AGAMI MEDIA PUBLISHER AGREEMENT

THIS PUBLISHER AFFILIATION AGREEMENT ("Agreement") is entered into by and between Agami Media LLC, a California Limited Liability Company - a non-exclusive, online, performance-based marketing network ("Agami Media", "AgamiMedia.com" or "Company"), and you - any corporate or individual entity owning, either directly or indirectly, the referring URL of each Publisher, which can be defined as a web site, email or search engine marketer or other distributor of advertising ("Publisher", "You" or "Your"), also referred to herein jointly as the Parties ("Parties", each a "Party").

The Agreement sets forth the Parties' respective rights and obligations with respect to Your participation in the Agami Media Publisher Network.

By submitting Your Publisher Application, You are affirmatively stating that You have read and understand all clauses of the Agreement and You are accepting the Agreement as it is.

OVERVIEW

As a member of the Agami Media Publisher Network You will receive compensation for promoting Campaigns sponsored by Agami Media and our partners according to the terms of this Agreement and the individual Campaign Terms (or "Campaign Description").

A Campaign is a combination of Creatives (text, banners, etc.), Publisher specific links/tags, and Campaign Terms. Campaign Terms determine the acceptable ways to promote the Campaign, the Events upon occurrence of which You receive compensation and the compensation amount, among other things.
This Publisher Agreement supplements all Campaign Terms subsequently agreed to by the Publisher through use of the links. Terms not defined in this Publisher Agreement shall have the meanings set forth in the Campaign Terms. In cases of contradictions between the Publisher Agreement and the Campaign Terms, the Campaign Terms should be followed.

To start promoting a Campaign You have to copy the links/tags created specifically for You and use them in Your Media (web site(s), emails, etc.).
By starting to promote a Campaign You acknowledge that You have read the Campaign Terms, if such exist, that You accept and will adhere to these terms. Company may change a Campaign at any time unless otherwise specified upon reasonable notice to You. A notice that appears on the Company site after you log in to your account is considered to be reasonable. Some Campaigns may require that You receive approval by the Campaign Sponsor prior to starting to promote the Campaign. Company reserves the right, in its sole and absolute discretion, to terminate a Campaign and remove any advertisements at any time for any reason, upon reasonable notice to You.

Company shall provide You with access to active Campaigns, shall administer Campaigns, shall track Your promotional activities and determine Your compensation amount.

1. Application

In order to become a member of the Agami Media Publisher Network You have to meet our Eligibility Requirements, submit a valid Publisher Application and be approved by Company. After being approved by Company You will be licensed to promote Campaigns sponsored by the Company or our partners.

1.1. Minimum Eligibility Requirements

1. Publisher websites must be content-based, not simply a list of links or advertisements;
2. Publisher websites must have a top-level domain name and valid WHOIS information. No free hosted sites (using Geocities, Xoom, Tripod, Talk City, and similar free hosting services) will be accepted;
3. Publisher websites must be fully functional at all levels; no "under construction" sites or sections;
4. Publisher websites must not contain, promote or have links to any illegal activities or such generally understood as Internet abuse, including but not limited to profanity, sexually explicit or hate materials, violence, any discrimination, software piracy or violations of the intellectual property rights of others or any other materials deemed unsuitable or harmful to the reputation of the Company;
5. Publisher websites must contain primarily English language content;
6. Publisher websites must not contain more than one pop advertisement per page (pop-up, pop-under or pop-exit);
7. Publisher websites must not be promoted through the use of unsolicited bulk email, or allow website members or customers to engage in similar activities through Publisher's Web Site. Websites should not be included in any major spam blacklists.

1. 2. Publisher Application

You have to be at least 18 years old in order to become a Publisher.

In order to apply for membership in the Agami Media Publisher Network, You should submit the required registration information by which You affirmatively state that You have read and understand all the terms and conditions set forth in this Agreement and that You accept those terms and conditions. You warrant that all the information provided in the Publisher Application form is true and accurate. Agami Media will not be responsible for lost payments or communication due to Your failure to provide us with valid contact information as reasonably necessary. If a Publisher Application form is not properly completed, Company reserves the right not to approve the application.

1.3. Publisher Approval

Agami Media will thoroughly review every Publisher Application for its eligibility to enter our Publisher Network and will inform Publisher about its decision within reasonable term. Agami Media reserves the right to refuse any Publisher Application for any reason.

Upon approval of a properly completed Publisher Application, the Company will grant Publisher access to a Publisher account on Company website (s) where Publisher can obtain information such as Campaign Terms, Creatives, Links, and Statistics.

For the purposes of this Agreement, Company's approval of a Publisher Application shall in all cases be evidenced by an e-mail clearly communicating Company's approval ("Approval E-mail") and also containing Publisher account information and further instructions for Publisher regarding participation in the Company Network.

1.4. License

At the agreed to Campaign Terms and provided that Publisher complies with all provisions of this Agreement, Company hereby grants to Publisher a nonexclusive, limited, revocable, non-transferable license to (a) market, display, perform, copy, transmit, and promote the Campaigns subject to the terms of this Agreement and the Campaign Terms; and (b) use the AgamiMedia.com site subject to the terms of this Agreement and the Campaign Terms. You acknowledge and agree that You do not have, nor will claim any right, title or interest in the AgamiMedia.com software, applications, data, methods of doing business or any elements thereof. You may only access the AgamiMedia.com site via web browser, email or in a manner approved by Company. Your use of the AgamiMedia.com site or individual Campaigns in violation of this Agreement is strictly forbidden and will result in immediate cancellation of the above described limited license and may further result in Publisher being held liable under applicable law.

2. Rules and Regulations

In addition to the Campaign Terms, if any, and if no contradiction exists between those Campaign Terms the following Rules and Regulations, the latter shall be followed at all times:

1. You must use the Creatives (text, banners, etc.) and links/tags as they are and not change them in any way without Company's prior express written permission;
2. Offering incentives to users in order to enhance the performance of any Campaign is prohibited, if not approved in writing by Company. Incentives include but are not limited to awarding users with cash, points, prizes, contest entries, etc. If You receive approval from Agami Media to offer incentives, you should only use non-personally identifiable Member Ids in order to track member activities and reward members;
3. You should not offer incentives to users to click on ads or place statements near the Creatives requesting that Users "click" on the ad (i.e., "Please "click here") or "visit" the sponsor (i.e., "Please visit our sponsor."); nor place misleading statements near the Creatives (i.e., "You will win $5,000.");
4. You may not place Campaigns on domains or use email lists or other Media different than the ones listed in the Publisher Application form or subsequently approved by Company in writing. Publisher must immediately notify Company in writing of any material changes to approved Media content.
5. You may not resell Campaigns to third parties without written approval by Company.
6. Traffic and Events must come from countries relevant to the Campaigns as defined in the Campaign Description. We monitor IP source and reserve the right to refuse payment for Events coming from countries different than the ones specified in the Campaign Description. This means Campaigns targeted to English-speaking audience must be delivered to English-speaking countries. Campaigns targeted to US only audience must be delivered to US residents, and so forth (i.e., Events coming from China for USA only Campaigns may not result in payment).
7. You have to regularly update Your account information. Agami Media is not responsible for any lost payments or communication due to Your failure to update its member account information;
8. Publishers shall not use trademarked terms to promote Campaigns (through search engine marketing or otherwise);
9. E-mail Publishers must comply with the following E-mail Marketing Rules:

• You shall only deliver email Campaigns to 100% permission based email lists. At all times during Your participation in the Agami Media Publisher Network and two (2) years after any termination from the Network You shall keep and, if requested by Agami Media, be able (within 48 hours) to supply the following subscriber sign-up/registration data for any email address that You have sent an email to promote a Campaign: (1) subscriber email address used to sign-up/register for Your Email List, (2) subscriber's IP address, (3) date and time of subscriber's sign-up/registration for Your Email List, and (4) location of subscriber's sign-up/registration (i.e., what is the original source of the subscriber email address; where did they sign-up/register for Your Email List).
• You are prohibited from sending e-mails to consumers on behalf of anybody else but Publisher. Using any other name in the "From" name or address, or otherwise creating the impression that the emails are sent from anybody else but Publisher, specifically but not limited to Agami Media and the Campaign Sponsor, is a violation of this Agreement;
• You shall only use Subject Lines and email Creatives approved by Agami Media. Approved Subject Lines and email Creatives for each Campaign are available in the respective Campaign Terms and/or as Campaign Creatives. In order to use other Subject Lines or email Creatives, you shall obtain prior written approval by Company;
• You are solely responsible for all consumer complaints relating to e-mail Campaigns conducted you. You shall respond to all consumer complaints in a timely fashion and shall immediately remove from your list any person who makes such request for removal;
• You shall honor and abide by any "Do Not Send" list(s) provided by Company's Campaign Sponsors, and shall suppress such Campaign Sponsors' "Do Not Send" list(s) against Your mailing list before sending any email Campaigns;
• You represent and warrant that you are and will be current and in compliance with all Federal, State, and Local laws applicable to email marketing, and that you have read and accept Company's Anti-Spam Policy, which is an integral part of this Agreement.

Failure to comply with any of the rules and regulations set above may result in Publisher account termination, loss of commissions earned, and legal action against Publisher.

3. Fraudulent Activity

Agami Media actively monitors traffic for fraud. If fraud is detected, Publisher's account will be made inactive pending further investigation. It is Publisher's responsibility to prove that it is not committing fraud. Publisher accounts are flagged that:

1. Have click-through rates that are much higher than industry averages and where solid justification is not evident to the reasonable satisfaction of Agami Media;
2. Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
3. Have shown fraudulent leads as determined by the Sponsors;
4. Have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of Agami Media; 
5. Use fake redirects, automated software, and/or fraud to generate Events from the Campaigns and/or steel other Publishers' commissions by replacing or modifying Publisher tracking codes/cookies.

If Publisher fraudulently adds Events (through pre-population of forms, use of Media not explicitly approved by Agami Media in writing, or use of other mechanisms not approved by the Company), as determined solely by Agami Media, Publisher may forfeit its entire commission for all Campaigns and its account may be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Agami Media reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher. If Publisher is notified that fraudulent activities may be occurring on its Website, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to Agami Media, Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities.

4. Tracking and Payment

Agami Media shall track Your promotional activities on an ongoing basis. You understand and agree that online statistics may not be final and that Agami Media may make adjustments to your online statistics at the end of each calendar month/beginning of next month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors. Any tracking questions or disputes shall be submitted to Company in writing within 7 business days of the date the figures have been posted on the AgamiMedia.com site.

All payments are based on actual figures as defined, accounted and audited by Campaign Sponsors on monthly basis. Company will facilitate payment by disbursing the payments earned to individual Publishers upon receipt of payment from Campaign Sponsors. Company will use commercially reasonable efforts to collect payments due from Campaign Sponsors on time. In the event that Company fails to receive payment due for a specific Campaign by the Campaign Sponsor, Company shall have no payment obligations towards Publishers who have promoted the Campaign.

Company reserves the right not to pay or reduce the amount owed to any Publisher who violates any of the terms of this Agreement or the individual Campaign Terms as determined solely by Company.

You must provide valid tax identification information. Agami Media assumes no responsibility for paying income taxes on Your behalf. By participating in the Agami Media Publisher Network, You assume complete and sole responsibility for any taxes owed as a consequence of participation in the Network. Publishers residing in the United States have to provide valid taxpayer identification number (TIN). The TIN will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Agami Media may withhold payment from any Publisher that does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Agami Media's sole and absolute discretion.

Payment will be owed to You on terms of NET 30 EOM (end of month). All accounts will be paid in US dollars ($US). No checks will be issued for any amount less than $50 US Dollars. All unpaid earnings will roll over to the next pay period.

5. Term and Termination

This Agreement shall commence upon Publisher approval and remain in effect until terminated. Either Party can terminate the Agreement upon five (5) days' advance written notice by email. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party.

All earned commissions in excess of $50 will be paid to the Publisher during the next billing cycle, except from the cases of breach of this Agreement or Campaign Terms as determined solely by Company.

The representations, warranties and obligations contained in paragraphs 8, 9, 10, 11, 12, and 13 shall remain in full force and effect after termination of this Agreement.

In case Company suspects that a Publisher has violated the Agreement or Campaign Terms, Company reserves the right to terminate Publisher's access to the Site at any time without notice until the matter is resolved.

6. Representations and Warranties

Each Party represents and warrants that:

1. It has the right to enter into and fully perform its rights and obligations under this Agreement;
2. It owns or has the legal right to use and distribute all content, copyrighted material, products, and services on its Media;
3. Its Media do not contain, promote or have links to any illegal activities or such generally understood as Internet abuse, including but not limited to profanity, sexually explicit or hate materials, violence, any discrimination, software piracy or violations of the intellectual property rights of others;
4. It is currently in compliance with all applicable laws and regulations and it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.

7. Remedy

Company reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates the terms or breaches the representations and warranties set forth in this Agreement, violates individual Campaign Terms, or commits fraudulent activity against Company.

8. Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL AGAMI MEDIA'S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO PUBLISHER BY AGAMI MEDIA UNDER THIS AGREEMENT. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST AGAMI MEDIA MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.

9. No Additional Warranties

THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON "AS IS" BASIS. YOU USE THE SITE AND RUN CAMPAIGNS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), 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 REPRESENT OR WARRANT THAT THE INFORMATION ON THIS SITE OR PROVIDED BY COMPANY IS ACCURATE, COMPLETE OR CURRENT. 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.

10. Indemnity

Publisher shall indemnify, defend and hold Company (and its officers, directors, agents, affiliates, employees and third party advertisers) harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of Publisher's: (a) infringement of any third party right, or violation of any law, rule or regulation in connection with Publisher's Media (except for Creatives supplied by Company, unless such Creatives were modified by Publisher without the express written consent of Company); (b) breach or violation of this Agreement or Campaign Terms or any other agreement with Company; (c) use of contaminated files, viruses, worms, or Trojans. Company shall indemnify, defend and hold Publisher harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Publisher's use of Company's Creatives provided in connection with operating a Campaign (unless such Creatives were modified by Publisher without the express written consent of Company).

Any claim for indemnification hereunder shall be subject to the following provisions: (a) the indemnifying party shall be given 15 day advance written notice of the claim; (b) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim; and (c) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel.

11. Confidentiality

Publisher acknowledges that in order to provide services under this Agreement, Company may be required to disclose to Publisher certain proprietary or confidential information (collectively "Confidential Information") such as: (a) All information relating to your participation in the Agami Media Network, including, but not limited to your unique user name and password, the identities of Company clients, commission rates and pricing strategies, any and all calculations of amounts paid to You hereunder and the number of sales, leads, or customers delivered by You for Company's clients. (b) Any other trade secrets, business plans, strategies, methods and/or practices of the Company; (c) computer systems architecture and network configurations (d) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (e) any and all email addresses on Campaign Sponsors' "Do Not Send" list(s) provided for purposes of suppressing against Publisher's Email List(s); (f) any other information relating to Company that is not generally known to the public; and (g) any and all analyses, compilations, studies, notes or other materials prepared which contain or are based on Confidential Information received from Company.

You acknowledge and agree that all Confidential Information is property of Agami Media and shall be held in strictest confidence by You and will not, without the written consent of Company, be disclosed to any other person, in any manner whatsoever, in whole or in part, and will not be used by You directly or indirectly for any purpose not permitted under this Agreement.

The foregoing obligations shall not apply where Confidential Information: (a) must be disclosed by Publisher to comply with any requirement of law or court order (provided that Publisher notifies Company of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to the Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher's written records; or (c) is known or generally available to the public through no act or omission of Publisher or its representatives in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party. Publisher shall promptly reimburse, indemnify and hold harmless Company, its representatives and other persons acting on its behalf, from and against any damage, loss or expense incurred as a result of the breach of this Agreement's Confidentiality clause.  

12. Non-Solicitation

Publisher agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any Campaign Sponsor that is known to Publisher to be a partner of Company, for purposes of offering products or services that are competitive with Company's products and services (including the provision of advertising inventory) nor contact such Campaign Sponsors for any purpose, during the term of Publisher's membership in the Network and for the 30-day period following termination of Publisher's membership in the Network, provided however, that the foregoing restriction shall not apply to Campaign Sponsors with whom Publisher already has a relationship prior to the placement of Campaigns on Publisher's Media on behalf of such Campaign Sponsors through Company, as explicitly proven by documented evidence of such prior relationship provided by Publisher to Company immediately upon Company's written request.

13. General

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;

1. 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 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 Campaign(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;
2. Independent Contractors. The Parties to the Agreement are independent contractors. Neither Party is an agent, representative, partner, employee, or joint venture 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. The 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 part;
3. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect 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;
4. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of The United States of America and the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the Parties;
5. Dispute Resolution. In the event of disputes both parties shall first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) can not be resolved through good faith negotiation, the parties shall refer to a mutually acceptable mediator for hearing in San Francisco, CA. In the event that mediation can not resolve the dispute(s) it shall be brought for resolution through a binding arbitration by a single arbitrator. The arbitration shall be held in San Francisco, CA, and the decision reached by such arbitrator shall be entered as a judgment in any court of competent jurisdiction. The prevailing party in any dispute between the Parties arising from this Agreement shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with such dispute;
6. Assignment. Neither Party to this Agreement shall sell, transfer, or assign this Agreement or the rights or obligations hereunder, other than to a parent or wholly-owned subsidiary, without the prior written consent of the other Party.

This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein and supercedes all prior agreements, whether through officers, directors, salespersons, employees or consultants.

This Agreement can be changed any time in the sole discretion of the Company with or without notice. The latest version of the Agreement will be available for review on the AgamiMedia.com site. Changes and modifications will be considered accepted from the Publisher if Publisher continues to use the services and products of the Company after the changes have been posted to the site.