Epic Marketplace, Inc. (“EMP”), and Publisher, enter into this Publisher Network Agreement to establish the terms and conditions by which Publisher may enter the EMP Network and market advertisements on behalf of EMP customers. EMP and Publisher agree to be legally bound as follows:

1.  EMP Network

(a) This Publisher Network Agreement and any exhibits attached hereto (collectively, the “Terms and Conditions”), any Purchase Order(s) and addenda attached thereto (collectively, the “PO”), the EMP privacy policies located at http://www.theepicmediagroup.com/privacy, the User opt-out located at http://www.epicmarketplace.com/optout.php, the EMP website terms of use available at http://www.epicmarketplace.com/ow_tos, and such other policies and guidelines posted on the EMP website at www.epicmarketplace.com, each of which is hereby incorporated by reference and together constitute a legally binding agreement (this “Agreement”) between EMP and Publisher as Publisher identifies itself in a PO or click-though agreement (the “Publisher”) (each, a “Party” and together, the “Parties”). This Agreement shall govern Publisher’s participation in the EMP Network (the “Network”) for the placement of advertisements and graphic or text file(s) (“Ads” or “Ads”) on Publisher’s websites, web applications, emails, search engine, social media applications/games or other electronic media on which Publisher places Ads (“Media”). “Advertiser” or “Customer” means EMP and/or the advertiser or advertising agency providing Ads to EMP for use on Publisher’s Media (a “Program”).

(a) Membership. Participation in the EMP Network is subject to prior approval by EMP. EMP reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. EMP reserves the right to require a Publisher to submit detailed descriptions of the Publisher’s Media, promotional methods or technology. This Agreement is immediately voidable by EMP if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless approved by EMP, Publisher may have only one account; however, each account may include multiple types of Media. All Publishers and Sub-Publishers are obligated and bound by these Terms and Conditions. In any event, EMP reserves the right to reject or approve additional Websites or Sub-Publishers, and is under no obligation to accept any Media, even if the additional Media is the property of an already approved Publisher.

(b) Publisher Networks as Members. Any Publisher that consists of an aggregation of publishing affiliates, each of which owns or operates various Media (collectively, a "Publisher Network," representing one or more "Sub-Publishers"), hereby agrees to the following terms and conditions:

(i) Publisher shall present and EMP may approve each Sub-Publisher, which may require a specific Sub-Publisher ID; (ii) Publisher Network shall provide EMP with contact information for any Sub-Publisher within 24 hours of EMP's request. Contact information shall include, without limitation, contact name, mailing address, telephone number, and email address; (iii) Publisher Network shall report to EMP a unique sub-ID for each Sub-Publisher, which shall not be rotated, altered or reused by Publisher Network in any way; (iv) Upon request Publisher shall identify all of the precise Websites/Applications that EMP Ads is or will be displayed on, and shall immediately remove any Ads upon EMP’s request. Within 24 hours of EMP's request, Publisher Network shall remove any Sub-Publisher from EMP's and/or its Advertisers' campaign(s); (v) Publisher Network shall be responsible and liable for each Sub-Publisher's conduct and compliance under this Agreement and Publisher Network shall indemnify, defend and hold harmless EMP pursuant to Section 11 “Indemnity” for all conduct of Sub-Publishers; (vi) Publisher Network shall not utilize any Sub-Publisher that is rejected by EMP. It no event will EMP pay for traffic or services for rejected Sub-Publishers.

(vii) “Sub-Publisher” means affiliates accessing offers via Publisher’s affiliate interface. “Sub Publisher ID” shall mean an alpha-numeric identification code sufficient to identify the specific affiliate with whom the consumer signed-up. (c) EMP Services. While EMP will attempt to provide the services on a continuous basis, Publisher understands and agrees that the EMP services hereunder may be inaccessible, unavailable or inoperable for any reason, including, (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which EMP may undertake from time to time; or (iii) causes beyod the control of EMP or which are not reasonably foreseeable by EMP, 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 EMP will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that EMP has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that EMP is not responsible for the functionality of any third-party Media or interface. Terms of this Agreement are subject to EMP hardware, software, and bandwidth traffic limitations. EMP’s failure to deliver continuous services does not represent a failure to meet the obligations of this Agreement.

2.  Publisher’s Media Content and Prohibited Conduct

(a) Prohibited Conduct. EMP does not accept Media that produce, promote, relate to or have characteristics of Prohibited Conduct. “Prohibited Conduct” is defined as the following:

Publisher shall not: (1) modify banner Ads or utilize any Ads that was not provided by EMP (2) place Ads on non-approved Media, or in such a fashion that may be misleading or deceptive to the person accessing Publisher’s Media (“User”); (3) incentivize or offer points, rewards, cash or prizes for any User action unless the Program is designated by EMP as incentivized ; (4) place misleading statements near an Ad (i.e., “You will win $5,000”); (5) when a User clicks on an Ad, deceptively redirect a User to Media other the Advertiser’s or present a User with Ads or offers other than those connected to the particular Advertiser; (6) serve Ads, or drive traffic to such Ads, using any downloadable software or applications without the prior written approval of EMP, which, if provided, is subject in each case to the following conditions: Ads 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 Ads at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (7) use invisible methods or auto-spawning browsers to generate Impressions, Clicks, or transactions that are fraudulent or that are not initiated by the affirmative action of the User, or requiring Users to click on an Ad before entering any area of a Media; (8) engage in any advertising via facsimile or telemarketing; or (9) engage in any advertising to telephones or portable electronic devices via SMS, Smart Messaging, EMS, MMS, or any other type of text messaging service or protocol unless pre-approved in writing; (10) violate the terms of service of, or abuse, social media Websites such as MySpace, Craigslist, Facebook, to drive traffic to Ads or Media (for purposes hereof, "Abuse" shall mean spamming, sending any unsolicited mass mailing or instant messaging, using social media Websites for commercial purposes, making any automated use of the systems, such as using scripts to send bulletins or other communications, or any other activity that violates the applicable terms of service); (11) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the tags, source codes, links, pixels, modules or other data provided by or obtained from EMP that allows EMP to measure Ad performance, assure site transparency and provide its services; (12) block, mask or alter a referring URL; (13) solicit personal information from anyone under 13, unless the Media is otherwise compliant with COPPA; (14) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devises, or providing pirated music or links to pirated music files; (15) solicit passwords or personal identifying information from consumers for commercial or unlawful purposes; or (16) engage in unlawful commercial activities, such as pyramid schemes.

(ii) Content of Approved Media. Within 24 hours of EMP's request, Publisher shall identify the precise webpage that EMP Ads is displayed on, and shall immediately remove any Ads upon EMP’s request. Publisher shall not place any Ads, pixels, EMP Code (defined as pixels, intellectual property or other computer code provided by EMP for use by Publisher) or other intellectual property made available to Publisher in connection with its performance under this Agreement (“Network IP”) on Media that contain, promote, reference or have links to: (1) web pages or on web pages with no content;; (2) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other material deemed unsuitable or harmful to the reputation of EMP and/or its Advertisers; (3) piracy (of software, videos, audio/music, books, video games, etc.) hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (4) illegal activities or advice; (5) deceptive acts or practices; (6) violations of the rights of others, such as intellectual property or privacy rights ; (7) personal web pages, non-English language pages, free hosted pages or Media under construction; (8) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivized traffic where Users have some sort of incentive to click through on Ads (“Incentivized Traffic”); or (9) activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of Spyware. “Spyware” means 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 from the User; (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 email 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 (ii) Display or Action-based programs.

3. Compliance

(a) Compliance. Publisher agrees to undertake and complete its services as specified by EMP, including all Ad placement restrictions, in accordance with this Agreement and the highest industry standards. 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 Media.

(b) Site Transparency. For the purpose of compliance and quality control, 100% transparency of sites will be required from Publisher. Publisher shall disclose and EMP shall pre-approve in writing all sites where Ads will be placed. Publisher acknowledges that EMP spiders Publsiher websites for compliance and transparency purposes and agrees not to impede EMP compliance tools. A customized or private network of publishers approved by EMP may also be an acceptable solution to transparency requirements.

(c) Redistribution of Ad Tags. EMP does not allow the brokering or redistribution of EMP ad code/tags by Publisher to any third party or site not owned and operated by Publisher. Any such distribution must be approved by EMP in writing on an individual Publisher site basis with 100% transparency only. Any violation of these terms may result in non-payment and termination from the EMP network.

(d) Flight Dates; Caps; New Creative. Publisher shall not display Ads after the specified Program start and end dates (“Flight Date”) has ended or the cap limitation has been met. Publisher also shall not run Ads using Ads that has been replaced. EMP reserves the right to pay Publisher for Ads delivered using the proper Ads and/or within the Flight Dates or cap limitations.

4. Publisher Programs

(a) Requirements. Publisher shall be solely responsible for placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement and any offer-specific terms and conditions applicable for a specific advertising campaign (“Program Terms”). Publisher also is responsible for full delivery of valid data in the requested format as specified by a EMP representative. Publisher shall only place Ads “above the fold” (if applicable) on Approved Media. All impressions/Ads must be viewable. EMP pop-under windows cannot be launched from Mediathat launches more than a total of two pop windows, including the EMP pop-under.

(b) Search. In the event that Publisher conducts Search Programs, the following terms and conditions shall apply. Publisher shall not: (1) violate guidelines of any search engines being utilized; (2) engage in search engine spam, doorway pages, cloaking, etc.; (3) bid on any trademarked terms in any PPC/“keyword”/“adword”/campaign unless given express written permission; or (4) conduct search ads falsely suggesting a link between EMP and a third-party or otherwise infringing on a third-party’s intellectual property or privacy rights.

(c) Email. In the event that Publisher conducts Email Programs, all email campaigns must be conducted in accordance with the terms of the EMP Email Guidelines set forth at the end of this Agreement.

(d) Co-Registration/Lead Generation.

(i) In the event that Publisher is hosting lead generation collection and services that consist of User’s providing personally identifiable information (“Lead”), including but not limited to co-registration or any other means , the following terms and conditions shall apply: Publisher shall (1) (a) identify on the Insertion Order all Media to be used by the Publisher for each Program and (b) transfer Leads in a secure format as specified by EMP; (2) prominently display on Publisher’s Media a privacy policy that permits the collection, use and transfer of data as contemplated by the campaign; (3) ensure that all Leads are stored in a secure manner, consistent with IAB and regulatory guidelines; (4) ensure that the Leads provided (i) meet the EMP and Advertiser campaign requirements, (ii) are not fraudulently obtained, including but not limited to modifying approved lead generation forms, publishing an offer on an unapproved site, utilizing automated software or manpower to complete lead generation or co-registration forms, incentivization of co-registration forms and/or a publisher's inability to provide the user IP and time/date stamp for each lead; (iii) comply with specific program requirements, including but not limited to complying with Program Lead caps or promoting a Program prior to EMP’s written approval of Ads and data transfer. All Leads shall be destroyed within seven (7) days after transfer to EMP/Advertiser.

(ii) EMP will only pay for unique Users that provide complete, valid information as required by an Advertiser (“Valid Sign-Up”) accepted by the Advertiser. Any data submitted that is not a Valid Sign-Up will not be paid. Upon payment, EMP shall have no further obligation to Publisher. EMP will not pay or compensate Publisher in any way for Leads, acquisitions, impressions or clicks that have been rejected by an Advertiser for any reason, including but not limited to duplicates, invalid data, incomplete data, or fraudulent data, or for leads, acquisitions, impressions or clicks that have been determined by EMP, in its sole discretion, to be duplicates, invalid, incomplete or fraudulent. In the event that Publisher has already received payment for such leads or acquisitions, EMP reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. The Unit price for Valid Sign-Ups offered to and accepted by Publisher includes compensation for such invalid data and the price for Valid Sign-Ups would otherwise be less.

(iii) EMP and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the Users 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.

5. Data

EMP exclusively owns all data generated by, or collected in connection with, the display, delivery and performance of Programs and Ads placed on Media, including, without limitation, any data pertaining to impressions, click-through rates, conversions, personally identifiable information provided by Users in response to an Ad, and any other data derived by EMP (“EMP Data”). EMP Data is considered Confidential Information pursuant to this Agreement. Without limiting the foregoing, Publisher shall not make any use of, copy, or make derivative works from EMP Data, or sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner EMP Data (including without limitation any portion thereof) to any third-party. Publisher acknowledges that in connection with serving Ads EMP receives non-personally identifiable data (e.g. IP addresses, cookie information) which shall be EMP Data, and EMP may use such non-personally identifiable data concerning individual Users of Publisher Media to help target Ads to those Users. Notwithstanding, EMP agrees to license to Publisher the right to use (i) performance statistics and amounts payable regarding the Programs operated on Publisher Media for its internal business purposes only, and (ii) performance statistics regarding the Programs operated on Publisher Media for external purposes if the information is aggregated and does not allow for the identification of EMP or Advertiser.

6. Right to Audit. 

Publisher agrees that at all times during the term of this Agreement and for one (1) year thereafter, it shall maintain accurate books and records relating to its performance under this Agreement, including books and records relating to its Sub-Publishers. Publisher agrees that EMP, or any designee of EMP, shall have the right, once per each six (6) month period, at EMP's cost and expense, to examine, inspect, audit, review and copy (an "Audit") or make extracts from all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Publisher at least five (5) business days prior to the commencement of an Audit.

7. Proprietary Rights

(a) Licenses. EMP hereby grants to Publisher a nonexclusive, nontransferable, limited, revocable license to use, execute and display the Network IP solely for the purpose of performing its obligations hereunder. Nothing in this Agreement shall be construed as EMP granting Publisher any right, title or interest in Network IP or EMP or Advertiser’s proprietary rights. Publisher acknowledges and agrees that EMP and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher’s use of the Network IP or the results created thereby, or dissemination or distribution of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher in non-payment and being held liable under applicable law.

(b) Intellectual Property Ownership. Subject to the limited licenses granted to EMP and Publisher hereunder, each party shall own and 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. Except as permitted under this Agreement, Publisher shall not alter, copy, modify, take, sell, re-use, or divulge in any manner any Ads, Network IP or computer code provided by EMP without EMP’s prior written consent. Any EMP Network IP or content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. The intellectual property rights in any approved modifications to Ads, EMP Code or Network IP shall be owned solely by EMP.

8. Representations and Warranties

(a) Mutual Warranties. Each party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) 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 this Agreement.

(b) Publisher Responsibility. The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the Ads, and that EMP will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.

(c) Publisher Warranties. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under this Agreement; (ii) it will comply with all applicable federal, state and local laws, rules and regulations including, without limitation, laws relating to advertising, the Internet, privacy, email, and unfair business practices; (iii) it will not engage in Prohibited Conduct; (iv) it will prominently display and comply with its privacy policy; (v) it will not seek to circumvent EMP and establish relationships directly with any Advertiser that Publisher became aware of through the EMP Network, while an approved EMP Publisher and for 180 days thereafter, unless a previously existing business relationship between Advertiser and Publisher can be established; (vi) Publisher is at least 18 years of age on the effective date of this Agreement; and (vii) EMP does not make any specific or implied promises as to the successful outcome of any campaigns.

9. Privacy

Privacy Requirements. Publisher shall clearly post on its Media an easy to understand privacy policy that (i) is in compliance with all FTC guidelines, NAI principles, and any other applicable laws, rules and regulations with respect to online privacy; (ii) identifies the nature and scope of the collection and use of User’s information gathered by Publisher (iii) permits Publisher to provide data to EMP for the purposes contemplated by this Agreement (iv) discloses use of cookies, web beacons and other monitoring technologies to provide custom advertisements and offers Users an opportunity to opt-out from such data collection and use via a link to http://networkadvertising.org, and (v) discloses to User’s that it may allow third parties such as EMP to monitor Publisher’s Media for the purpose of reporting Media traffic, statistics, advertisements, “click-throughs” and/or other activities, and such third parties may use cookies, web beacons and other monitoring technologies to compile anonymous statistics about Publisher’s Users. Publisher shall fully comply with the privacy policy posted on Publisher’s Media at all times.

10. Tracking and Payment

Ad Placement & Tracking. All Impressions (defined as the number of times an Ad is served to, and received by , a unique User on Publisher’s Media), Click-Throughs (defined as an activation of a hyperlink using a mouse or other input device), and actions must (a) go through EMP’s gateway; (b) be recorded by EMP’s server; and (c) include Publisher’s unique tracking code. EMP may allow Publisher to view aggregate performance statistics and estimated amounts payable for the Programs on its Media. Publisher acknowledges that EMP Data is provided for informational purposes only, is pro forma and subject to adjustments due to, among other factors, Ad serving failures, invalid clicks, statistical errors, or specific contractual agreements with Advertisers (i.e. bonus or make-goods).

(a) Payment Rate. EMP will set campaign rates as set forth in the EMP interface or an insertion order. Publishers typically will be paid on standard terms, or as agreed in an IO, following the month in which an Advertiser confirms an action/count. Publisher must invoice EMP monthly based on EMP numbers/counts and EMP may delay payment while it reconciles numbers with Advertisers. EMP may deduct for rich media and ad serving fees, and to reserve for sales returns and other non-payment by Advertisers. All accounts will be settled in US dollars (USD$). No check will be issued for any amount less than USD$100 (“Minimum Payment Threshold”). All unpaid earnings will rollover to the next pay period. As a condition to EMP’s obligation to make payments hereunder to Publisher, Publisher must (i) pass EMP’s business identity examination and (ii) have on file with EMP a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Publisher payments will be withheld until the appropriate taxation documents are received by EMP. If the required tax documents are not on file with EMP within three months of the date of a scheduled payment, EMP may charge a monthly administrative fee, representing EMP’s cost of establishing and maintaining Publisher’s account, equal to 25% of the original balance. All payments are based on numbers/counts as defined, accounted and audited by EMP. EMP and its affiliated companies may apply any payments owed to Publisher against liabilities owed by Publisher or its affiliated companies. EMP reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. EMP will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement.

(b) Chargebacks. An Advertiser or EMP may apply a debit to a Publisher’s account in an amount equal to a payment previously paid or credited to Publisher in circumstances of: (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide transactions; (iv) non-receipt of payment from, or refund of payment to, the User by the Advertiser; (v) Publisher failure to comply with Advertiser’s Program Terms or other agreement with Advertiser; or (vi) non-payment by the Advertiser to EMP ("Chargeback"). Chargebacks may be applied at any time, including previous payment cycles. EMP shall have no obligation to make payment to Publisher for which EMP has not received payment from the relevant Advertiser of all monies due to EMP (including for all amounts owed by such Advertiser to any of such Advertiser’s Publishers). Publisher’s recourse for any earned payments not paid due to Advertiser’s failure to pay EMP shall be to make a claim against the relevant Advertiser(s), and EMP disclaims any and all liability for such payment.

(c) Calculation. Calculation of Publisher earnings shall be in EMP’s sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to EMP detailing, with specificity, Publisher’s concerns. Thereafter, EMP will provide Publisher with an explanation or, if such calculation is determined by EMP to be incorrect, an adjustment. EMP’s calculations shall be final and binding.

11. Indemnity

Publisher is solely responsible for any legal liability arising out of or relating to (i) Publisher’s Media; (ii) any material to which Users can link through Publisher’s Media; and (iii) 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. Publisher shall indemnify, defend, and hold harmless EMP and its officers, directors, employees, agents, shareholders, partners, affiliates, representatives, agents and Advertisers (collectively “EMP Parties”) harmless from and against any and all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) incurred by, or imposed or asserted against, the EMP Parties which, if true, would constitute or relate to any claims, suits, or proceedings for (a) 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 Media; (b) any breach by Publisher of any duty, representation or warranty under this Agreement or Program Terms; (c) any alleged breach by EMP if it contracted to place Ads on Publisher Media and could not due to any breach by Publisher of this Agreement; (d) a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Media; or (e) negligence or misconduct by Publisher.

12. Limitations of Warranties and Liability

(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY EMP ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EMP MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. EMP IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.

(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EMP BE LIABLE TO PUBLISHER FOR LOST PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF EMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. UNDER NO CIRCUMSTANCES SHALL EMP BE RESPONSIBLE FOR ADVERTISER’S VIOLATION OF APPLICABLE LAW OR REGUALTIONS, INCLUDING BUT NOT LIMITED TO DECEPTIVE ADEVRTISING OR CAN-SPAM. IN NO EVENT SHALL EMP’S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR ONE THOUSDAND DOLLARS ($1,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST EMP MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

(c) Consideration. PUBLISHER ACKNOWLEDGES THAT EMP 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 THIS AGREEMENT 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.

13. Term and Termination

Termination. EMP reserves the right to terminate any Publisher from the EMP Network at any time, with or without cause. Publisher may terminate this Agreement with 72-hour prior written notice to EMP. Upon termination, Publisher agrees to immediately remove from its Media any and all EMP Code and Network IP supplied to Publisher by EMP. 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.

14. Confidentiality

(a) Confidentiality. Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential (“Confidential Information”). EMP’s campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Upon termination of this Agreement, or upon written request by EMP, Publisher must destroy or return to EMP any Confidential Information provided by EMP under this Agreement. Publisher further agrees that if Publisher breaches this confidentiality provision EMP will be irreparably harmed as a matter of law and will be entitled to immediate injunctive relief and its reasonable attorneys' fees incurred in enforcing this provision. The obligations of confidentiality in this provision shall not be affected by the termination of this Agreement.

(b) Non-disparagement. Publisher agrees to refrain from any disparagement, defamation, libel, or slander, or interference, tortious or otherwise, with the contracts and relationships of EMP, as well as its officers, directors and employees.

15. Choice of Law and Attorneys’ Fees

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 or Federal courts in Los Angeles, California. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. If EMP is required to file suit to enforce this Agreement it will be entitled to recover its reasonable attorneys’ fees and costs.

16. Entire Agreement and Modification

This Agreement together with applicable Program Terms, supersedes all prior agreements or understandings between the parties and 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 initialed by both parties. This Agreement shall supersede all prior agreements, including any click-through agreements that EMP may be required to agree to in order to access Publisher’s system. Notwithstanding the foregoing, EMP 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 days prior to the effective date of such Change. Publisher’s continued use of the EMP 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.

17. Notice

Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for EMP, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: President of Traffic Marketplace, 2141 Rosecrans Avenue, Suite 2020, El Segundo, CA 90245 USA, with a cc to the General Counsel (effective upon actual receipt); and (ii) for Publisher, at the email or physical address listed on Publisher’s account (effective upon sending).

18. Assignment

No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of EMP. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. EMP and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

19. 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.

20. Marketing

Publisher shall not release any information regarding campaigns, Ads, or Publisher’s relationship with EMP or its Customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of EMP. EMP shall have the right to refer to its work for, and relationship with, Publisher for marketing and promotional purposes, which includes use of Publisher’s trademarks and logos on EMP’s collateral, sales material and Media. No press releases or general public announcements shall be made without the mutual consent of EMP and Publisher.

21. 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.

22. Survival and Severability

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening. In the event that any provision of this 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.

23. Remedies and Waiver

The rights and remedies granted to a party under this 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.

EXHIBIT A – Email Program Guidelines

1. SPAM Policy

EMP has a strict policy against sending unsolicited commercial email (“UCE”), commonly referred to as “Spam.” Publisher warrants and represents that all email Ads delivered under this Agreement will be to permission-based subscribers who either have (i) given Publisher (or a third-party) express consent to allow Publisher to send them such email messages in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; or (ii) with whom Publisher has a prior business relationship; and the collection of such email addresses was in full compliance with all applicable laws. EMP prohibits marketing to any email addresses where a consumer has requested to “opt-out.” Any claims against EMP from recipients of the email Ads that such email Ads constitute UCE will be directed to Publisher and Publisher will make reasonable efforts to satisfactorily resolve the issue with the recipient.

2. Email Lists

(a) All emails sent by Publisher under this Agreement shall be delivered to Email Lists owned or managed solely by Publisher. Brokering third-party deals to deliver Ads without disclosing such to EMP is strictly prohibited and grounds for immediate termination, as well as other legal remedies.

(b) Publisher shall maintain at all times during the term of this Agreement, and for a period of three years thereafter, complete and accurate subscriber sign-up/registration data for every subscriber to Publisher’s Email List(s). Publisher agrees that, within one business day of EMP’s request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Publisher sends an email Ad to: (i) subscriber email address used to sign-up/register for Publisher’s Email List; (ii) subscriber’s IP address; (3) date and time of subscriber’s sign-up/registration for Publisher’s Email List; and (iv) location (URL) of subscriber’s sign-up/registration.

(c) “Opt-in” means that the User has made an active, affirmative choice to select the Ad in question in order to be counted as a Unit. Forced, negative choice, passive, opt-out or other types of non-active, non-affirmative choice actions are not “opt-in.”

(d) “Opt-out” means that the User is required to make an active and/or affirmative choice in order to not be counted as a Unit. The Media may use a User’s collected information unless the User specifically directs the Media not to do so.

3. Campaign Preparation

(a) Prior to sending any email Ad to its subscribers under this Agreement, Publisher shall download the applicable suppression file for the campaign and "scrub" its email list against the file. Publisher shall not use any EMP or Advertiser suppression file(s) for any other purpose or permit, through act or omission, its Sub-Publishers to do so.

4. Additional Publisher Warranties

Publisher (and its Sub-Publisher’s) represents and warrants that: (i) it shall comply with all applicable international, federal, state, and local laws, rules and regulations governing commercial email, including but not limited to the CAN-SPAM Act of 2003, the California Business and Professions Code, §§ 17529 et seq., and any applicable state registry laws, such as the Michigan Children's Protection Registry (https://www.protectmichild.com/senders/) and the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html); (ii) it shall use only approved email Ads and subject lines available made available by EMP. ; (iii) any and all email Ads sent by Publisher shall include: (1) a clear and conspicuous identification that the message is an advertisement; (2) a functioning return electronic mail address; (3) a clear and conspicuous Internet-based opt-out mechanism for the Advertiser and Publisher that function for at least 30 days after the transmission of the message; and (4) valid physical postal addresses for the Advertiser and Publisher; (iv) it shall allow Users to opt-out without requiring payment, information beyond a User's email address or any other obligation as a condition for accepting or honoring a User's opt-out request, including but not limited to requiring a User to visit more than a single Internet Web page, and it shall honor all opt-out requests within forty-eight consecutive hours of receipt; (v) it shall not sell, lease, exchange, or otherwise transfer or release any email address for which Publisher has received an opt-out request; (vi) it shall not send any email Ads with false, deceptive or misleading header information (source, destination and routing information), subject lines or from lines; (vii) it shall accurately identify Publisher as the initiator of the email in the "from" line. Publisher shall not, for example: (1) use a brand name in the from line; (2) use a celebrity’s name in the from line; (3) send email "from" individuals that do not exist or are not actually involved in sending the email; or (4) send, or otherwise indicate an email is "from," a group or department that does not exist; (viii) all mailing domains shall be publicly registered. Publisher shall provide the WHOIS database the accurate name and physical postal address of Publisher, such that the domain name in the "from" and "reply-to" headers of each email identify Publisher via a WHOIS database search. Publisher shall not use WHOIS Guard or a similar technology which masks the identity of a sender, in connection with its performance of this Agreement; (ix) it shall not pre-date or post-date emails; (x) it shall scrub its email list against the list of wireless domains found at http://www.fcc.gov/cgb/policy/DomainNameDownload.html at least once every 30 days; (xi) it shall only send to United States email addresses for which a message to such address would not constitute a mobile service message as defined by the CAN-SPAM Act of 2003; and (xii) it shall not send any Ads via newsletters or other emails having multiple Advertisers.

 

Effective Date: December 1, 2009