PrecisionClick.com Advertiser Agreement

Advertiser Agreement for PrecisionClick.com

PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE PLACING AN ADVERTISEMENT. YOUR PLACEMENT OF AN ADVERTISEMENT ORDER INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT PLACE AN ORDER.

1. Preamble; Parties

This Advertiser Agreement ("Advertiser Agreement") is entered into by and between PrecisionClick.com a division of 2KDirect LLC (the "Company") and the client/advertiser (the "Advertiser") referenced on the accompanying insertion order ("Insertion Order" or "IO"). The following terms and conditions are deemed to be incorporated by reference into any Insertion Order submitted by Advertiser. By submitting advertising for inclusion on any PrecisionClick™ Network site or service, Advertiser agrees to be legally bound by the terms of this Agreement. This Advertiser Agreement, together with the Insertion Order, shall constitute the entire agreement ("Agreement") between the parties. No conditions other than those set forth herein shall be binding on Company unless specifically agreed to in writing by Company. Company will not be bound by conditions printed or appearing on order blanks or copy instructions submitted by or on behalf of the Advertiser. Advertiser and its agency (if applicable) are jointly and severally responsible under this Agreement. This Agreement supersedes all terms and conditions on Company's rate cards, and any previous agreements between Company and Advertiser relating to the subject matter set forth herein. Subject to Company's right to terminate or cancel this Agreement, Company's only obligation to serve advertisements hereunder shall be to serve advertisements of the Advertiser described herein, and in no event shall Company be obligated to serve advertisements for any other advertiser. The terms of the Agreement will be considered accepted by Company once Company commences publication of the advertisements requested in the Insertion Order. In case of any express inconsistency between the rights and obligations of Advertiser in this Agreement and the Insertion Order, the terms of the Insertion Order shall take precedence provided that under no circumstances shall Company's liability or obligations exceed those which are expressly set out in this Agreement.

2. Advertiser Representations and Warranties

Advertiser represents, warrants, and covenants that:

(a) Advertiser will provide all creative and substantive materials (“Creative”) required for marketing their campaign, including but not limited to: banners, language/text, links, key words, and any other creative content as needed, including but not limited to the use of alternative text-based creative;

(b) Advertiser is the owner or is licensed to use the entire contents and subject matter contained in its advertisements and collateral information, including, without limitation, (i) the names and/or pictures of persons; (ii) any copyrighted material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services; and (iii) any testimonials or endorsements contained in any advertisement submitted to Company;

(c) Advertiser is solely responsible for the substantive content of each advertisement, and to the extent that Company provides assistance in the development of a campaign, such assistance shall be limited to creative assistance only. Advertiser represents and warrants that the Company is not a party to, and has no liability for, the content and claims in Advertiser's Creative.

(d) Advertiser is not in violation of any obligation, contract, agreement, or laws, by entering into this Agreement, by performing its obligations hereunder, or by authorizing and permitting Company to perform its services hereunder. Advertiser has the unrestricted power and authority to enter into and perform its obligations under this Agreement;

(e) the use, reproduction, distribution, transmission or display of any Creative and any materials to which users can link, or any products or services made available to users through the Creative does not and will not (i) violate any law, statute, ordinance, treaty, order, decree, regulation (including but not limited to the CAN-SPAM Act of 2003, false advertising or unfair competition under the law of any jurisdiction including without limitation regulations of the Federal Trade Commission (“FTC”)), give rise to criminal or civil liability or infringe any copyright, patent, trademark, or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party (collectively “Unlawful Conduct”); (ii) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct (collectively “Offensive Conduct”); or (iii) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct;

(f) Advertiser has a reasonable basis for all claims made within the Creative, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns. Advertiser warrants that all product information it provides the Company and/or posts on its website, is truthful, accurate, and complete, and is not misleading in any way;

(g) the landing page for each Campaign (i.e., the Advertiser’s website page where a consumer is directed when the consumer clicks on the Creative, fills in a registration form, or takes a similar action) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, (i) adequate notice, disclosure, and choices to consumers regarding Advertiser’s use, collection, disclosure, and security of their personal information; and (ii) complete compliance with all FTC guidelines and any other applicable laws, rules, and regulations with respect to online privacy;

(h) no Campaign is targeted to children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess, or participate in; and

(i) all consumer data collected pursuant to this Advertiser Agreement shall only be used for legal purposes;

(j) prior to loading any computer program onto an individual’s computer, including without limitation programs commonly referred to as adware or spyware but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy), Advertiser shall provide notice to and shall obtain the express consent of such individual;

(k) Advertiser agrees to indemnify and hold Company, its third party publishers, and their respective affiliates, employees, officers, agents, directors, and representatives ("Company Indemnified Parties"), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs, and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs, and witness fees) (collectively “Losses”) arising out of or related to: (i) Advertiser's breach of any representations, warranties, or covenants made in this Agreement, or (ii) any allegations of or proceedings for libel, defamation, violation of right of privacy or publicity, copyright 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 the use of Company's Network. The indemnity obligations of this paragraph are contingent on Company Indemnified Parties giving prompt written notice of any such claim. Company Indemnified Parties will have sole control over the litigation or settlement of such claim. Advertiser further agrees that any compromise or settlement of such disputes will contain a complete, express, and unconditional release of Company. The provisions of this Section 2 shall survive the termination or expiration of this Agreement.

3. Advertiser’s Campaign

(a) Advertiser agrees to confirm the correct function of all Creative supplied to Company within twenty-four (24) hours of the Campaign start. If no confirmation is received within this time frame, Company will assume that Creative is functioning properly and Advertiser agrees to pay for all impressions, clicks or leads derived from the Creative as measured by Company. All problems related to Creative should be immediately brought to the attention of the Company account executive for Advertiser. Company is not liable for errors in position and/or placement of the Creative, or typographic errors of any kind. Advertiser agrees and understands that if Company is requested to retrieve any Creative for and on behalf of Advertiser, that Company performs this service solely as a courtesy to Advertiser. Advertiser shall remain fully responsible for all Campaigns delivered for or on behalf of Advertiser in such instances, even in the event of any errors by Company, including retrieving incorrect Creative.

(b) Advertiser agrees to allow Company to make changes or alterations to the Creative for the purpose and intent of matching it to the medium of delivery. Company may, at its option, modify the flight date of a Campaign if the Creative or linking URL’s are not delivered on time or there are delays due to third party ad-serving, inventory fluctuation, or other issues beyond its control.

(c) Advertiser hereby grants to Company and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations hereunder.

(d) Advertiser understands that Company in due diligence cannot monitor all host sites for appropriate content. If Advertiser reasonably determines that the placement of any Campaign by Company harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, then Company shall use commercially reasonable efforts to remove such Campaign promptly following Advertiser's notice thereof to Company; provided, however, that if Company reasonably believes that removal of a Campaign from a website will have a material impact on Company’s ability to perform in accordance with the applicable Insertion Order, Company may condition such compliance on Advertiser providing an extension of the flight dates or other accommodation.

(e) Company reserves the right to pause any Campaign that does not meet or satisfy Company’s performance expectations, operational requirements, or for any other reason. During the pause period, Advertiser and Company will work together to address Company’s concerns, including but not limited to testing new Creative and/or changing rates. If during or following the pause period Company deems, at its sole discretion, that the Campaign will not meet minimum performance expectations or operational requirements, Company reserves the right to cancel Advertiser’s Campaign. For Advertisers who pre-paid, Company will credit Advertiser the unused portion of pre-payment (i.e. the total pre-payment less the cost of what has been delivered).

(f) Any advertising and marketing rights not specifically granted to Advertiser herein are specifically reserved by Company. Without limiting the generality of the foregoing, Company expressly reserves the right to: (i) refuse any advertising request, cancel any Campaign, or change any Campaign that does not completely conform to every material detail, instruction, method, and guideline set forth in the Insertion Order; (ii) refuse any Creative that does not arrive forty-eight (48) hours prior to the start date; (iii) refuse or cancel the use of any Campaign that it deems, in its reasonable discretion, inappropriate for any reason or no reason; (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason including those that it believes, in its reasonable discretion, are an invasion of privacy, are degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion are an infringement on a trademark, trade name, or copyright belonging to others; (v) refuse any advertising request or cancel any Campaign that is or can be hosted by any directly or indirectly competitive network; (vi) refuse or cancel any Campaign which redirects traffic to a website other than the site specifically identified in the Insertion Order; or (viii) refuse or cancel any Campaign which on its face asks consumers to take advantage of other or additional offers not specifically identified in the Insertion Order. All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations. Any Campaign rejected by Company may be replaced by Advertiser; provided that any such replacement material must be in writing and accompanied by appropriate material identifying the Campaign that it is to replace. Company shall notify Advertiser of the rejection or cancellation of any Campaign and shall have no liability to Advertiser for any such rejection or cancellation. Further, Company shall have no liability to Advertiser for failure to place any Campaign on its or any third-party publisher’s network.

4. Display/Web-Based Advertising

(a) Advertiser acknowledges that, except as otherwise agreed in writing, Company will host the Campaign and provide the tracking solution. Company’s tracking count shall be used for all purposes under this Agreement. Company shall have the right to place pixels on Advertiser’s website as may be required to measure webpage activity, track and/or measure consumer response to the Campaign and provide estimated live statistics for Company’s affiliates. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Company before any advertising or ad-serving will be provided by Company and any data collected shall be jointly owned by the parties. If Advertiser removes or manipulates the pixels at any time during the Campaign without express written permission from Company, Company may suspend performance and, if applicable, Advertiser agrees to pay Company for the days during which the pixels were absent or manipulated based on the average daily conversion measurements (using daily click counts and/or conversions for the seven (7) days prior to the pixels being removed or manipulated) plus fifteen percent (15%) (“Default CPA Rate”).

(b) In the event that there is a shortfall in impressions or click-throughs as of the stop date, Company may, through comparable websites, provide as Advertiser’s sole remedy, “make good” impressions until the number of impressions or click-throughs stated in the Insertion Order is achieved.

(c) Where Advertiser’s tracking mechanism is used, Advertiser shall provide a login where Company can retrieve daily and month’s end summary reports reflecting the exact number of units delivered. Company, in its reasonable discretion and in consultation with Advertiser, will determine the form of said reports. All delivery amounts and all agreements are subject to 10% over/under delivery and Advertiser shall pay for any over-delivery within the above tolerance.

(d) Advertiser may terminate Display/Web-Based Advertising campaigns upon twenty four (24) business hours advanced written notice. For purposes of this subsection (d), notice may be sent by e-mail and shall be effective upon receipt provided that a copy of such notice is also sent as set forth in Section 14.

5. Lead Generation Campaigns

(a) For all lead generation Campaigns, it is the Advertiser’s responsibility to confirm that the data fields delivered match the data fields enumerated on the applicable Insertion Order or similar document. Advertiser must report any discrepancies related to such lead generation Campaigns to Company within five (5) days of the occurrence. Company is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to Company based upon any discrepancy not reported within this time frame. All discrepancies must be reported to Company’s account representative in writing. If Advertiser desires to seek credit for any incomplete data provided by Company to Advertiser for a Campaign, Company agrees to review the disputed data. Company will make a reasonable effort to investigate and negotiate reconciliation for confirmed incomplete data. Advertiser agrees to provide Company with proof of server bounce response for any disputed leads. In no case will Company credit more than ten percent (10%) of total leads provided to Advertiser for a Campaign. In addition, in the event Advertiser’s site is down more than 20 minutes on any given day without prior notice to Company (“Down Date”), Advertiser shall pay the Default CPA Rate for all Down Dates.

(b) For campaigns where confirmation from the consumer may be received after the lead registration date, leads generated during the Campaign will continue to be sent to Advertiser for up to ten (10) days following the stop date. These leads, generated during the term of the Campaign, although sent to Advertiser after the Campaign has ended, are included in the Campaign and will be billed accordingly.

(c) In the event that Advertiser uses any portion of the data/leads that it disputed or refused in any marketing program, Advertiser also will pay the fee for such leads. Company will have the right to “seed” the data/leads provided to Advertiser with fictitious test names (which will not complete the verification process) in order to assure compliance with this provision.

(d) Advertiser acknowledges that the data purchased is for persons who have indicated an interest in Advertiser while visiting a Company or Company affiliated website and that Advertiser may continue to market its products and services to such person, until the person unsubscribes or otherwise indicates a desire to no longer receive such communication. Advertiser further acknowledges that the persons who have elected to co-register or sign-up with Advertiser also may have elected to register with Company and/or its affiliated publishers and may have elected to co-register and/or sign up with additional advertisers. Therefore, Advertiser acknowledges that Company and its affiliated sites retain all rights to market and communicate to such persons, consistent with their policies and procedures.

(e) Advertiser may terminate Lead Generation Campaigns upon twenty four (24) business hours advanced written notice. For purposes of this subsection (e), notice may be sent by e-mail and shall be effective upon receipt provided that a copy of such notice is also sent as set forth in Section 14.

6. Billing

(a) All payments will be made in advance unless credit is approved. If Advertiser is required to pay in advance, Company is under no obligation to perform agreed upon services until payment is received. Upon approved credit, terms are Net 30 from date of invoice (which may be sent by e-mail and/or postal mail). All payments must be in U.S. funds. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts and will instead follow the dispute resolution procedures as specified herein. In the event that Advertiser is more than seven (7) days past due on its account, Company may charge the total amount then due and owing to Advertiser’s credit card account.

(b) In the event of a dispute between Advertiser and Company regarding amounts due, Advertiser agrees that Company’s tracking count shall be applied. Advertiser understands and agrees that in no event, and under no circumstance, will data provided by any Company representative constitute final billing numbers. Only invoices sent directly to Advertiser are to be construed as representative of billable amounts. In the event that Company does not receive a written notification of a disputed bill, with rationale and support therefore specifically set forth therein, within fifteen (15) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed. Advertiser specifically agrees that this provision is reasonable and that Company will rely upon this provision in making payments to participants in its Company network.

(c) Any late payments will accrue interest equal to one and a half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Advertiser will be charged $50 for payments by checks that are returned due to insufficient funds. Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. Advertiser agrees that in the event a collection suit is commenced, in any proceeding for default judgment Company may, in lieu of seeking statutory attorneys’ fees, elect to recover one-third of the outstanding principal plus penalties as stipulated attorneys' fees. Such an election is in Company’s sole discretion.

7. Limitations of Warranties and Liability

(a) THE ADVERTISING SERVICE PROVIDED BY COMPANY, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. 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), GUARANTEES, 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.

(b) COMPANY SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY. COMPANY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT FOR THE ADVERTISING CAMPAIGN IN QUESTION.

(c) The Provisions of this Section 7 are an essential element of the benefit of the bargain reflected in this Advertiser Agreement.

8. Reservation of Rights

In order to maintain the integrity and continuity of Campaign services, Company reserves the right to refuse service to any new or existing Advertiser at any time, in its sole discretion, with or without cause. Company reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Creative for any reason at any time, with or without notice to the Advertiser and regardless of whether such Creative was previously accepted or published. Company will not knowingly accept Creative from Advertisers that produce or provide “adult” or pornographic materials, or any other matter which is known or recklessly suspected to offend prevailing community standards anywhere received or displayed. Advertiser acknowledges and agrees that any suspect Creative will be presented with reasonable access restrictions, including without limitation age or consent disclaimers, certifications, warning or restrictions. Creative (including either advertising materials OR linked URLs) shall not include nudity, partial nudity, or any other material that may be indecent or inappropriate for purposes of being read or viewed in conjunction or linked to Inventory or Sites, including without limitation scatological or sexual references, other adult language which may not be appropriate for minors, or depictions or references to gore, violence, cruelty to animals, or other offensive or unnatural acts. Company does not accept Advertisers that engage in, promote, facilitate, or suborn the deliberate, reckless or negligent violation of any Laws, and will not condone or permit any such activity that comes to its knowledge. Company may in its sole discretion refuse, restrict or terminate the Campaign, transmission, delivery or other use of any Creative that it deems inappropriate, or requires special handling, or limit any access to the Network connected with same. This Agreement may be terminated by Company immediately with or without notice if Advertiser fails to disclose, conceals, or misrepresents either itself or the nature of its Creative, Network activities, or Campaign orders in any way.

9. Campaign Commencement

All Network Campaigns are subject to Network capacity limitations, which may include without limitation software, hardware, Internet traffic and service provider, bandwidth and other performance metrics, Inventory availability, payment terms, credit history, Creative performance, and market pricing limitations. If the IO indicates Automatic Campaign Extension, Advertiser hereby grants Company the right to extend the end date of the Campaign, in Company's discretion, to complete delivery of the Advertiser’s contracted Campaign budget.

10. Termination

Advertiser may terminate this Advertiser Agreement pursuant to the terms of Section 4(d) and Section 5(e). Termination of this Advertiser Agreement shall not relieve Advertiser from its obligation to pay the greater of (i) any fees that have accrued prior to the date of termination; (ii) any Minimum Contract Price specified in the Insertion Order(s) less any amount previously billed to and paid by Advertiser; or (iii) its obligations under any Insertion Orders for which performance has commenced which have not been terminated pursuant to the terms thereof. Such amount shall be payable within fifteen (15) days of contract termination. The parties agree that any applicable Minimum Contract Price is fair and reasonable compensation for Company’s costs associated with implementing Advertiser’s Campaign. Company reserves the right to suspend performance in the event that it feels, in good faith, insecure about Advertiser’s ability or intention to perform under this Advertiser Agreement. The forgoing notwithstanding, Company reserves the right to suspend and/or terminate this Advertiser Agreement immediately in the event that (i) Advertiser violates the terms set forth in Sections 2, 6, or 11; (ii) Advertiser and/or its affiliated entities is either in material breach of any obligation under a contact with or in litigation with any 2KDirect LLC company; or (iii) for any or no reason whatsoever.

11. Proprietary Matters

(a) Each party agrees that, for a period of one (1) year from the receipt of any Confidential Information from the other party (“Disclosing Party”) hereunder, such party (“Receiving Party”) shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of information received which is marked or identified (orally or in writing) as confidential, or any information that should, under the circumstances surrounding disclosure, reasonably be treated as confidential (“Confidential Information”). The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement. The obligations of each Receiving Party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the Receiving Party. Confidential Information does not include information that the Receiving Party can document (a) is or becomes (through no improper action or inaction of the Receiving 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 it 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). Each party will be responsible for a breach of this Advertiser Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.

(b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Advertiser Agreement and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such directors’, employees’ and advisors’ compliance with, or are otherwise obligated to honor, the terms of this Advertiser Agreement or as required by law (provided prompt notice of such required disclosure is provided to the disclosing party prior to disclosure where permissible).

(c) Company has proprietary relationships with the publishers that make up its network. With the exception of reasonably documented, preexisting relationships with direct publishers or networks, or relationships entered into in the ordinary course of Advertiser’s business, during the term of this Advertiser Agreement and for a period of six (6) months thereafter, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that Advertiser knows, or has reason to know, is a publisher on Company’s network for the purpose of obtaining the placement or hosting of advertising in any form without the express, written consent of Company. In the event that Advertiser violates this provision, it shall pay Company an additional commission equal to what the Company would otherwise have earned had Advertiser not violated this subsection (c).

(d) The parties agree and understand that a material breach of this Section 11 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond and/or shall be entitled to a decree of specific performance of the terms of this Advertiser Agreement against the party who has breached or threatened to breach the agreement. The foregoing remedy is a material, bargained for basis of this Advertiser Agreement and has been taken into account in each party’s decision to enter into this Advertiser Agreement.

12. Force Majeure

Neither party shall be liable for, or considered in breach of or default under this Advertiser Agreement on account of, any delay or failure to perform as required (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 the Company Network to display or place a Campaign); provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition(s) to the other party.

13. Dispute Resolution

This Advertiser Agreement shall be governed by the laws of the State of California without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in San Luis Obispo County, California for such purpose, waive the personal service of any process upon them and agree that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in the most recent Insertion Order. Any claim under this Advertiser Agreement, other than for indemnity and defense as provided herein, must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred.

14. Notice

All notices, requests, demands, and other communications 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 addresses (or at such other address for a party 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: P.O. Box 13005, San Luis Obispo, CA 93406. If to Advertiser, to the executive and address set forth on the most recent Insertion Order.

15. No Assignment or Resale of Advertisement Space

Advertiser may not resell, assign, or transfer any of its rights hereunder without the express prior written consent of Company. Any attempt by Advertiser to resell, assign, or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to Company. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party's stock, assets, or business.

16. Independent Contractors

Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party’s prior written consent.

17. Marketing Materials & Communications

Advertiser agrees that Company may identify it as a Company Advertiser in client lists and other marketing materials. Any other uses of Advertiser’s name and/or logo shall require Advertiser’s prior written consent. Advertiser consents to receive e-mail communications with respect to goods, services and/or promotions offered by Company.

18. Entire Agreement, Modification

The Insertion Order, Advertiser Agreement, and exhibits or addenda thereto constitutes a valid and binding agreement between the parties, and has been duly executed by an authorized representative of each party. The Insertion Order, Advertiser Agreement, and any exhibits or addenda thereto is intended to be the parties’ complete, integrated expression of the terms of their agreement and any prior agreements or understandings with respect to such subject matters are superseded hereby and fully merged herein, and may only be modified in writing by authorized representatives of the parties. The terms and conditions hereof shall prevail exclusively over any written instrument or Insertion Order submitted by Advertiser even if signed by Company unless this Advertiser Agreement is expressly amended by an addendum attached hereto that references this Advertiser Agreement and the specific provisions to be modified and Company hereby disclaims any terms therein. No interlineations to this Advertiser Agreement shall be binding unless signed by both parties.

19. Survival & Severability

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Advertiser Agreement shall survive and remain in effect after such happening, including without limitation, Sections 2, 6, 7, 10, 11, 13 and 18. Each party acknowledges that the provisions of this Advertiser 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 this Advertiser Agreement conflicts with the law under which the Advertiser 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 Advertiser 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 Advertiser Agreement will remain in full force and effect.

20. Remedies, Waiver

Except as otherwise specified, the rights and remedies granted to a party under this Advertiser 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. 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.

21. Counterparts

This Advertiser Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile copy of this Advertiser Agreement shall be deemed to be an original.

22. Campaign Data

Company is the sole owner of all Display, Campaign, and/or aggregate Internet user data collected by Company or the Network. Advertiser shall be granted unrestricted rights to all data available online in Advertiser's account for as long as Advertiser is in full and faithful performance of this Agreement.

23. Disclaimer of Warranties

With the exception of their express representations and warranties herein, Company and Publishers do not make and hereby expressly disclaim all other warranties, express or implied, with respect to any matter whatsoever, including without limitation the performance of any equipment or software directly or indirectly related or incidental to services rendered by Company hereunder or any related Network activity, Campaign or IO, or any output or results thereof. Company and Publishers hereby specifically disclaim any implied warranty of merchantability or fitness for any particular purpose.

24. Miscellaneous

This Agreement, including all attachments which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Provisions shall survive the expiration or early termination of this Agreement as may be necessary to accomplish the purposes of same, including without limitation sections 2, 9, 11, and 14 herein. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither Company nor Advertiser shall hold itself out as the agent of the other; provided that Company may act as Advertiser’s agent with regard to the placement or performance of Campaign services, or any other purpose reasonably necessary for the performance of the explicit provisions of this Agreement. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond that party’s reasonable control, including without limitation acts of God, earthquake, flood, fire, weather events, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or other unusual or catastrophic casualties. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties. Any alleged waiver of any term or condition herein shall only be effective if explicitly stated in a writing executed by the party to be charged with same. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.

25. Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its principles of choice or conflicts of law.

Advertiser Signature: _________________________________________ Date: _____________________