateMedia reserves the right to immediately terminate any active campaigns. 6.4 In the event Merchant pays with credit card, Merchant expressly agrees not to charge back on credit card account. Merchant agrees to follow dispute resolution agreement as specified in section 7 and 14 herein. 6.5 All payments must be made in U.S. funds. 7. Creative Standards. 7.1 All advertisements are subject to MyAffiliateMedia's approval. MyAffiliateMedia reserves the right to reject, discontinue, or omit any Creative or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Creative. MyAffiliateMedia may reject any Creative that MyAffiliateMedia feels is not in keeping with reasonable standards outlined herein. MyAffiliateMedia is not liable for errors in Creative position and/or placement, or typographic errors of any kind. 8. Campaign Data. 8.1 MyAffiliateMedia is the sole owner of all Inventory, Campaign, and aggregate web user data collected by MyAffiliateMedia. Customer is granted unrestricted rights to all data available online in Customer's account. 9. Campaign Accounting. 9.1 Campaigns purchased on the MyAffiliateMedia Network are served, tracked and reported by MyAffiliateMedia. Unless otherwise stated in the IO, MyAffiliateMedia shall be the governing counting authority, and all prepaid and billed amounts due shall be per MyAffiliateMedia. 10. Indemnification. 10.1 All Creative has been accepted and published upon the representation that the Merchant is authorized to publish the entire contents and subject matter thereof. Merchant agrees to indemnify, defend, and save MyAffiliateMedia harmless from any and all liability for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney's fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or the unauthorized use of any person's name or photograph, arising from MyAffiliateMedia reproduction and publishing of such Creative pursuant to Merchant's submission. 10.2 Merchant understands that MyAffiliateMedia in due diligence cannot monitor all MyAffiliateMedia Host sites for appropriate content and MyAffiliateMedia may not be held responsible for the content of any Host site. If Merchant reasonably determines that the placement of any advertisement by MyAffiliateMedia hereunder harms the goodwill or reputation of Merchant or disparages or brings Merchant into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then MyAffiliateMedia shall use commercially reasonable efforts to remove such advertisement promptly following Merchant's notice thereof to MyAffiliateMedia; provided, however, that if MyAffiliateMedia reasonably believes that removal of an advertisement from a site will have a material impact on MyAffiliateMedia's ability to deliver advertisements in accordance with the Insertion Order, MyAffiliateMedia may condition such compliance on Merchant providing an extension of the flight dates. 10.3 Merchant guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Merchant will indemnify, defend and hold harmless MyAffiliateMedia from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney's fees) which result from any claim of damages brought or sought against MyAffiliateMedia that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on MyAffiliateMedia giving prompt written notice of any such claim. MyAffiliateMedia will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph 7 shall survive the termination of this Agreement. 11. Damages. 11.1 In no event shall either party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising thereunder or from the provision of services. 12. Warranty Disclaimer. 12.1 MyAffiliateMedia and Affiliates do not make and hereby expressly disclaim all warranties, express or implied, with respect to any matter whatsoever, including, without limitation, the performance of any software programs incidental to services rendered by MyAffiliateMedia, services provided thereunder, or any output or results thereof. MyAffiliateMedia and Affiliates specifically disclaim any implied warranty of merchantability or fitness for a particular purpose. 13. Limitation of Liabilities. 13.1 MYAFFILIATEMEDIA SHALL NOT HAVE ANY LIABILITY TO THE MERCHANT FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT MYAFFILIATEMEDIA'S LIABILITY CAN NEVER EXCEED THE CHARGE FOR THE ADVERTISEMENT IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MYAFFILIATEMEDIA MAKES NO OTHER WARRANTIES TO MERCHANT AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT MYAFFILIATEMEDIA DOES NOT WARRANT THAT THE ADVERTISEMENTS ARE FREE OF CLAIMS OF PATENT, TRADEMARK, TRADE SECRET, OR COPYRIGHT INFRINGEMENT BY A THIRD PARTY. 14. Entire Agreement. 14.1 This Agreement, together with the IOs incorporated by reference, embodies our entire agreement, supersedes all prior oral and written agreements, and may not be amended or modified except by an agreement signed by both parties. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event that any of the provisions included herein are held to be unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any notice or report required or permitted by this Agreement shall be made by personal delivery or fax to then operating fax number or business address. 14.2 Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach. 15. Assignment. 15.1 Customer may not assign this agreement, in whole or in part, without written consent from MyAffiliateMedia. Any reasonable request to assign this agreement in the event of a significant change in ownership of Customer, or such similar event, will be granted Any attempt to assign this Agreement without such consent will be null and void. 16. Choice of Law and Venue. 16.1 It is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by Utah law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of the State of Utah as such courts shall serve as the exclusive venue for all dispute resolution. The prevailing party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys' fees, together with its costs and expenses incurred resolving the dispute as part of the judgment. 17. Ability to Enter Into Agreement. 17.1 Customer warrants that Customer (or Authorized Representative of Customer) is at least 18 years of age, has the appropriate authority to enter into this agreement, and that there is no legal reason that Customer cannot enter into a binding contract. 18. Force Majeure. 18.1 MyAffiliateMedia is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasigovernmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond MyAffiliateMedia's control affecting production or delivery in any manner. 19. Press Releases. 19.1 Merchant is willing to collaborate with press releases and/or be mentioned as a new client. If Merchant is unwilling to participate I activity, please initial here ________ (date)
20.1 Clauses 2, 10, 14 and 18 shall survive in perpetuity after the termination of this agreement by either party; Clause 16 shall survive for six (6) months from such termination.
MyAffiliateMedia If to Affiliate, to the executive and e-mail address set forth
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