ACADEMIXDIRECT.COM THIS PUBLISHER AGREEMENT ("Agreement") is entered into by and between Internet Media, Inc., a California corporation doing business as AcademixDirect.com ("Company"), and the publisher signing up to become an affiliate of AcademixDirect ("Publisher"), referred to herein jointly below as the "Parties" or individually a "Party.” WHEREAS, Company is the owner of AcademixDirect, an online affiliate advertising network (the “Company Network”), which can provide advertising to, publishers that join the Company’s affiliate network; WHEREAS, Publisher is a third-party provider of Internet traffic through Internet websites, email, and search engine marketing channels who desires to join the Company Network in accordance with the terms and conditions of this Agreement as more specifically set forth below; NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises and covenants set forth herein, the Parties agree to be legally bound as follows: Definitions "Advertiser" means the advertiser or advertising agency providing advertisements to Company for use on Publisher's web site(s) as specified in the Company Network. "Advertisement" means the graphic or text file(s) contained in the Company Network and available for Publisher's use. “Approved Marketing Channels” means the marketing channels which Publisher may use to run Company’s Advertisements, including but not limited to urls, web pages, contact forms, email, and search engine marketing methods that Publisher has submitted to Company and which Company has approved. "Click-Through" means the number of times, as recorded by Company's server, a user directly interacts with (i.e., clicks on) an Advertisement linked for transfer to the Advertiser's site or suggested destination. Advertising campaigns conducted on a cost per click basis are known as "CPC". Click-Throughs are counted for Unique, Valid Users by a twenty-four (24) hour period. "Company Network" means www.AcademixDirect.com. "Company" means Internet Media, Inc., a California corporation. “CPA” means a campaign for which Publisher shall be paid on a cost-per-action basis. “Creative” means any type of advertising creative used by Publisher to deliver Valid Sign-ups hereunder, including, but not limited to buttons, banners, email, video creatives, text-links, pop-ups and pop-unders. "Double Opt-In" means that the Web site may not use a User's collected information unless the User specifically directs the Web site to do so and also receives and responds positively to an e-mail confirmation. “Host & Post” means publishers perform Advertising Services and capture User data and transmit to Company Network in real-time in accordance with Company Network technical specifications. "Impression" means the number of times an Advertisement or Creative is served to a User. Company shall measure impressions in accordance with its standard methodologies and protocols. Advertising campaigns conducted on a cost-per-impression basis are known as "CPM". “Insertion Order” means the Company’s authorization to Publisher to run Advertisements through Publisher’s Approved Marketing Channels containing Advertisement requirements, quantities, and CPA. Insertion Orders shall be issued on a monthly basis and shall be executed by both Parties prior to Publisher commencing any Advertising. “Landing Page” means the web page on Publisher’s web site to where the User is directed after clicking on a Creative. "Opt-in" means that the consumer has made an active, affirmative choice to select the advertisement in question in order to be counted as a Valid Sign-up. Forced, negative choice, passive, opt-out or other types of non-active, non-affirmative choice actions are NOT "Opt-in". " Opt-out" means that the consumer is not required to make an active and/or affirmative choice to select the advertisement in order to be counted as a Valid Sign-up. The Web site may use a User's collected information unless the User specifically directs the site not to do so. “Publisher Application” means the application by Publisher to join the Company Network that shall be submitted electronically or online at www.AcademixDirect.com. "Start Date" means the first day an Advertisement may be displayed on the Company Network. "Stop Date" means the last day an Advertisement may be displayed on the Company Network. "Unique Sign-Up" means a User who Opts-In or Double Opts-In to a Web site who is not already a member of or registered with the Advertiser or Advertiser's Campaign. "User" means any person accessing a Web site or electronic mail services. "Valid Sign-up" means a Unique Sign-up who provides complete information as required by Advertiser. A Sign-up who is directly compensated for providing the required information is not valid. " Web site" means an HTML document containing a set of information available via the Internet. 1. Advertising Services. 1.1 At the agreed to pay-out price as more specifically set forth in the Company Network or executed Insertion Order (and provided that Publisher complies with all provisions of this Agreement), Company hereby grants to Publisher a nonexclusive, limited, revocable license to (i) market, display, perform, copy, transmit, and promote the Advertisement; and (ii) market, display, perform, copy, transmit, and promote the Advertisement to third parties both in strict accordance with the terms of this Agreement. Publisher's use of the Company’s copyrighted materials in violation of this Agreement is strictly forbidden and will result in this limited license being immediately withdrawn and may further result in Publisher being held liable to the fullest extent permitted under any and all applicable laws. 1.2 Upon acceptance by Company of a properly completed Publisher Application, Company shall provide Advertisements for placement on Publisher’s Approved Marketing Channels through the submittal of an Insertion Order for Publisher signature. If Publisher does not properly complete a Publisher Application, execute Company’s Insertion Order, or submit to Company any changes to its Approved Marketing Channels as required by Company, then this Agreement shall be of no force and effect, and Company shall have no obligation to Publisher hereunder. For the purposes of this Agreement, Company's acceptance of a Publisher Application shall in all cases be evidenced by an e-mail clearly communicating Company's acceptance thereof and shall contain further instructions for Publisher regarding participation in the Company Network. If an acceptance email is not sent to Publisher or Publisher does not begin participation in the Company Network in a timely manner following receipt of an acceptance email, then this Agreement shall be of no force and effect, and Company shall have no obligation to Publisher hereunder. 1.3 Participation in the Company Network is subject to the prior approval of the Company and is limited only to the specific Advertisements for which Publisher has applied for approval and which the Company has approved. Creatives shall be placed on Approved Marketing Channels only. 1.4 Publisher acknowledges and agrees that the Company is merely a facilitator of relationships between Advertisers and Publishers, and that it performs this service for a fee. Except as provided in its agreements with Advertisers, the Company has no control over its Advertisers and is not responsible for their conduct beyond the scope of the Advertising Agreement. Publisher further acknowledges and agrees that the Company may, at any time, or from time to time, alter the terms of its Advertising Agreements, in its sole and absolute discretion. 1.5 Publisher acknowledges and agrees that the Company's sole obligation to Publisher under this Agreement with respect to Advertisements shall be to provide such Advertisements for placement on the Company Network as provided in this article. 2. Rules and Regulations. 2.1 Publisher acknowledges and agrees that all site submissions are subject to review by the Company and may be rejected by Company for any reason, whether such rejection is reasonable or not. The Company has sole discretion to filter, screen or censure content published in the Company Network. Without limiting the restrictiveness of the foregoing, the following are examples of the types of sites that will not be accepted: adult sites containing pornographic or offensive material; sites engaged in the piracy of copyrighted, trademarked, or patented material; software trading (warez) sites; hacking/phreaking sites; libelous or defamatory sites; sites containing software piracy; and sites with any illegal activity whatsoever. Further, web sites that do not feature customer-friendly site navigation or do not meet an acceptable commercial or aesthetic standard, in Company’s sole discretion, are prohibited and will be rejected. Co-registration sites (sites which allow a User to register for one offer and then receive information from additional third-party offers) and chain registration sites (sites which allow a User to register for one offer and then be shown subsequent multiple offers one after another) are prohibited without the prior written approval of Company. The above examples are meant to be illustrative only and under no circumstances shall be construed as an exhaustive list. 2.2 Publisher shall not: (1) violate terms and conditions of any search engine(s) being utilized; (2) engage in search engine spam, doorway pages, cloaking, etc.; (3) conduct search ads falsely suggesting a link between Company and a third-party, or otherwise infringing on a third-party’s intellectual property or privacy rights; (4) engage in any conduct which is violative of any rule, regulation, law or ordinance, which governs the Publisher’s website or content; (5) engage in “auto spawning” of browsers or in automatic redirecting of visitors; (6) use blind text links, forced links or any other method that may lead to artificially high numbers of delivered clicks; (7) serve Creatives, or drive traffic to such Creatives, using any downloadable applications with the prior written approval of the Company. 2.3 Without prior written approval of the Company, Publisher shall not purchase keywords from search engine service providers in order to drive traffic to Creatives or Landing pages, including but not limited to purchasing keywords or online advertising inventory that include the trademark, service mark, or brand name of the Company Network advertising client, or any derivative thereof, to which the applicable Creative relates which includes but is not limited to terms listed at http://www.academixdirect.com/nobiddinglist.htm and as may be updated from time to time at and informed to Publisher. 2.4 Publisher must not: (i) incentivize offers or otherwise create the appearance an offer is incentivized;(ii) place statements near the Advertisements requesting that Users "click" on the Advertisement (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (iii) place misleading statements near the Advertisement (i.e., "You will win $5,000"); (iv) change any Advertisement in any way without Company's prior express written permission; (v) redirect traffic to a Web site other than that listed by the particular Advertiser(vi) ask Users to take advantage of other Advertisements or offers other than those listed by the particular Advertiser; (vii) use any name other than Publisher's in the "from" box when sending an e-mail to a consumer; and/or (ix) replace or modify Publisher tracking codes. Publisher acknowledges and agrees that Company reserves the right to define or determine “incentivization” prohibited under this provision and that the use of any name other than Publisher’s in the “from” box (specifically including, but not limited, to Company’s name or the ultimate Advertiser's name), is prohibited. If Company believes in its sole and absolute discretion that Publisher or its sub-publishers have violated any of the foregoing restrictions in any way, Publisher’s membership in the Company Network may be immediately terminated without notice or opportunity to cure such violation and all unpaid commissions whether earned or unearned, will be forfeited, as agreed to and liquidated damages for Publisher’s breach of this provision. 2.5 Company will only pay for Valid Sign-Ups. Any data submitted that is not a Valid Sign-Up, will not be paid and upon payment for the Valid Sign-up, Company shall have no further obligation to Publisher. Publisher acknowledges and agrees that Company and/or its Advertisers, in their sole and absolute discretion, shall have the right to market and re-market the person(s) and or data represented in the Valid Sign-up and any leads that are rejected as not a Valid Sign-Up, without further obligation to Publisher. Once a User submits information in response to an Advertisement, Publisher shall not resell or remarket to any person or third-party. 2.6 Publisher acknowledges and agrees that it must: (i) place Advertisements through Company's graphics; (ii) load Advertisements from the Company's server; and (iii) use only "html" or other code supplied to Publisher by Company with no modification by Publisher. 2.7 To be compensable under this Agreement, all Click-Throughs must: (i) go through Publisher's unique gateway; (ii) be recorded by Company's server; and iii) be non-incentivized. 2.8 Publisher acknowledges and agrees that Company deems any conversion ratios more than 2% above the current average and instances where 30% or more of data submitted is found to be fraudulent as per se evidence of illegal activity. If, in its sole and absolute discretion, Company deems Publisher to be conducting illegal activity, such illegal activity will result in immediate termination of this Agreement without notice and opportunity to cure such activity and without payment to the Publisher for any leads or data submitted. 2.9 Company will periodically review Publisher's Web site(s) in order to determine whether or not Publisher or Click-Throughs are violating any of the terms of this Agreement. If, in its sole and absolute discretion, Company deems that Publisher and its Click-Throughs, or Publisher’s sub-publishers and its Click-Throughs, are violating any of the terms of this Agreement, such violation will result in immediate termination of this Agreement without notice and opportunity to cure such violation and any earned or unearned commissions will be forfeited. 2.10 For Host & Post lead generation, Publisher must adhere to the following policies: (a) host forms in accordance with the campaign specifications provided by Company; (b) modify form as may be requested from time-to-time by Company for quality assurance purposes; (c) obtain Company’s prior written approval before launching the campaign; (d) only valid leads as determined by the Advertiser and Company will be paid for; (e) no fields may be pre-populated unless approved in writing by Company; (f) User information will not be shared with other Advertisers or resold to any third parties unless the User opts in to receive additional marketing from Publisher in accordance with Publisher’s Privacy Policy and has been approved in writing by Company; (g) Leads not posted within twenty-four hours of generation of the lead may not be accepted at Company’s sole discretion; (h) Publisher is responsible for logging in to its account daily to check stats and must notify Company of any discrepancies within 2 business days; (i) Company is not responsible for leads which do not successfully post to the system. 2.11 If Publisher conducts e-mail campaigns to its users, Publisher shall immediately upon the request of Company supply the name, date, time and IP address where the consumer signed-up and/or gave permission to the Publisher to conduct such e-mail campaign. Publisher is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Publisher. Publisher will respond to all consumer complaints in a timely fashion and shall immediately remove any person from its database who makes such request for removal. In addition, all e-mail must contain a functioning unsubscribe link which, when activated by a user, actually and permanently removes the user's e-mail address from the Publisher's database. 2.12 PUBLISHER ACKNOWLEDGES AND AGREES THAT ALL E-MAIL CAMPAIGNS MUST ONLY BE CONDUCTED TO PERSONS WHO HAVE GIVEN PRIOR PERMISSION. FAILURE TO FOLLOW THIS RULE IS A MATERIAL BREACH OF THIS AGREEMENT AND MAY RESULT IN FORFEITURE OF ALL PAYMENT DUE HEREUNDER AND IMMEDIATE REMOVAL FROM THE COMPANY NETWORK. BY CONDUCTING AN EMAIL CAMPAIGN WITH ADVERTISEMENTS AVAILABLE THROUGH THE COMPANY NETWORK, PUBLISHER REPRESENTS AND WARRANTS THAT SUCH CAMPAIGN IS CONDUCTED IN ACCORDANCE WITH THE PRIVACY POLICY SET FOR ON PUBLISHER'S WEB SITE AND IN ACCORDANCE WITH ANY AND ALL APPLICABLE LAWS, WHETHER STATE OR FEDERAL. 2.13 Publisher warrants and agrees that all email marketing shall not be deemed SPAM mail by ensuring that all email satisfies the following requirements: a. The email must identify Publisher as the sender of the email; b. The email shall not contain a falsified sender domain name or non-responsive IP address; c. The email shall not contain a false or misleading subject line that disguises or conceals the content of the email; d. The email must include opt-out information for the recipient to discontinue receiving further email from Publisher; e. The email must include a valid email address for the recipient to opt-out which has been valid for at least thirty days prior to the date of transmission of the email and which processes the opt-out request within ten days of receipt of such request; f. The email must contain a valid physical mailing address (P.O. Box addresses are not acceptable); g. The email must clearly describe the marketing purposes for which the recipients email address will be used; h. The email must conspicuously notify recipient that the message is advertisement or solicitation; i. The email shall not be sent for the purpose of harvesting email addresses for the purpose of sending future email correspondence; and j. The email shall not contain any nudity, profanity, sexually oriented materials, hate speech or other obscene content. 2.14 PUBLISHER SPECIFICALLY AGREES TO AT ALL TIMES DURING THE TERM OF THIS AGREEMENT COMPLY WITH THE FEDERAL CAN-SPAM ACT OF 2003 REGARDING THE SENDING OF EMAIL. FULL TEXT OF THE CAN-SPAM ACT, CAN BE FOUND HERE: http://www.gointernetmedia.com/canspamact.pdf. 3.Modifications. 3.1 Company reserves the right to change, modify, add to, or remove any portion of this Agreement at any time, provided that Company first notifies Publisher within three (3) business days via posting on http://www.AcademixDirect.com. Company also reserves the right to add to, change, modify, suspend, or discontinue any aspect of the service at any time, provided that Company first notifies Publisher within three (3) business days via posting on http://www.AcademixDirect.com. In either case, such change(s) or modification(s) will be incorporated by reference in to this Agreement and shall supercede the terms hereof unless Publisher responds within three (3) business days of the e-mail transmittal. Publisher's rejection of such change(s) or modification(s) may be grounds for termination of this Agreement by Company but will not affect the Publisher’s right to receive any Commissions earned by you prior to the termination Date. 3.2 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. 4. Auditing and Tracking of Campaigns. 4.1 Publisher acknowledges that Company requires it maintain a tracking system that will serve as the verifiable log of registrations by URL, Origin ID, or Publisher ID code. The technical specifications of the tracking system and its delivery methods must meet the reasonable satisfaction of Company before Company will provide any Advertisement(s). Company requires both a weekly and month’s end summary report reflecting the exact number of Valid Sign-ups delivered. The Company, in its reasonable discretion and through consultation with Publisher, will determine the form of said reports. 4.2 Company has the right to audit any and all reports furnished by Publisher hereunder and to make a final determination of compensable Valid Sign-ups delivered by Publisher under this Agreement. Company reserves the right to terminate, increase or decrease the advertising allocation(s) set forth in the Insertion Order(s) at any time without obligation to Publisher. 4.3 Company shall have the sole responsibility in it absolute and final discretion for calculation of statistics, including but not limited to impressions, Unique Sign-ups, actions and revenue generated on Publisher’s Approved Marketing Channels. Greenwich Mean Time (GMT) shall be the time standard for traffic and tracking calculation purposes, and statistics shall be available to Publisher at http://www.AcademixDirect.com. Publisher acknowledges and agrees that the online statistics may not be 100% accurate and that the Company may make adjustments to the Publisher’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions and statistical errors. 4.4 Publisher acknowledges and agrees that submission of a lead to the Company does not guarantee payment to Publisher. Publisher acknowledges that it is under, and subject to, constant quality review by the Company and Company network and that payments due to Publisher hereunder are based on several performance factors including, but not limited to, submission of complete and valid data by the user and overall effectiveness of Publisher’s marketing activities for a given campaign, as determined by the Company in its sole and absolute discretion, on a case by case basis. Where Company, in its sole and absolute discretion, determines that Publisher’s campaign has a high effectiveness rating, this will result in a higher number of Units being accepted by the Company. Conversely, a lower effectiveness rating by the Company, will result in a lower number of Units being accepted by the Company. 5. Payment. 5.1 Company will collect payments from Advertiser and will pay Publisher commissions (“Commissions”) based on the amounts set forth in the Insertion Order for each offer. Company shall process Publisher's payment thirty (30) days from the last business day of each month in which earnings are accrued and for which Company has received payment from the Advertiser. Company does not guarantee payment to Publisher if the Advertiser does not pay Company the amounts due for Advertising Services rendered. The Company's sole obligation to Publisher under this Agreement in regard to payment is to pay Commissions to Publisher following receipt of payment for Advertising from the Advertiser, and Publisher specifically acknowledges and agrees that it shall not be paid Commission unless and until Company is paid by the Advertiser. Publisher agrees that Company acts as a third-party tracking entity between the Advertiser and Publisher. In the event of non-payment by Advertiser to Company, Publisher agrees not to be paid by Company and to seek payment directly from Advertiser. 5.2 Notwithstanding the foregoing provision, Company, in its sole and absolute discretion, may pay Publisher Commissions prior to receiving payment from Advertiser in which case Publisher agrees that this payment is an advance of commissions, and Company shall be entitled to recoup any advance of commission paid to Publisher through: a) leads/sales returned or rejected by Advertiser within ninety days from the date of generation; b) invalid data submitted by Users within sixty (60) days after the date of Publisher’s invoice; and/or c) overpayments to Publisher due to duplicate leads/sales or other bona-fide errors. 5.3 Notwithstanding any other provision in this Agreement, Company shall not be obligated to make any payment of Commissions to Publisher unless the aggregate amount of earned Commissions is equal to or exceeds the payment threshold of one hundred dollars ($100) as set forth in the Publisher Application. Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period. Company shall not be obligated to pay for any Valid Sign-ups that exceed the allocation(s) set forth in the Insertion Order(s). 5.4 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 Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Payments will be withheld until Company receives the appropriate taxation documents. 6. Termination. 6.1 Publisher may terminate this Agreement upon five (5) business days prior written notice to Company. Company reserves the right to: a) terminate this Agreement with Publisher immediately without payment in the event that the Publisher violates any of the rules set forth above or any other provisions of the Agreement; and b) terminate this Agreement with Publisher in its sole discretion for any reason or for no reason at all. 6.2 Termination may be effected by delivery to the non-terminating party of appropriate notice, delivered via e-mail, fax or other means of public communication. 6.3 Immediately upon termination by either party, Publisher will (i) remove any and all Advertisements from any web site owned or operated by it; and/or (ii) suspend any e-mail campaign that has not already been sent. As a precondition to receiving any earned but unpaid compensation due and owing under this Agreement, Publisher will certify to Company, via e-mail (within two (2) business days following termination), that this condition has been met. 7. Representations and Warranties. 7.1 Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power, and authority to enter into this Agreement, and to grant the rights and licenses granted and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate: any agreement to which such Party is a party or by which it is otherwise bound; any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; (iii) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party in accordance with its terms; (iv) such Party shall render all services to the other Party in a professional and workmanlike manner, in accordance with generally accepted industry standards; (v) such Party will abide by the terms and conditions set forth in this Agreement and (vi) such Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in the Agreement. 7.2 The advertising service provided by the Company, its use and the results of such use are provided "as is." 7.3 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. COMPANY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON COMPANY'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. 8. Limitation of Liability. 9. Indemnification. 9.1. Publisher is solely responsible for any legal liability arising out of or relating to: (i) the Publisher's Web site(s); (ii) any material to which users can link through the Publisher's Web site(s); and/or (iii) any consumer and/or governmental/regulatory complaint arising out of any e-mail 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. Publisher shall indemnify, defend, and hold harmless Company and its officers, agents, affiliates and employees from and against any and all claims, losses, damages, actions, liabilities, expenses, or costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits, or proceedings against the Publisher or its sub publishers for: (a) for libel, defamation, violation of rights of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Web site(s); (b) any material breach of any duty, representation or warranty under this Agreement; (c) any duty, representation, or warranty to provide Advertisement(s) for placement on the Publisher's Web site(s) due to any breach by Publisher of this Affiliate Application; or (d) loss or damage resulting from file contamination, virus, worm, or Trojan horse originating from the Publisher's Web site(s). 9.2 If the Company (the “Indemnified Party”) becomes aware of any matter it believes is indemnifiable hereunder involving and which involves any claim, action, suit, investigation, arbitration, or other proceeding against the Publisher (the “Indemnifying Party”) by any third party (the "Action"), Company shall give Publisher prompt written notice of such Action. Such notice shall: (i) provide the basis on which indemnification is being asserted; and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnified Party, with the Indemnifying Party and its counsel in the defense, shall have the right to participate fully, at its own expense, in the defense of such Action and shall be free to compromise or defend (and control the defense of) such Action, upon such terms and conditions as it, in its sole and absolute discretion, deems reasonable. 10.1 Publisher acknowledges and agrees that during the term of this Agreement it will receive and become privy to certain business information and technological “know-how” which Company deems proprietary, privileged and confidential (the “Confidential Information”). As used herein, Confidential Information means and includes any written corporate, financial or business information, technical data, systems, or “know-how”, including, but not limited to, that which relates to data on “do not send” lists, market research, product plans, products, services, customers, markets, software, patents, trademarks, tradenames, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, or finances of the Company and the Network, including presentations, reports or communications based on or derived therefrom. Confidential Information does not include information, technical data or “know-how” which (i) is in the possession of the Publisher as of the date of this Agreement provided such was received by the Publisher from authorized or public sources; or (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper action or inaction of the Publisher or other third party; or (iii) is approved by the Company, in writing, for release to the Publisher. 10.2 Publisher agrees not to use any Confidential Information disclosed to it by the Company for its own use for any purpose other than authorized by this Agreement or the Company in writing. Publisher will not disclose any Confidential Information of the Company to any third party unless required to do so as required by law. Publisher further agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Company in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Publisher agrees to immediately notify the Company in writing of any misuse or misappropriation of Confidential Information when such becomes known to Publisher. 10.3 The duties, obligations and restrictions placed upon Publisher under this provision shall survive the termination of this Agreement. 11. Governing Law/Dispute Resolution. 12. Miscellaneous. 12.1 Non-Solicitation. During the term of this Agreement and for a period of two (2) years following the termination of this Agreement, Publisher shall not solicit Company’s employees, the identities of which may be disclosed to Publisher during the term of the Agreement. In addition to Company’s rights and remedies under this Agreement or at law, Publisher agrees that monetary damages for a breach of or a threatened breach of this provision will not be adequate to compensate Company for the damage suffered and that Company shall be entitled to injunctive relief (including temporary and preliminary relief). In addition to any other remedies available to Company, if Publisher shall employ a Company employee in violation of this Agreement then Company shall be entitled to agreed to and liquidated damages of two times the employee's annual salary at the time the employee is hired by Publisher. 12.2 Non-Competition. Publisher shall not, during the term of this Agreement and for one (1) year thereafter, implement any cost-per-action (“CPA”) agreements with any Advertiser with whom it did not (at the time of termination of this Agreement) have a previously existing CPA agreement. 12.3 Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement will not be construed as a waiver or relinquishment to any extent of such Party's right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect. 12.4 Force Majeure. Neither Party shall be liable for, or considered in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (except with respect to payment obligations) as a result of any causes or conditions which are beyond such Party's reasonable control and which such Party is unable to overcome by the exercise of reasonable diligence (including without limitation, the failure of Company to provide Advertisement(s) for placement on Publisher's Web site(s)); provided that the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party. 12.5 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, partner, employee, or joint venture partner of the other Party. Neither Party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. 12.6 Survival. Any obligations, which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement, shall survive termination of this Agreement and remain in full force and effect 12.7 Severability. In the event any provision of this Agreement is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement;(i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect. 12.8 Remedies. Except as otherwise specified herein, the rights and remedies granted to a Party under the this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which either Party may possess at law or in equity. 12.9 Assignment. Publisher’s right to participate in the Company Network is non-transferable, except in the event of a sale of all or substantially all of its assets or stock and only then as part of an acquisition or merger, including any reorganization or reincorporation. Any transfer other transfer may result in the immediate termination of this Agreement, unless consented to in writing by Company. Publisher acknowledges and agrees that Company may transfer its rights to the Company Network without restriction to any third party at any time, in which event this Agreement will remain in full force and effect. 12.10 Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of the Agreement. 12.11 Public Statements. Any press release or other public announcement by Publisher regarding its participation in the Company Network shall require the prior approval of Company, which approval shall not be unreasonably withheld. 12.12 Notice. With the exception of notice required under section 6.3 above, all other notices, requests, demands, and other communications to Company relating to this Agreement 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, or delivered personally, to the following address (or other address specified by like notice): If to Company: Internet Media, Inc. If to Publisher, to the address set forth in the Publisher Application. 12.13 Entire Agreement. The terms and conditions contained in this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous agreements and understandings, whether oral or written. Publisher agrees to sign a paper copy of this Agreement promptly upon request from Company, but Publisher agrees that Publisher is bound by this Agreement even if a paper copy is never signed. Faxed signatures shall be valid as originals. All rights not expressly granted by Company are reserved. This agreement was last updated on December 15, 2008. |