PrecisionClick.com Publisher Agreement

Publisher Agreement for PrecisionClick.com

PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE PARTICIPATING IN THE NETWORK. BY PARTICIPATING IN THE NETWORK, YOU ARE AGREEING TO BE BOUND BY THESE TERMS AND CONDITIONS IN THEIR ENTIRETY. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT PARTICIPATE IN THE NETWORK.

1. Preamble; Parties

This Publisher Agreement ("Publisher Agreement") is entered into by and between PrecisionClick.com a division of 2KDirect LLC ("Company") and the website owner executing same ("Publisher" or "You") to establish the terms and conditions for the display of advertising materials ("Creative") from advertising Members ("Members" or "Advertisers"). This includes the serving, tracking, and reporting of each advertising campaign (collectively, "Campaign") carried or syndicated on websites participating in the PrecisionClick™ Online Advertising Network ("Network"). In order for an applicant's Website(s) to be considered for participation in the Network as a publisher, and as a condition of continued participation, applicants must agree to the following terms and conditions. By participating in the Network, you are agreeing to be bound by these terms and conditions in their entirety. The term "Publisher" shall refer to any individual or entity who accepts the terms and conditions of this Agreement by submitting the required information for approval ("Membership") in the Network and checking the "I Agree" checkbox. Upon approval, Company will provide to the Publisher advertising HTML codes ("Ad Codes") to allow the Publisher to serve advertisements on its approved website(s). In the event an applicant, after joining the Network as a Publisher, breaches or otherwise fails to comply with any provision of these terms and conditions Company may terminate the participation of such Publisher.

2. Publisher Representations and Warranties

Both parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the campaigns, and that Company will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher. Therefore, Publisher hereby specifically represents, warrants, and covenants that:

(a) Publisher is the owner or is licensed to use the entire contents and subject matter contained in all of its Websites, including, without limitation, (1) the names and/or pictures of persons; (2) any copyrighted material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services; and (3) any testimonials or endorsements;

(b) Publisher is solely responsible for any legal liability arising out of or relating to (1) Publisher's Website(s), (2) any material to which Users can link through Publisher's Website(s), and/or (3) any consumer and/or governmental/regulatory complaint arising out of any campaign conducted by Publisher, 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.

(c) Publisher 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. Publisher has the unrestricted power and authority to enter into and perform its obligations under this Agreement;

(d) Publisher shall not use, reproduce, distribute, upload, post, e-mail, transmit, display, or otherwise make available any content, material, data, work, designation, trade or service mark, trade name, link, advertising or services that actually or potentially (1) violates 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 infringes or misappropriates any proprietary, intellectual property, copyright, patent, trademark, or service mark, trade secret rights, contract or tort rights of any person, or any other personal, moral, contract, property or privacy right of any third party (collectively "Unlawful Conduct"); (2) to a reasonable person, may be abusive, obscene, pornographic, defamatory, invasive of privacy, harassing, bigoted, hate-oriented, grossly offensive, vulgar, threatening, malicious, or otherwise objectionable in accordance with prevailing community standards, or contains or promotes viruses, cracking, hacking or warez content or conduct (collectively "Offensive Conduct"); or (3) encourages conduct that would constitute Unlawful Conduct or Offensive Conduct; or (4) is in any way derogatory about Company, any Member or Publisher participating in the Network, or any other party. Publisher grants Company and its client Advertiser the right and nonexclusive license to transmit the Creative to the Websites as Company may decide in the exercise of its reasonable business discretion, without any restriction of any kind.

(e) Publisher has a reasonable basis for all claims made within the content of its Websites, possesses appropriate documentation to substantiate such claims, and Publisher specifically warrants that all information it provides the Company and/or posts on its Websites, are truthful, accurate, and complete, and are not misleading in any way;

(f) Publisher shall maintain a privacy policy on its Website(s) which shall, at a minimum (1) be available as a clear and conspicuous link from main pages of its Website(s) and on all web pages where any personally identifiable information is collected, (2) provide adequate notice, disclosure, and choices to consumers regarding Publisher's use, collection, disclosure, and security of their personal information; and (3) be in complete compliance with all FTC guidelines and any other applicable Laws, rules, and regulations with respect to online privacy;

(g) Publisher shall NOT: (1) Place Creatives or Ads in e-mails; (2) Intentionally place Creatives on blank web pages or on web pages with no content; (3) Stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); (4) Place Creatives on non-approved Websites or web pages, or in such a fashion that may be deceptive to the User; (5) Incentivize offers or create the appearance to incentivize offers; (6) Place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (7) Place misleading statements near the Ad (i.e., "You will win $5,000."); (8) Redirect traffic to a Website other than that listed by the particular Advertiser; (9) Ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (10) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of Company, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (11) Use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (12) Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service; (13) Violate guidelines of any search engines being utilized; (14) Engage in search engine spam, doorway pages, cloaking, etc.; (15) Bid on any trademarked name or terms in any PPC/"keyword"/"adword"/campaign; (16) Conduct search Ads falsely suggesting a link between Company and a third-party or otherwise infringing on a third-party's intellectual property rights; (17) Engage in any advertising via facsimile or telemarketing; (18) Engage in any misleading or deceptive conduct.

(h) Publisher shall not place any Creative or any software code that displays Creative (collectively, the "Company Code") on Web Sites that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials; (2) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity.; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) personal web pages, non-English language pages, or free hosted pages (i.e. Geocities, Xoom, Tripod, Talk City, etc.); (5) Websites under construction, hosted by a free service, personal home pages, or do not own the domain they are under; (6) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, active x downloads, no content (link site), all affiliate links, or incentivized traffic; (7) Promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, "Spyware" shall mean computer programs or tools that (i) alter a computer User's browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer User's reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User's computer; (iv) send e-mail through a User's computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable Law.

(i) None of Publisher's Websites offers products or services that are illegal for minors to buy, possess, or participate in; and if Publisher is an individual, Publisher must be at least 18 years of age.

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

(k) 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 Publisher's privacy policy), Publisher shall provide notice to and shall obtain the express consent of such individual;

(l) Publisher acknowledges and agrees (1) that participation and/or membership in the Network is subject to Company's express prior approval, (2) that in order to maintain the integrity and continuity of Network services, Company reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion, (3) that approval of membership in the Network is limited only to the domains and/or specific root URLs for which Publisher has applied for approval by Company (the "Websites", individually, a "Website"), (4) that Company reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time with or without notice to the Publisher and regardless of whether such Publisher or Website was previously accepted, (5) that without limiting any of the foregoing, Company reserves the right to require a potential or existing Publisher to submit detailed descriptions or explanations of the Publisher's Website(s) or application(s) functionality and back-end technology through a questionnaire or survey, (6) that refusal to participate in such questionnaire or survey, or answers deemed unsatisfactory, shall constitute grounds for non-acceptance or termination from the Network, (7) that this Agreement is voidable by Company immediately if Publisher fails to disclose, conceals, or misrepresents itself in any way, (8) that unless otherwise advised due to technological issues by Company, any person, Publisher, or affiliated group may have only one account, however, each account may include multiple Websites/domains, (9) that in the event that a Publisher signs up more than one Website/domain, and it has been approved by Company, each and every additional Website/domain is obligated and bound by these same terms and conditions, (10) that in any event, Company reserves the right to reject or approve any additional Website, and is under no obligation to accept any Website, even if the additional Website is the property of an already approved Publisher, and (11) that all activity for a given account will be consolidated into one report.

(m) Publisher hereby agrees to indemnify, defend, and hold harmless Company and its information providers, officers, directors, affiliates, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, and third party service providers and their employees ("Company Indemnified Parties") from and against all allegations, claims, actions, liabilities, obligations, losses, damages, 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: (1) Publisher's breach of any representations, warranties, or covenants made in this Agreement, or (2) 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 Publisher's Website; (3) any defective, contaminated, or malicious file or software, including without limitation viruses, worms, or Trojan horses, intentionally or negligently disseminated by Publisher or originating from Publisher's Website or Inventory, (4) any breach by Company of any duty, representation, or warranty to provide Ad(s) for placement on Publisher's Website(s) due to any breach by Publisher of this Agreement; (5) gross negligence or willful misconduct by Publisher. Company Indemnified Parties will have sole control over the litigation or settlement of such claim. Publisher 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. Discretionary Termination

Company reserves the right to terminate any Publisher from the Network at any time, with or without cause, including, without limitation, the breach of any part of this Agreement. Notice of termination may be provided in person or via e-mail, facsimile, or mail (either regular mail or overnight courier) and will be effective immediately upon receipt. Upon termination, Publisher agrees to immediately remove from the Websites any and all software code that displays Creative ("Company Code") supplied to Publisher for serving Network Creative, whether such software code originates from Company or otherwise. Publisher will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination. If a Publisher has not reached the Minimum Payment Threshold the Publisher will be charged an administrative fee representing Company's cost of establishing and maintaining the Publisher's account; such fee to be any balance remaining in the Publisher's account. Upon termination all ties to advertising referral or other transactions will be permanently severed and Publisher will not receive nor be entitled to receive future referral commissions hereunder.

4. Quality Control

Company does not accept Websites that produce or provide adult content. Company does not accept or condone Websites that engage in, promote or facilitate violation of Laws, or any other illegal, legally or ethically questionable activities such as pirating, hacking, or hijacking of entertainment content or computer software or systems. Company will not accept or support Websites that are: under construction, hosted by a free service, personal home pages, or do not own the domain name or URL they are linked to or maintained under. Company Code shall not be used on Websites that contain forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation. This Agreement may be immediately terminated by Company if Publisher fails to disclose, conceals or misrepresents itself, its Websites, activities or content in any way. In addition, Company may in its sole discretion refuse to serve any Website that it deems inappropriate. To insure compliance with this Agreement, any Publishers that change their Websites or content after Network approval MUST notify Company of the changes in writing immediately.

5. Default Ads

Publisher acknowledges and agrees that Company may not be able to fill 100% of advertising requests sent to its servers with paying ads. Company provides free Publisher-defined default redirects expressly for this reason. Publisher-defined default ads must adhere to the content guidelines outlined for all Company Member or Network Advertisers, including without limitation no adult, defamatory, or offensive content, etc., as may be further defined herein. Publishers found using default ads that violate the content restrictions of this Agreement will be removed from the Network. If Publisher chooses not to specify a default redirect, Company will display so-called 'house' and/or 'AdCouncil' ads on Publisher's Website(s) when paid advertising is unavailable. Company may also display so-called 'house' and/or 'AdCouncil' ads on Publisher's Website(s) when technical difficulties require it. So-called 'house' and 'AdCouncil' ads are not paid advertising. Under no circumstances does Company guarantee to provide any percent fill of paid advertising to a Website.

6. Publisher's Placement of Ads

Publisher shall be solely responsible for (i) managing its advertising content exclusions in the Company interface, and (ii) placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement. Ads may only be placed on Approved Websites. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website. Banner, Leaderboard, Skyscraper, and Wide Skyscraper Ads must be placed within 600 pixels of the top of the Webpage (above the page scroll/fold). Company pop-under or In-Vue windows cannot be launched from Websites that launch more than a total of two pop windows, including the Company pop-under or In-Vue. Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same page. Text Ads are limited to a total of seven text links per page in any combination of stand alone and/or multiple links. Publisher will not place ads in e-mails, on blank pages, on pages with no content, on top of one another, on non-approved Websites, or in such a fashion that may be deceptive to the visitor. Website Ads (Banners, Leaderboards, Skyscrapers, Wide Skyscrapers, Rectangles, Medium Rectangles, Half Pages, Text Ads) may not be placed on forums, chat rooms, and other entities for which Publisher does not have complete control and/or ownership. Publisher agrees to use the Company Code provided by Company for displaying an Ad not more than ONCE per page view. PLACEMENT OF ADS IN E-MAILS IS PROHIBITED.

7. Network Quality

Company will not tolerate or accept any activities it deems harmful or potentially damaging to its customers and/or clients including but not limited to the activities stated in this Agreement. Company employs individuals for the express purpose of monitoring Publisher Websites within our network to ensure that our customers and clients are receiving the highest quality campaigns. Company has also developed fraud detection mechanisms and regularly audits Publisher traffic. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivized clicks, will have their account permanently removed from the Network and may not be compensated for fraudulent traffic. We have several fraud mechanisms at our disposal that will detect most forms within a few days of initial activity. All Creatives must be served from a Company server or serving location, or through a Company approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment. As further discussed herein, Publishers agree to not artificially inflate traffic counts using a program (including scripts), device, or other means, including without limitation agents, spiders, or bots. EXCESSIVE PAGE RELOADING OR ANY OTHER ABUSE OF NETWORK ASSETS OR SYSTEMS MAY RESULT IN LEGAL ACTION, INCLUDING WITHOUT LIMITATION REFERRAL OF THE MATTER TO THE AUTHORITIES. No Publisher shall induce visitors to click on Inventory or associated Creative based on incentives, provided, however, that, with the prior written approval of Company, certain language may appear above or below an advertisement served by Company. Without limiting the foregoing, the following methods of generating visitor interest are unacceptable and may be grounds for dismissal from the Network: mailing e-mails to persons other that those persons who have requested to receive such e-mails (i.e., spamming); use of unsolicited e-mail or inappropriate newsgroup postings to promote Publisher's Media or Creatives; autospawning of browsers; or automatic redirecting of visitors; blind text links; misleading links, forced clicks (a person should never be 'forced' to click on a Creative because their browser functions have been deactivated, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method of generating artificial or fraudulent impressions or clicks. Network Publishers shall at all times make themselves familiar with and make good faith efforts to comply with Internet industry "best practices", such as guidelines promulgated by the Electronic Retailing Association, and shall monitor and comply with any emerging trends or industry standards concerning same.

8. No Modifications to Creatives or Company Code

Except as permitted under this Agreement, Publisher may not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative or Company Code provided by Company without Company's prior written consent. Publisher may not copy Company's Ads and display them from Publisher's Website directly; redirect traffic to a Website other than that listed by Company or the Advertiser; or ask Users to take advantage of other Ads or offers other than those listed by Company or Advertiser. Any Company content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to Company Code shall be owned solely by Company.

9. Rights in Company Code

At the agreed upon pay-out price, and provided that Publisher complies with all provisions of this Agreement, Company hereby grants to Publisher a revocable, nonexclusive, non-transferable, non-sublicensable, limited use license to maintain, use, execute, and/or implement Company Code solely for purposes of receiving and displaying Creative in conjunction with Inventory and performing Publisher's other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as a grant, transfer, or license of any other right, title, or interest in or to the Company Code or any right under any patent, trade secret or other intellectual property rights of Company or any other party. Publisher acknowledges and agrees that Company and/or Advertiser owns all right, title, and interest in and to the Creative and/or Company Code (including, without limitation, all software and technology underlying any such product, service, and/or information originated by, owned, or duly licensed by Company) and all related intellectual and proprietary rights of any kind anywhere in the world. You agree that you will not use the Company Code or the results created thereby or disseminate or distribute any of this information except as may be expressly permitted by this Agreement.

10. Pre-approval Required

Publishers that have Websites that relate to or have any characteristic of the following shall be approved on a case by case basis: (i) excessive ads, app – quest/test, user content (blogs, etc.), (ii) foreign sites, (iii) controversial issues, religion, sexual orientation and/or edgy humor, (iv) wrestling, (v) anime, (vi) gaming fan, (vii) old content, and/or (viii) poor quality design and functionality.

11. Intellectual Property Ownership

Subject to the limited licenses granted to Company and Publisher hereunder, each party shall own and shall retain all right, title, and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how, and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets, and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works, or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.

12. Data Ownership

Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to Creative and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by Company from such data is the sole and exclusive property of Advertiser and/or Company and is considered Confidential Information pursuant to this Agreement. Company and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the User(s) and or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.

13. Company Websites

For purposes of this Agreement, all Websites that are owned, operated, or hosted by or on behalf of Company, including, without limitation, Company's branded Websites at http://www.PrecisionClick.com and http://www.2KDirect.com, are referred to herein collectively as the "Company Websites." You agree that you will not use Company Websites or any content therein or data obtained therefrom for any purposes other than to fulfill this Agreement and that you will not disseminate any of the information contained on Company Websites. You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to copy, access, monitor, or manage your account on Company Websites or the content contained therein except via automated means expressly made available by Company, if any, or authorized in advance and in writing by Company (for example, Company-approved third-party tools and services). The Company Websites contain robot exclusion headers and you agree that you will not bypass Company's robot exclusion headers (including using any device, software, or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the Company Websites or any program thereon. Without limitation to the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on the Company Websites, any programs thereon, or Company's infrastructure, as determined by Company.

14. Company Marks

Company logos and trademarks and any future trademarks, service marks, logos, or trade dress (collectively, "Marks") on all Company Websites are hereby acknowledged as registered or common law trademarks of Company or Company licensors (collectively, the "Company Marks"). Publisher shall not display or use in any manner any Company Marks without the prior written consent of Company or its licensors.

15. Publisher Website(s)

You hereby acknowledge that Company is not responsible for the content, hosting, performance, or maintenance of your Website(s), or Websites owned or operated by any third party (including, without limitation, other Advertisers), nor is Company responsible for order entry, fulfillment, payment processing, shipping, cancellations, returns or customer service concerning transactions or orders placed through, by, or on your Website(s), or Websites owned or operated by any third party (including, without limitation, other Advertisers). You represent, warrant, and covenant that all information you provide in connection with this Agreement, or on your Website(s), is and will be updated to remain current and accurate. You agree that your Website(s) do not and will not contain any Company-owned or licensed content, including, without limitation, any Company listings, except pursuant to a separate signed agreement with Company.

16. Updating Publisher Contact Information

To ensure full and timely performance of this Agreement, including matters regarding the accounting and processing of any applicable payments, Publishers are solely responsible for maintaining the correct account, contact, and payment information. UNLESS OTHERWISE AGREED AND ARRANGED, PAYMENT PROFILE INFORMATION MUST BE UPDATED BY THE LAST DAY OF THE MONTH PRECEDING THE NEXT PAYMENT PERIOD. Contact information shall be periodically updated online by Publisher using Publisher's Network account. Publisher acknowledges and agrees that it shall be solely responsible for any and all bank/service fees associated with returned or cancelled payments due to errors or omissions in Publisher contact or payment information, which shall be deducted by Company upon repayment of such returned or cancelled payments.

17. Publisher Privacy Policy

You agree not to transmit to Company, its information providers, licensors, licensees, consultants, contractors, agents, attorneys or employees, and Company shall not solicit or collect, any personally identifiable information of the visitors to your Website(s) unless required by Law, or otherwise agreed in writing and signed by an authorized representative of Company. You represent, warrant, and covenant that for at least the term of this Agreement and at all times you participate in the Network or Company Code is on your Website(s), you will maintain a privacy policy on your Website(s) which shall, at a minimum (i) be available as a clear and conspicuous link from main pages of your Website(s) and on all web pages where any personally identifiable information is collected, (ii) provide adequate notice, disclosure, and choices to consumers regarding Publisher's use, collection, disclosure, and security of their personal information, (iii) be in complete compliance with all FTC guidelines and any other applicable Laws, rules, and regulations with respect to online privacy, (iv) obtain all rights and/or permissions necessary for Company to use Data as contemplated under this Agreement, (v) comply with all applicable Laws, and (vi) contain language materially similar to and no less comprehensive and informative than the following paragraph:

"We have contracted with PrecisionClick to monitor certain pages of our website for the purpose of reporting website traffic, statistics, advertisement 'click-throughs', and/or other activities on our website. Where authorized by us, PrecisionClick may use cookies, action tags, and/or other monitoring technologies to compile anonymous statistics about our website visitors and traffic. No personally identifiable information is collected or transferred to any party other than the Advertiser. For more information about how the information is collected and used by PrecisionClick, please see PrecisionClick's privacy policy at http://www.PrecisionClick.com/privacy.asp."

18. Access to and Functionality of Websites

All hardware and software necessary for access to Company services and/or Member Creative, and/or required functionality thereof, including without limitation implementation of Inventory and Campaigns, shall be Publisher's sole responsibility. Publisher, at its sole cost and expense, shall be solely responsible for providing, maintaining and ensuring that all hardware, software, electrical and other physical requirements for Publisher's use of the services hereunder, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth or other equipment, and all other equipment, devices, programs, protocols and/or services required to access and use the services hereunder, are compatible with Company Code and the standard operating parameters of the Network.

19. The Availability of Company Services

Publisher understands and agrees that from time to time the Company services hereunder may be inaccessible, unavailable, or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures. While Company will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Company has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that Company is not responsible for the functionality of any third-party Website or interface. Terms of this Agreement are subject to Company hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement. Company reserves the right to discontinue offering any of the Company systems and/or Company Websites at any time. Except as otherwise specified by Company, Publisher agrees that it will direct all communications relating to any Company Website or your participation therein directly to Company and not to any other entity.

20. Company Payment Policies

Standard Company payment rate is up to 60% of the gross advertising revenue generated by Company for advertising placed on Publisher's website. Such campaign rates vary with market conditions, including without limitation market share, competitive pressures, and changes in prevailing costs. Company reserves the right to set or revise service fees in accordance with market conditions. Publishers will typically be paid within twenty-five (25) business days after the end-of-month. DO NOT INVOICE COMPANY OR REFERENCE YOUR ACCOUNT ACTIVITY BY YOUR OWN PURCHASE ORDER OR ACCOUNTING INFORMATION; ALL PUBLISHER INVOICES WILL BE DISCARDED. Publishers will be paid at the account level as further provided herein. All accounts will be settled in US dollars ($US). No check will be issued for any amount less than $25US ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network. As a condition to Company's obligation to make payments hereunder to Publisher, Publisher must have on file with Company a completed and accurate W-9 (for US-based Publisher's) or a completed and accurate W-8 (for non-US-based Publisher's). Publisher payments will be withheld until the appropriate taxation documents are received by Company. If the required tax documents are not on file with Company within three months of the date of a scheduled payment, Company may charge a monthly administrative fee, representing Company's cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. All payments shall be based on actual Inventory and other transactions as defined, accounted, and audited by Company. Calculation of Publisher earnings, including Impressions and click-through numbers, shall be in Company's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to Company detailing, with specificity, Publisher's concerns. Thereafter, Company will provide Publisher with an explanation or, if such calculations are determined by Company to be incorrect, an adjustment. Company's calculations shall be final and binding. In the event no adjustment is necessary, Publisher shall reimburse Company for its expenses in responding to Publisher's requests under this Section. Company reserves the absolute right to refuse, stop or terminate any payment to any account or Publisher that violates any of the representations, warranties, terms or conditions of this Agreement, or applicable Laws. Company will be responsible for determining, in its sole and absolute discretion, what acts or omissions violate Network policies, including payment policies, and what acts or omissions include activity that is deceptive or fraudulent in nature. Examples of such acts may include without limitation automated click-through transactions, clicks without referring URLs, extraordinarily high numbers of repeat clicks, and clicks from non-approved root URLs. If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, Company reserves the right to withhold payment and take appropriate legal action.

21. Limitations of Warranties and Liability

(a) Disclaimer of Warranties.
THE SERVICES HEREUNDER, DATA, AND ALL OTHER COMPANY WEBSITES, SYSTEMS, AND CODE (COLLECTIVELY, THE "COMPANY MATERIAL") AND ALL CREATIVE, THIRD PARTY WEBSITES, APPLICATIONS AND/OR E-MAIL (COLLECTIVELY, THE "THIRD PARTY PRODUCTS") ARE PROVIDED OR MADE AVAILABLE BY COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, EXCEPT AS MADE EXPRESSLY AND EXPLICITLY HEREIN. PUBLISHER EXPRESSLY AGREES THAT PUBLISHER'S USE OF THE COMPANY MATERIALS AND THIRD PARTY PRODUCTS, OR ANY PART THEREOF, IS AT PUBLISHER'S SOLE RISK AND EXPENSE. SPECIFICALLY, BUT WITHOUT LIMITATION, COMPANY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO, AND COMPANY DISCLAIMS ANY AND ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, PENALTY OR DAMAGE OF ANY KIND WHATSOEVER RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO, ANY OR ALL OF THE FOLLOWING: (i) THAT THE COMPANY MATERIALS OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, SHALL BE FREE OF ERRORS OR OMISSIONS, INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; (ii) THE AVAILABILITY, ACCURACY OR UNINTERRUPTED USE OF THE COMPANY MATERIALS OR THIRD PARTY PRODUCTS OR ANY PORTION THEREOF, ANY CONTENT THEREON OR ANY INTERFACE THERETO; (iii) THAT THE COMPANY MATERIALS OR THIRD PARTY PRODUCTS, OR ANY PART THEREOF, ARE OR SHALL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS; (iv) THAT ANY THIRD PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH HYPERLINKS CONTAINED IN ANY COMPANY OR NETWORK WEBSITE; (v) PUBLISHER'S USE OF THE ANY COMPANY MATERIALS OR THIRD PARTY PRODUCTS ARE OR SHALL BE FREE OF ERRORS OR OMISSIONS, TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OTHER DEFECTS, OR HARMFUL COMPONENTS; (vi) ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH COMPANY, THIRD PARTY PRODUCTS, COMPANY SYSTEMS OR COMPANY WEBSITES OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF, ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THEREFROM, OR WEBSITES LINKED THERETO OR THEREFROM ARE OR SHALL BE FREE OF ERRORS OR OMISSIONS, TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OTHER DEFECTS, OR HARMFUL COMPONENTS; OR (vii) THE SUCCESS OR RESULTS, ECONOMIC OR OTHERWISE, THAT MAY BE OBTAINED BY USE OF, OR OTHERWISE AVAILABLE FROM, THE COMPANY MATERIALS OR THE THIRD PARTY PRODUCTS, OR ANY PART THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO ONE OR MORE OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU IN FULL, BUT WILL OTHERWISE APPLY TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAWS. THIS LIMITED WARRANTY MAY GIVE YOU SPECIFIC LEGAL RIGHTS, AND/OR MAY LIMIT OTHERS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH MAY VARY FROM STATE TO STATE. BY EXECUTING THIS AGREEMENT YOU ACKNOWLEDGE THAT YOU HAVE HAD A RIGHT TO HAVE SAME REVIEWED BY COUNSEL, AND HAVE EITHER WAIVED OR AVAILED YOURSELF OF SAME.

(b) Limitation of Liability.
NEITHER COMPANY NOR ANY COMPANY AFFILIATE OR INDEMNITEE SHALL BE SUBJECT TO ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE TO PROVIDE REFERENCE OR ACCESS TO OR THE FUNCTIONALITY OF ALL OR ANY PART OF THE NETWORK, INTERNET, ANY WEBSITE, OR DELAYS IN DELIVERY OR NON-DELIVERY OF CREATIVE OR DATA, INCLUDING, WITHOUT LIMITATION, DIFFICULTIES WITH A CUSTOMER, MEMBER OR CREATIVE, DIFFICULTIES WITH A THIRD-PARTY SERVER, OR ELECTRONIC MALFUNCTION, ERRORS IN OR OMISSIONS IN ANY CREATIVE, FAILURE OF PERFORMANCE, OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR OTHER MALICIOUS DEVICE, PROCESS OR PROTOCOL, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER BASED ON BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION OR THEORY OF ANY KIND. IN NO EVENT SHALL COMPANY OR ANY COMPANY ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE NETWORK, ANY THIRD PARTY PRODUCT OR COMPANY MATERIAL OR WEBSITES LINKED THEREFROM, OR FOR ANY BREACH OF WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY OR MAY NOT APPLY TO YOU. YOU AGREE THAT YOU WILL NOT HOLD COMPANY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH ANY PROGRAMS, THIRD PARTY PRODUCTS, COMPANY SYSTEMS OR COMPANY WEBSITES OR WEBSITES LINKED TO THEREFROM, INCLUDING, WITHOUT LIMITATION, THIRD PARTY SERVICE PROVIDERS, THOSE WITH WHOM COMPANY CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE COMPANY NETWORK OR SYSTEMS, AND/OR COMPANY WEBSITES AND/OR THOSE TO WHOM COMPANY PROVIDES LINKS FOR CONTENT, ADVERTISING AND/OR ANY OTHER TYPE OF DATA OR INFORMATION. SINCE ACTUAL DAMAGES OR AMOUNTS IN ISSUE DUE TO FAILURES REFERRED TO HEREIN ARE PROSPECTIVE, AND DIFFICULT OR IMPOSSIBLE TO ASCERTAIN, AND IN CONSIDERATION OF THE PRICING OF THE SERVICES PROVIDED BY COMPANY HEREUNDER, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL COMPANY'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSDAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

(c) Consideration.
PUBLISHER ACKNOWLEDGES THAT COMPANY HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.

22. Entire Agreement and Modification

This Agreement, including exhibits, addenda, and the Company Privacy Policy (as amended from time to time and which is incorporated herein by reference), contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended, or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click-through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless signed by an executive of both Parties with the corporate authority to do so. Notwithstanding the foregoing, Company shall have the right to change, modify, or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such Change. Publisher's continued use of the Network after the effective date of such Change shall be deemed Publisher's acceptance of the revised Agreement. No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so. PUBLISHER WILL PERIODICALLY REVIEW COMPANY'S WEBSITE TO ENSURE COMPLIANCE WITH THIS AGREEMENT AND COMPANY'S PRIVACY POLICY (AS POSTED ON OR LINKED FROM A COMPANY WEBSITE), EITHER OF WHICH COMPANY MAY AMEND FROM TIME TO TIME AS MAY BE REASONABLY NECESSARY, AS DETERMINED IN ITS SOLE BUSINESS DISCRETION. PUBLISHER AGREES TO BE BOUND BY ANY SUCH AMENDMENT AND ASSUMES FULL RESPONSIBILITY FOR PERIODICALLY REVIEWING ITS PRIMARY COMPANY CONTACT WEBSITE WITH RESPECT THERETO.

23. Force Majeure

Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

24. Publicity

Publisher shall not release any information regarding the Network, Campaigns, Creatives, Members, this Agreement, or Publisher's relationship with Company or its Members, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of Company. Company shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made by either party without the mutual consent of Company and Publisher.

25. Reservation of Remedies

You understand and acknowledge that Company reserves all rights to proceed against any Publisher for actions harmful to the Network, Members, Publishers, and/or the general public, including without limitation breaches or defaults of applicable agreements, misrepresentation, fraud, or violation of Laws, and that Company reserves any and all appropriate remedies concerning same, including withholding payments hereunder, and taking appropriate legal action, including without limitation resort to equitable remedies such as injunctive relief, to prevent any further damage to Company operations and the Network and cover any and all reasonable damages resulting from same.

26. Company's Privacy Policy

Company's Privacy Policy as of the date hereof is hereby incorporated into this Agreement as if fully stated herein. Publisher shall be subject to and bound by all terms and conditions as may be applicable, including without limitation any published changes in same that may be reasonably necessary due to applicable Laws or Internet industry "best practices", as determined by Company in its reasonable discretion.

27. No Assignment

Publisher may not resell, assign, or transfer any of its rights hereunder without the express prior written consent of Company. Any attempt by Publisher 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.

28. Governing Law

This Agreement is governed by the Laws of the State of California (USA), except for its conflict of Law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.

29. Capacity to Execute Agreement

By executing this Agreement, You certify that You or Your Authorized Representatives are at least 18 years of age, and there is no legal reason that You cannot enter into a binding contract, and there is no agreement, order, or restriction under Laws that prevents You from entering into this Agreement.

30. Confidentiality and Non-Disclosure

"Confidential Information" means (1) any confidential and proprietary information or trade secret of Company, whether or not related to this Agreement, the Network, Company Code, Members, or other Publishers, or (2) any information disclosed to you by Company, either directly or indirectly, in writing, orally or by receipt and review of same authorized by this Agreement, including without limitation Company Code and Data, other than information that you can establish: (i) was publicly known and/or generally available in the public domain prior to the time of disclosure to you by Company; (ii) enters the public domain after disclosure to you by Company, other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, prior to the time of disclosure by Company as shown by your files and records. You shall not at any time (a) misappropriate, disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to your legal counsel, employees and agents who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or (b) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you and in accordance with the Agreement. You agree to take all measures to protect the secrecy, and avoid misappropriation, disclosure and unauthorized use, of the Confidential Information. You may disclose Confidential Information if required by Law, provided that you give Company prompt written notice prior to such disclosure and you provide assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legally required disclosure. All Confidential Information shall remain Company's personal tangible or intangible proprietary and confidential trade property, and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to Company immediately upon Company's request, and also, upon termination of this Agreement. You may not issue any press release or other public statement regarding Confidential Information without the prior written consent of an authorized executive at Company.

31. Non-Solicitation

Publisher recognizes that Company has proprietary relationships with the third-party Advertisers which provide Creatives via the Network and Publisher agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any Advertiser that is known to Publisher to be an advertising client and/or customer of Company (e.g., an Advertiser which provides Creatives via the Network), for purposes of offering products or services that are competitive with Company (including the provision of advertising inventory) nor contact such Advertisers for any purpose, during the term of Publisher's membership in the Network and for the 90-day period following termination of Publisher's membership in the Network, provided however, that the foregoing restriction shall not apply to Advertisers with whom Publisher already has a relationship prior to the placement of advertising on Publisher's Media on behalf of such Advertisers by Company, as explicitly proven by documented evidence of such prior relationship provided by Publisher to Company immediately upon Company's written request.

32. 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.

33. Notices

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 USA (effective upon actual receipt). If to Publisher, to the e-mail or physical address listed on Your Account (effective upon sending as long as Company does not receive an error message regarding delivery of the e-mail) or five (5) days after mailing.

34. Waiver

No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision, or condition hereof. No waiver shall be binding unless executed in writing by the party to be bound thereby.

35. Survival and Severability

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. 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. 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, then (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.

36. Miscellaneous

Any rights not expressly granted in this Agreement are reserved by Company, and all implied licenses are disclaimed. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement. Nothing contained in this Agreement will prevent Company from complying with current or future Internet commerce or privacy Laws. Company reserves the right to discontinue offering any of Company systems and/or Company Websites at any time. Except as otherwise specified by Company, you agree that you will direct all communications relating to any Company Website or your participation therein directly to Company and not to any other entity.

37. Remedies and Waiver

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

38. Attorneys' Fees

If any action in Law or in equity is necessary to enforce this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs and expenses in addition to any other relief to which such party may be entitled.

39. Counterparts

This Publisher 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 Publisher Agreement shall be deemed to be an original.

Publisher Signature: _______________________________________________ Date: _____________________