Terms & Conditions
STANDARD PUBLISHER TERMS AND CONDITIONS These Standard Publisher Terms and Conditions Service Agreement, by and between FizzyLabs Corporation, located at 8141 Nuzum Rd. Brooksville FL 34613, and Publisher located at (Address Above), shall govern the relationship between you and Company using the advertising service offered via Company's network. For purposes of the Agreement Publisher includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Company to use the advertising service. Company and Publisher are each referred to herein as a Party and collectively as the Parties. In the event of a conflict between any terms of an Insertion Order and this Agreement, this Agreement shall govern except where the specific section of this Agreement referenced for modification and the IO is signed by an authorized representative of Company. We operate in the field of performance-based advertising. At the request of our customers, who are advertisers, we target specific user groups, via third party websites and media, in order to promote to them certain services or goods online. The Company recognizes the importance of protecting the privacy of individuals and their personal information. This privacy policy applies to personal information collected by us. We are bound by Scotland Privacy Principles in the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) (the Act), which governs the way private sector organizations collect, use, keep secure and disclose personal information. Where and to the extent that we use personal information in relation to data subjects (individuals) located in the European Union (EU), in the context of the offering of services to them or the monitoring of their behavior as far as their behavior takes place within the EU, we are bound by the EU General Data Protection Regulation (EU Regulation 2016/679) (the GDPR). Under the GDPR, we are a controller for your personal information. We have appointed Appenture d.o.o. as our representative in the EU for the purposes of GDPR compliance. The privacy policy provides information in relation to: how and when the Company collects personal information; how the Company uses and discloses personal information; how the Company keeps personal information secure, accurate and up-to-date; how an individual can access and correct their personal information, and the other rights an individual has in relation to our processing of its personal information; and how the Company will facilitate or resolve a privacy complaint. We recommend you read and consider this privacy policy carefully before navigating the Company’s website www.cosmicgroup.mobi (the Website) or using any services, websites or platforms provided by or supported by the Company, as indicated. YOU MUST BE AT LEAST EIGHTEEN (18) YEARS OLD TO REGISTER AS A PUBLISHER. Any registration by anyone under the age of eighteen (18) is unauthorized, unlicensed and in violation of this Agreement. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal authority to bind such business entity to this Agreement. Your assent to the terms, representations and warranties contained within this Agreement creates a legally binding and enforceable contract between you and Company. If you do not agree to this Agreement, in its entirety, you are not authorized to register as a Publisher or use the advertising service in any manner, whatsoever. 1. Network and Campaign Materials. 1.1 Network. Company’s advertising network provides Publishers the opportunity to earn commissions by participating in advertising campaigns made available by Company’s network of third party advertising clientele (each, a Client or Clients. Company reserves the right, in its sole discretion, to reject your registration application or terminate your access to the advertising service at any time, with or without reason. 1.2 Campaign Materials. Company and/or Clients within Company’s network (by and through Company), will provide Publisher with all campaign creative materials including, but not limited to, all content, text, banners, newsletters, photography and video Campaign Materials. Publisher expressly agrees to use and distribute the Campaign Materials exactly as provided and shall not alter the Campaign Materials. Publisher may not add, subtract or in any way alter, edit, or modify any Campaign Materials, nor may Publisher make any use whatsoever of any Campaign Materials other than for the purposes of, and as contemplated by, this Agreement. Should Publisher wish to use different Campaign Materials, the former shall obtain prior written approval. Placement and positioning of Campaign Materials and creative content may be set forth in this Agreement and/or the applicable IO. No Campaign Materials may be published in violation of this Agreement or any applicable IO. Publisher expressly agrees that it shall not place Campaign Materials on any properties or media that are directed to individuals less than eighteen (18) years of age. Publisher agrees to review the availability of Campaign Materials that it has placed within its media, no less than daily. It is Publishers sole responsibility to change Campaign Materials within its media when such Campaign Materials are no longer available on Company’s advertising network. Company assumes no responsibility whatsoever to notify Publisher when specific Campaign Materials are no longer available via Company’s advertising network. 1.3 Ownership of Data. With the exception of Publishers own consumer data lists, all consumer data, including but not limited to campaign results, user data, statistical information, traffic analyses or other data produced or provided by Publisher and/or derived from use of Campaign Materials shall be deemed to be the property and Confidential Information of Company. Publisher is, therefore, expressly precluded from assigning or otherwise transferring any interest in such Data. Any such transfer or assignment shall be treated as thought it was invalid from the outset. 2. Insertion Orders. 2.1 Insertion Order Incorporation. From time to time, the Parties may (but are not obligated to) negotiate and execute IOs under which Publisher will deliver advertisements to consumers for and on behalf of Company’s Clients. Each Insertion Order shall constitute a separate contract between the Parties, which contract shall be deemed to incorporate and include the terms and conditions set forth in this Agreement. For the purposes of each such contract, the term Agreement shall refer both to the terms and conditions set forth herein and the additional terms and conditions set forth in the applicable Insertion Order. 3. Compensation and Payment Terms. 3.1 Publisher shall be paid by Company in accordance with one of the payment plans/models enumerated at sub-sections 3.2 through, below. A Compensate Transaction shall be defined, as applicable and without limitation, as one that: (a) is completed by a natural person located within the United States for purposes of potentially engaging in further action at the destination landing page or website, and not a computer generated user, such as a robot, spider, computer script or other automated, artificial, machine driven or fraudulent method designed to appear like an individual, live person; (b) meets pre-defined criteria and completes relevant, valid data fields; (c) is conducted at or from the URL provided to Publisher by Company for tracking purposes; (d) has been taken by a live person that is at least eighteen (18) years of age; and (e) Company does not reasonably believe was generated and/or earned by fraudulent means. Publisher shall only be due commissions for Compensable Transactions. 3.2 Cost Per Action or Cost Per Lead: Company will pay Publisher a fee at the designated rate transaction generated by Publisher during the course of each campaign, subject to any payment caps. Transactions may include, but are not limited to, leads, sales, registrations, acquisitions, downloads and offer completions. 3.3 Cost Per Click: Company will pay Publisher a fee at the specified rate for each click-through generated by Publisher and accepted by Clients as a converting click during the course of each campaign, subject to any payment caps. 3.4 Cost-Per-Thousand ("CPM"): Company will pay Publisher a fee at the specified rate for every one thousand (1,000) impressions viewed by an end-user and delivered by Publisher during the course of each campaign, subject to any payment caps. 3.5 Publisher expressly acknowledges that it shall be paid for Compensable Transactions verified by Company approximately thirty (30) days after the last day of a given calendar month the Company receives payments from the Client for Compensable Transactions realized in that month, less any taxes required to be withheld under applicable law. Payments will be made in United States Dollars. Company reserves the right to revise payout terms, in its sole discretion. Company is under no obligation to pay Publisher in the event that payment is not received from a Client and/or where a Client has not remitted sufficient payments to cover commissions otherwise due and owing Publisher. Any and all payments to Publisher shall be made by Company to you out of funds actually collected by Company from Clients. Publishers sole remedy shall be to pursue any and all legal remedies directly against any Client 3.6 No payments will be issued to Publisher for any amounts otherwise due Publisher that total less than Fifty Dollars ($50.00). The threshold for Publishers located outside of the United States is One Hundred Dollars ($100.00). All affiliate payments are based upon the stats recorded in Network and are generated automatically as long as the affiliate has submitted a completed W-9/W-8. Upon termination of the Agreement, all legitimate payments due to Publisher that are actually collected from the applicable Client shall be remitted during the next billing cycle. Each Publisher account must have a unique, valid taxpayer identification number, a valid Social Security Number or other applicable unique government identification. Publisher shall provide Company with a W-9 and similar such information as a condition to payment. Publisher shall be responsible for the payment of all taxes and duties, if any, assessed in connection with payments made hereunder. 3.7 Company may, or a Client may request that Company, debit from payments otherwise due and owing Publisher in an amount equal to a payment previously credited to Publisher where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are actions that do not comply fully with the terms of the Agreement; (d) there is non-receipt of payment from, or refund of payment to, the customer; or (e) there is any failure on the part of Publisher to comply with the Agreement. The foregoing may be applied by Company up to 60 days after the end of the month in which the applicable commission was earned. The number or amount of Compensable Transactions, credits for payments and debits shall be calculated by Company and be final and binding on Publisher. 3.8 Company may, at its sole discretion, elect to advance commissions prior to those commissions having been earned. You acknowledge and agree that your receipt of commission payments prior to those payments having been earned is conditional and subject to Company’s right to demand return of unearned commissions. 3.9 Company monitors all activities on and via its advertising network for objective indicia of fraud. All incentive-based websites are subject to strict anti-fraud policies and require a thorough evaluation prior to approval. In the event that Company suspects that a Publisher account has been/is being used in a fraudulent manner, the account will be deactivated effective immediately and with no prior notice, pending further investigation. Company reserves the sole and exclusive right to determine the existence of fraudulent activity and Publisher agrees to be bound by such determinations. In the event of such a determination, Publisher shall forfeit all of right to respective payment unless Publisher can submit satisfactory evidence demonstrating otherwise within 3 days of first being notified thereof. In the absence of such evidence, Company reserves the right to cancel applicable payment, with no further obligation to Publisher if valid reports are provided within a timely manner. These terms supersede any and all other terms and conditions. 4. Tracking. 4.1 Data compiled by Company including, but not limited to, numbers and calculations regarding all transactions, including Compensable Transaction, shall be directly and/or indirectly calculated by Company through the use of industry standard tracking technology and shall be final and binding on Publisher. Any disputes regarding data provided by Company must be received by Company in writing within 3 days of data availability. Publishers failure to timely dispute such numbers shall be considered an irrevocable waiver and Company’s calculations shall then be final and binding. 5. Representations and Warranties. 5.1 Publisher hereby acknowledges and agrees that, except as may otherwise be set forth herein, Publisher is solely responsible for the method by which the Campaign Materials are disseminated. 5.2 Publisher represents and warrants that: (a) It has the right, power, and authority to execute, deliver and perform its obligations under this Agreement; (b) It will not violate, without limitation, any local, state, federal or international laws, rules and regulations, including, without limitation, internet marketing, consumer privacy, the CAN-SPAM Act of 2003 (as amended), California Business & Professions Code 17529, the Canadian Anti-Spam Legislation, the Telephone Consumer Protection Act (as amended) and the Federal Trade Commission Act (as amended); (c) Publisher will not engage in any short messaging service, email, phone and similar telecommunication marketing campaigns in connection with this Agreement without the prior express written consent of Company; (d) Campaign Materials will only be sent or displayed to recipients who have consented to receive third party solicitations online and such consent either was provided directly to Publisher by the recipient or, if Publisher received assurance of such consent from a third party list provider, such assurance is in writing; (e) Campaign Materials will be in English, purely content-based and receive a minimum of 5,000 unique page views per month; (f) It will not utilize pop-ups, pop-under or exit pop-ups (g) Your website is fully functional at all times and at all levels; (h) Your website and/or Publisher emails are represented by a legitimate second-level domain name; (i) Your Publisher website features, at a minimum, a privacy policy linked conspicuously from the Home page, with a link that contains explicit language indicating its presence (you shall notify Company in writing at least three (3) business days in advance of any changes to any applicable privacy policy and shall provide Company with a revised copy of the affected privacy policy prior to the date that the changes take effect); (j) You will not, nor knowingly permit any person to, inflate the amount of Compensable Transactions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods; (k) You will not use, nor knowingly permit any person or entity to use, any third-party trademarks in any way to direct traffic to any Publisher website or Company client website including, but not limited to, purchasing keywords from a search engine service provider that include the trademark, service mark and/or brand name, or any derivative of any such trademark, service mark or brand name; (l) You will not redirect traffic to a website other than the website specifically listed by the applicable Client; (m) You will not display Campaign Materials on or through adware, spyware or drive-by download applications; (n) You will not modify the Campaign Materials without prior express written consent of Company; (o) You will terminate and/or exclude from your network any Sub-Publisher hat you have a reasonable basis to believe has violated the terms of this Agreement; (q) You will not attempt to generate, or generate, any traffic from Craigslist or similar websites; and (q) The content of your website and, without limitation, your Publisher newsletter and emails, do not promote, advocate, facilitate or otherwise include any of the following: (i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements you make are endorsed by Company and/or a Company advertiser client, without Company’s prior written consent; (ix) promotion of illegal substances or activities; (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating; (xiii) malicious hacking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements spam ware, services that send unsolicited advertisements, programs designed to initiate denial of service attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; or (xx) any material that violates CAN-SPAM, or any illegal activity whatsoever (including, but not limited to, any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other jurisdiction in which Publisher operates). 5.3 Company represents and warrants that: (a) It has the right, power, and authority to execute, deliver and perform their respective obligations under this Agreement; and (b) Campaign Materials comply with all applicable laws, rules and regulations and do not violate any intellectual property right of any third party. 5.4 A violation of this section shall be considered a material breach of this Agreement, entitling Company to immediately, without liability and without prior notice, terminate this Agreement and any/all IOs, withhold all payments to Publisher and to pursue all available legal and equitable remedies. 5.5 All representations and warranties contained in this Agreement shall survive expiration or termination of this Agreement for any cause or without cause. 6. Email Marketing Compliance. 6.1 Publishers engaged in commercial email expressly acknowledge that they must first obtain consumer opt-in consent to receive such communications. Publishers shall maintain applicable records that include, without limitation and as applicable, email address, opt-in date and time, IP address, first and last name, mailing address and the posted privacy policy of the source website. Publishers shall provide the foregoing records to Company within two (2) business days of request. Email addresses may not be obtained or collected via harvesting, scraping or any other automated means. 6.2 Emails may not include falsified, misleading or forged of header information, false registrations for email accounts or IP addresses used in connection with email advertisements and/or retransmissions of an email advertisement for the purpose of concealing its origin. Publisher and/or your email delivery providers are prohibited from relaying or retransmitting emails from a computer or computer network that was accessed without authorization. 6.3 All Publisher emails sent under the Agreement shall be delivered to addresses on email lists owned or managed solely by Publisher. False domain registrations, email accounts or IP addresses are prohibited. 6.4 Publishers must use Company’s approved From and Subject lines, Campaign Materials, content and text copy. Publisher must have an accurately openly registered mailing domain in the from line which can be determined through Who Is searches. Subject lines must be truthful and non-misleading. To lines must contain either the consumers email address, Undisclosed or remain blank. 6.5 Publisher must provide recipients an effective means of requesting not to receive future email advertisements. Publisher shall cause a valid physical postal address for Publisher (and/or the applicable advertiser). Within the body of the email, Publisher may include a valid physical street address associated with Company/Publisher for the purposes of receiving correspondence from consumers requesting to opt-out. 6.6 Email advertisements and/or solicitations must identify themselves as such, and do so reasonably, prominently, clearly, and conspicuously. 6.7 Publisher must include a clear and conspicuous explanation of how the recipient can opt-out of getting email in the future and provide the recipient the ability to send a reply message via a functional unsubscribe link that must remain operational for thirty (30) days from the date of the original email transmission. The notice must be crafted in a way that is easy for an ordinary person to recognize, read and understand. Publisher must honor opt-out requests promptly. Publisher must honor a recipient’s opt-out request within ten (10) business days from receipt. Once Publisher has been informed that a recipient no longer desires to receive more messages, Publisher cannot sell or transfer the email address, even in the form of a mailing list. 6.8 Publisher agrees that prior to mailing any campaign, it will download the most recent suppression file(s) for any particular campaign, and for that campaign, it will suppress all email addresses within its database that are found on such list. In addition, for any campaigns that include a domain suppression list, Publisher agrees that prior to mailing the campaign, it will download the most recent domain suppression list for any particular campaign, and for that campaign and will suppress all domains within its database found on such list. 6.9 Publisher agrees that it will download and remove the domains located on the FCC's wireless domain names list http://www.fcc.gov/cgb/policy/DomainNameDownload.html from all current data used in all mailings. Publishers further warrants that any new data that it acquires, regardless of its source, will be run against the FCC's wireless domain names list, and that domain names contained therein will be removed before sending any mailings. 7. Proprietary Rights. 7.1 Subject to the Agreement and applicable campaign terms, Company grants to Publisher a limited, non-exclusive, revocable, non-transferable (except as say set forth elsewhere herein), royalty free, worldwide license to display on, distribute through, and/or download the Campaign Materials and creative content. The use, copying, redistribution and/or publication by Publisher of any part of, without limitation, the Campaign Materials and/or creative content, including unapproved trademarks, service marks and logos, is strictly prohibited. Publisher does not acquire any ownership rights to, without limitation, the Campaign Materials and creative content. 7.2 Publisher may not use, copy, emulate, clone, rent, lease, sell, modify, de-compile, disassemble, reverse engineer or transfer any part of Company’s network or related services. Company reserves any rights not explicitly granted in the Agreement. 7.3 Violation of this section by Publisher is a material breach of this Agreement and will entitle Company to terminate this Agreement and any/all current s without liability to Publisher, withhold all payments to Publisher and to pursue any and all other remedies available at law or in equity. Publisher acknowledges that a breach of this section would cause Company irreparable harm and that Company shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs Company may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages. 8. Confidentiality. 8.1 Confidential Information means any information disclosed to Publisher by Company, either directly or indirectly, in writing, verbally, or by inspection of tangible objects, other than information that you can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to you by Company; (b) becomes publicly known and made generally available after disclosure to you by Company other than through your action or inaction; and/or (c) is in your possession, without confidentiality restrictions, at the time of disclosure by Company as shown by your files and records prior to the time of disclosure. All information relating to your participation with Company’s network and service, including but not limited to your unique publisher identification number and your login information, the identities of any advertiser within the Company’s network, click-through or impressions generated as a result of this Agreement, Company’s commission rates, program rates and pricing strategies shall be considered Confidential Information. 8.2 You shall not at any time, without the prior written consent of Company: (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (b) use any Confidential information (other than to confirm the accuracy of commission calculations); and/or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain Company’s ' personal 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. 8.3 Violation of this section by Publisher is a material breach of this Agreement and will entitle Company to terminate this Agreement and any/all current IOs without liability to Publisher, withhold all payments to Publisher and to pursue any and all other remedies available at law or in equity. Publisher acknowledges that a breach of this section would cause Company irreparable harm and that Company shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. Company may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages. 9. Sub-Publishing. 9.1 Publisher may desire to use its business partners and/or associates to fulfill the obligations or exercise the rights under a particular advertising campaign. Any of Publishers business partners or associates that participate in or perform any activities on behalf of Publisher under the Agreement shall be considered to be a Sub-Publisher Company reserves the right to review and approve or reject any and all Sub-Publishers and may revoke a prior approval of any Sub-Publisher at any time and for any reason. Sub-Publishers must meet the same criteria for approval as the Publisher as set forth in the Agreement and must comply with all the terms and conditions that are applicable to Publisher under the Agreement and the applicable Program Terms. Each Sub-Publisher shall, for purposes of this Agreement, be deemed to be an agent of Publisher and Publisher is responsible for and shall fully and unconditionally indemnify Company for any and all actions of any of its Sub-Publishers, including the payment of legal fees and costs if necessary. Any breach by your Sub-Publishers of the Agreement shall be deemed a breach by you. Further, Company may, at its sole discretion, terminate a Publisher at any time based on the actions of that Publishers Sub-Publisher(s). Once express approval of a Sub-Publisher has been granted by Company, notices to the Publisher shall be deemed notice to that Publishers approved Sub-Publisher(s). Publisher agrees that Company is under no obligation to pay a Sub-Publisher. Company further reserves the right to withhold or refuse payment to any Publisher in the event that any of its Sub-Publishers breach the Agreement. Company is not and shall not be party to any agreement between you and any Sub-Publisher. Publisher is not authorized to make any commitments on behalf of Company to any Sub-Publisher, including, but not limited, to any payment or other commitment by Company. 10. Limitation of Liability. 10.1 IN NO EVENT SHALL COMPANY BE RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST OPPORTUNITIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND REGARDLESS OF THE CAUSE OF ACTION UPON WHICH ANY SUCH CLAIM IS BASED. IN NO EVENT SHALL COMPANYS LIABILITY UNDER THIS AGREEMENT IN CONNECTION WITH ANY IO EXCEED THE FEES PAID BY COMPANY UNDER SUCH IO. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. 11. Disclaimer of Warranties. 11.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE CAMPAIGN MATERIALS, CREATIVE CONTENT, RESULTS OBTAINABLE, THIRD PARTY WEBSITES OR THE UNDERLYING SERVICE. THE CAMPAIGN MATERIALS, CREATIVE CONTENT, HYPERLINKS, COMPANYS CLIENT ADVERTISER SITES, MATERIALS PROVIDED TO PUBLISHER AND COMPANYS SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANT-ABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, COMPANY DOES NOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING COMPANYS SERVICES. THE DISCLAIMER OF WARRANTIES SET FORTH HEREIN-ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND PUBLISHER. THE CREATIVE CONTENT AND COMPANYS SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH RESTRICTIONS. SOME STATES LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT APPLY TO YOU. 12. Term and Termination. 12.1 This Agreement shall commence upon Company’s acceptance of your Publisher application and remain in effect until terminated as set forth herein. 12.2 This Agreement and any IO may be terminated by either Company or Publisher at any time, for any reason, or for no reason at all. Termination notice may be provided via e-mail and will be effective immediately. In addition, Company reserves the right, in its sole and absolute discretion, to modify or terminate an advertising campaign at any time for any reason, with no prior notice to you. 12.3 Any and all information that Publisher may provide to Company during the Publisher application process and/or the course of your participation in the advertising network service shall at all times remain the sole and exclusive property of Company. Company reserves the exclusive right to permanently delete and destroy any/all information and/or data that you may have voluntarily or involuntarily provided to Company at any time, including, without limitation, during the Publisher application process. 12.4 Immediately upon termination, all licenses granted to Publisher shall immediately terminate and Publisher will return, purge all files related to and remove any and all Campaigns Materials, Company code, hyperlinks and/or or other intellectual property made available to Publisher in connection with its performance under the Agreement from any website(s) or other media owned or operated by Publisher, and/or suspend any and all campaigns, including, but not limited to, email campaigns that have not already been sent. 12.5 The provisions of this section shall survive the expiration or earlier termination of this Agreement or any IO. 13. Indemnification. 13.1 Publisher shall defend, indemnify and hold Company and its Client advertisers, affiliates and each of their employees, officers, directors, shareholders, contractors and agents harmless from any and all liability, loss, damage, expense, claim, or cause of action, including, without limitation reasonable legal fees and expenses, arising out of a third party claim related to: (a) Publishers products or services; (b) any alteration of any Campaign Materials by Publisher or its agents or representatives or third parties acting on its behalf or under its authority or control; (c) any material breach by Publisher of any of Publishers representations, warranties or agreements contained in this Agreement; or (d) any material breach by any email list provider, broker or other third party selected by Publisher to administer advertising campaigns of any obligation imposed on Publisher or any such third party, regardless of whether or not Company shall have consented to any such relationship, by this Agreement or any incorporated IO. Company shall promptly notify Publisher in writing of any such claim but shall control the defense and settlement of any such claim at Publishers expense; provided that failure to give prompt notice will not relieve Publisher from its indemnification obligation, except in the event of undue prejudice to Publisher (e.g., liabilities that would have been avoided had prompt notice been given). Publisher shall cooperate with Company, at Publishers expense, in defending or settling such claim. Publisher may join in the defense with counsel of its choice, at its own expense. Publisher will not acquiesce to any judgment or enter into any settlement that adversely affects Company’s rights or interests without the prior written consent of Company. 14. Non-Circumvent. 14.1 Publisher shall not, during the term of this Agreement and for one (1) year thereafter, participate in any performance based advertising relationship with any third party advertising Client within Company’s network for which Publisher undertook services on behalf of Company, within the one (1) year prior to termination, unless a previously existing business relationship between such third party advertiser and Publisher can be reasonably documented. Publisher expressly acknowledges that a breach of this section would cause Company irreparable harm and that Company shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. Company may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages. Company also reserves the right to seek as monetary damages all amounts equal to what Company would otherwise have earned had you not violated this section. 15. Jurisdiction and Venue. 15.1 The Agreement shall be construed and governed by the laws of the State of Florida, without giving effect to principles of conflicts of law. Any and all disputes or controversies, whether of law or fact, of any nature whatsoever arising from or respecting the Agreement, shall be decided by arbitration by the American Arbitration Association, in accordance with the rules and regulations of that Association. Arbitration shall take place in Pasco County, Florida. Any award rendered shall be final and conclusive to the Parties and a judgment thereon may be entered in any court of competent jurisdiction. The arbitrator shall retain authority to decree any and all relief of an equitable nature including, but not limited to, such relief as a temporary restraining order, a temporary and/or a permanent injunction, and shall also be able to award damages, with or without an accounting and costs. Company shall be entitled to an award of its reasonable costs and expenses, including attorneys' fees, in any action or proceeding in connection to, arising out of, or under the Agreement. 15.2 Nothing contained in the Agreement shall be construed to limit any legal remedies available to Company. To the extent permitted by law, Publisher agrees not to bring, join or participate in any class action lawsuit as to any claim, dispute or controversy he/she may have against Company and its employees, officers, directors, members, representatives and assigns. Publisher agrees to the entry of injunctive relief to stop such a lawsuit or to remove Publisher as a participant in the suit. Publisher agrees to pay the attorneys' fees and court costs that Company incurs in seeking such relief. This provision preventing Publisher from bringing, joining or participating in class action lawsuits does not constitute a waiver of any of Publishers rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing Publisher from bringing, joining or participating in class action lawsuits is an independent agreement. 16. General. 16.1 Sever-ability and Non-Waiver. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party. 16.2 Integration. This Agreement constitutes, together with any relevant IO, the complete and entire expression of the agreement between the Parties, and supersedes any and all other agreements, whether written or verbal, between the Parties with respect thereto. 16.3 Assignment. Publisher may not assign, transfer or delegate any of Publishers rights under this Agreement except with prior written consent of Company, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in Company, at its sole discretion, immediately terminating this Agreement, without any liability to Company. Company may assign or transfer its rights to this Agreement, or any portion thereof, at its sole discretion and without restriction. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties successors and assigns. 16.4 Force Majeure. Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party. 16.5 Miscellaneous. The Parties agree that reasonable facsimiles of original writings delivered by electronic transmissions (such as by fax or as email image attachments) shall be deemed to satisfy any legal formalities requiring that instruments be made in writing. The Parties shall be deemed to have the status of independent contractors, and nothing in this Agreement shall be deemed to place the Parties in the relationship of employer-employee, principal-agent, partners or joint ventures. Any and all terms which are reasonably intended to survive cancellation, expiration or earlier termination of this Agreement, shall so survive. Publisher shall not mention or reference Company in any publicity materials, advertising or otherwise without the express written consent of Company. Any notice, communication or statement relating to this Agreement shall be in writing and shall be deemed effective: (a) upon delivery when delivered in person; (b) upon transmission when delivered by verified facsimile transmission or verified email; or (c) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the party listed in the opening paragraph of this Agreement. This Agreement and any applicable IO may be executed in counterparts by the Parties hereto. 17. Electronic Signature. Publisher acknowledges and agrees that by accessing this Agreement via, without limitation, that Publisher expressly assents to the terms hereof electronically by clicking on the checkbox, the button labeled I agree or such similar labels as may be designated by Company to accept this Agreement. Publisher acknowledges and agrees that by doing so, it is affixing its electronic signature, it is submitting a legally binding electronic signature and it is entering into a legally binding contract. Publisher acknowledges that Publishers electronic submissions constitute Publishers agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, PUBLISHER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES OFFERED BY COMPANY. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. Check this box to indicate acceptance: