Funny Fur, Inc.
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Funny Fur, Inc.
Introduction This ROIAdvantage Network Agreement (hereinafter the "Agreement") is made by and agreed to between Trackingsoft, LLC. ("TrackingSoft"), and you ("You"). As an application service provider, TrackingSoft facilitates "Performance Marketing Programs" through provision of services ("Network Service") via the Internet. A "Performance Marketing Program" (or "Program") is where a person, entity, publisher or its agent operating one or more "Web site(s)" (domain or portion of a domain within the Internet and/or subscription email list(s) ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (actions by Visitors as defined by the Advertiser) made from such Publisher's Web site or subscription emails through a click made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent) through an Internet connection ("Link") to a Web site or Web site content operated by another person or entity ("Advertiser"). The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications. 1 Relationship. As a Publisher, You agree: (a) not to mislead others; and/or (b) no to engage in spamming via UBE or UCE or scumware. (c) That beastiality sites are not allowed (d) That child pornogrophy is not allowed, and if noted, will be reported immediately to the appropriate local and federal authorities. TrackingSoft may deem Your promotional activities inappropriate and a material breach of this Agreement based upon the foregoing, and/or on reasonable Internet business standards as they may evolve. If You are in breach of this Section 1, TrackingSoft shall provide You with notice and the opportunity to cure (in accordance with Section 6.2 below), except that no opportunity to cure shall be provided if You are in breach of Section 1(b) . Any suspected fraudulent, abusive or otherwise illegal content or activity by You on Your Web site or in Your subscription emails, or that is perpetrated through use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of "Your Account" (a memo account kept by TrackingSoft on Your behalf), without prior notice by TrackingSoft and may include referral to the appropriate law enforcement agencies (as TrackingSoft deems appropriate). TrackingSoft may not review all content on Your Web site or in Your subscription emails. You shall remain solely responsible for Your Web site and subscription email content. TrackingSoft is, under no circumstances, responsible for the practices of any Advertiser or Publisher or such Advertiser or Publisher's Web site(s) and/or the content that an Advertiser makes available through the Network Service and/or the content of Publishers' subscription emails. 2.1 Linking to Advertisers. During the Term You may apply to Advertiser Programs for the opportunity to earn Payouts through running one or more Advertiser "Campaigns" (pay-per-Transaction promotions). Upon approval by the Advertiser for acceptance into its Program, You may post (and remove) Links from Your Web site or subscription emails to Advertiser's Web site or Web site content. If such Links are not dynamically updated through the Network Service, You are obligated to update Links to an Advertiser's Web site or Web site content when notified to do so in order to earn Payouts. 2.2 Use of Links to Advertisers. You may not place Links to a Advertiser's Web site or Web site content in unsolicited email and other types of spam. You must place Links to the Advertiser's Web site or Web site content such that it is unlikely that the Links will mislead the Visitor, and such that it is reasonably likely that the Links will deliver bona fide Transactions by the Visitor to Advertiser from the Link. None of Your promotional activities may infringe an Advertiser's intellectual property rights (including but not limited to trademark rights), intellectual property rights of a competitor of a Advertiser, or TrackingSoft's intellectual property rights. You shall not cause any Transactions to be made that are not in good faith. You shall be responsible for ensuring that each Sub-Publisher you recruit meets TrackingSoft's eligibility requirements (as established from time to time), is bound by and complies with Publisher duties (and where stated Sub-Publisher duties) as specified in this Agreement, and for payment of Payouts due to Sub-Publisher that shall accrue in Your Account. You shall indemnify TrackingSoft for all acts of Your Sub-Publishers without limitation. The details of a Advertiser's Program and any Campaigns shall be available through the Network Service. An Advertiser may prohibit You from receiving compensation for a Payout attributable to Transactions made directly by You or on Your behalf by Your agent by Linking to Advertiser from Your Web site or in Your subscription email. A Advertiser may permit You to serve the Advertiser's ad content and/or modify the Advertiser's Links (including but not limited to the images contained therein). For "Lead" Campaigns, the Advertiser is compensating an Publisher when a Visitor has completed an action that is defined by the Advertiser, such as completing a form or other mechanism to identify potential customers. The Advertiser shall publish on the Network Service Lead Campaign parameters, including details regarding any disqualifying Leads or Lead form content (such as multiple Lead submissions), and the components included within an individual sale Transaction that result in a Payout. Notwithstanding the preceding, no details of an Advertiser's Program may conflict with terms and conditions contained in this Agreement. TrackingSoft shall not be obligated to enforce or honor any such conflicting terms and conditions. Breach of this Section 2.2 is cause for immediate termination from an Advertiser's Program or Campaign and/or termination of this Agreement. 2.3 Termination from Advertiser's Program/Campaign. After You have been approved by an Advertiser, the Advertiser may terminate You, one of Your Web sites or subscription email lists, and/or Sub-Publisher(s) from the Advertiser's Program or a Campaign for any of the following material breaches ("Publisher Termination for Material Breach"): (a) operation of an illegal business through such Web site and/or subscription email list; (b) engaging in any illegal activity of any type, including but not limited to displaying illegal content on Your Web Site and/or in Your subscription emails or offering any illegal good or service through Your Web Site and/or subscription emails; (c) operation of a Web site or email Link to Web sites that contain or promote, any of the following content: illegal, cracking, hacking or warez, or Link to a Web site(s) that does so; (d) engaging in indiscriminate or unsolicited commercial advertising emails; (e) causing or enabling any Transactions to be made that are not in good faith; (g) breach of the licensing provisions of this Agreement; (i) breach of any other intellectual property right provision of this Agreement or other of common law intellectual property rights of Advertiser; and/or (j) diluting, blurring or tarnishing the value of Advertiser's trademarks, tradenames, and/or service marks. TrackingSoft may terminate You/Your Sub-Publisher from an Advertiser's Program or Campaign in TrackingSoft's sole discretion. 3.1 Applicable Codes and Code Maintenance. In order for TrackingSoft to record the tracking of Visitors' Transactions resulting from clicks on Advertiser Links on Your Web sites and/or subscription emailings, two types of TrackingSoft code must be included in and maintained within the Advertiser's Links: "Impression Tracking Code" and "Transaction Tracking Code" (collectively referred to as "Tracking Code"), and all Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format. You, the Advertiser or the Advertiser's agent may serve standard Ad Content. If the Advertiser has any non-standard Ad Content or Link format, these must be served by the Advertiser, You or a TrackingSoft authorized provider (contact TrackingSoft client services for verification and authority). TrackingSoft shall determine (where possible) actual Payouts that should be credited to Your Account, and alternatively apply an estimated amount of Payouts, if the Advertiser or its agent serves Advertiser's Ad Content and such Links are not functioning properly, or if Links to an Advertiser's Web site through the Network Service are not functioning properly due to the Advertiser's negligent or intentional act or omission. TrackingSoft may temporarily deactivate Your Account or terminate Your Account if You or Your agent is responsible for the improper functioning of Ad Content that You serve, or if You otherwise interfere with and/or fail to maintain the Impression Tracking Code and Transaction Tracking Code. 3.2 Network Service. Subject to Section 3.1, TrackingSoft shall provide You with access to tracking and reporting tools, and to support services. From time to time TrackingSoft may offer optional services for a fee. Fees for such optional services are at TrackingSoft's then-current published rates or as may be quoted by TrackingSoft, and are payable in advance or may be off-set against Your positive Account balance (at TrackingSoft's discretion). Tracking details regarding Visitor Transactions for all Advertisers is not available on a real-time basis and there may be reporting delays regarding Transactions for some Advertisers. TrackingSoft may make available, for fees that TrackingSoft shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service. On-line support service is available through "Help" within the members' area. Phone support is provided during the operating hours of 8am-5pm, excepting national and TrackingSoft recognized holidays (local time and local holidays are applicable at all of TrackingSoft's business offices). Your use of "Help" enables TrackingSoft to respond more quickly to Your query. 3.3 Advertiser's Payout Rate. The Advertiser shall establish through the Network Service a Payout rate for a qualifying Transaction for each of the Advertiser's Campaigns. Your Account will be credited with each Payout in accordance with the Advertiser's Campaign Payout rate for the relevant Campaign for each such Visitor action resulting directly from Links from each of Your or Your Sub-Publisher's Web sites or subscription emails to each Advertiser's Web site or Web site content. Advertisers may discontinue Campaigns or Programs, or decrease any Payout rate upon 7 days written notice with effect from the 8th day from such notice. TrackingSoft will send You a notice through the Network Service messaging system regarding each change in Payout rate(s) or Campaign or Program discontinuation. If You have a custom Payout rate or other arrangements it is the Advertiser's responsibility for notifying You through the Network Service messaging system of a change in Payout rate or discontinuation of a Campaign or Program. 3.4 Payment. If on the 20th day of the month for Publishers located in the US or Canada and on the last day of the month for Publishers located elsewhere Your Account exceeds TrackingSoft's "Minimum Balance Amount", as set by TrackingSoft from time to time (currently US$25 for Publishers located in US or Canada, and up to US$75 for Publishers located elsewhere), for Transactions reported for the previous month, TrackingSoft will issue to You any positive balance in Your Account. TrackingSoft shall have no obligation to make payment of any Payouts for which TrackingSoft has not received payment from the relevant Advertiser. If TrackingSoft elects, in its own discretion, not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not received by TrackingSoft and not paid to You shall be to make a claim against the relevant Advertiser(s) and TrackingSoft disclaims any and all liability for such payment. If Publisher has not earned a Payout for six consecutive calendar months, a dormant account fee of US$10 per month shall be applied to Publisher's Account each calendar month that Publisher's Account remains open or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Payouts earned by Publisher will not be counted as having been earned by Publisher if the Payout subsequently becomes a Charge-back or until the Charge-back period has expired (if applicable). Publisher may close its Account and terminate this Agreement upon 30 days written notice in accordance with Section 6.1. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by TrackingSoft shall be final and binding on You. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. Whenever You have a negative balance, You must immediately remit a payment to TrackingSoft in an amount sufficient to bring Your Account to a zero balance. You may make payments hereunder via check, wire transfer, or certain credit cards by phone. When payment is made by check, Your Account will not reflect payment until the check has cleared and cash has been transferred to TrackingSoft's bank account. Your positive Account balance will not accrue interest. If You have a negative balance for any period of 45 days or more, Your Account is subject to 1.5% interest per month, compounded monthly. Your Account may be deactivated for non-payment. Check Your Account page for payment instructions and foreign currency options. Your Account balance shall appear in US Dollars although a courtesy calculation of foreign currency conversion is enabled through the Network Service. Foreign currency conversion shall be provided as a convenience and is an estimate only. Payment in Your local currency may be available (consult the information that is available through Your Account). The conversion rate shall be determined in accordance with TrackingSoft's and TrackingSoft's vendor's operating standards using the rates prevailing upon the date that payment is made to You, or upon the basis of historical conversion rates if rates are unavailable at such time. Any questions (including disputes) regarding Payouts and/or payment should be directed to TrackingSoft client services. 3.5 Charge-backs. An Advertiser may request that TrackingSoft, or TrackingSoft may on its own initiative, debit Your Account with an amount equal to a Payout previously credited to Your Account in circumstances of : product returns; duplicate entry or other clear error; non-bona fide Transaction where there is no Publisher failure to comply with the this Agreement; non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or Publisher failure to comply with the terms of an Offer or Advertiser Click-through Agreement ("Charge-back"). Charge-backs requested by an Advertiser in accordance with the preceding sentence may be applied up to and including the 60th day after the end of the month in which the Payout was earned ("Charge-back Period"). TrackingSoft may apply at any time Charge-backs for all Transactions from Publisher's Web site(s) and/or subscription emails for Publisher's or its Sub-Publisher's failure to comply with this Agreement. An Advertiser may request that a Payout be postponed 1 payment cycle where Advertiser is verifying a Lead (for Lead Campaigns) or the Advertiser has a product return policy or offer to the Visitor that allows the Visitor to return the product during the Charge-back Period. 4.1 Proprietary Rights and Licenses. For each Advertiser whose Program You have been accepted to, TrackingSoft grants to You a revocable, non-transferable, royalty free, international sublicense to display and Link to the Advertiser's Web site or Web site content, and all trademarks, service marks, tradenames, and/or copyrighted material ("Content"), from each of Your Web Sites and/or subscription email for the limited purposes of Promoting the Advertiser's Program and subject to the terms and conditions of this Agreement. The foregoing rights are sub-licensable by You to Your Sub-Publishers only if authorized by Advertiser in writing. Your/Your Sub-Publisher's sub-license is conditioned upon You/Your Sub-Publishers (as the case may be): (a) not otherwise copying nor modifying, in any way, any icons, buttons, banners, graphics files or Content that is made available to You through the Network Service pursuant to such sublicense; and (b) not removing or altering any copyright or trademark notices. You grant to TrackingSoft a revocable, non-transferable, royalty free, international license to display on and distribute from TrackingSoft's Web site Content that You provide to TrackingSoft through the Network Service for the limited purposes of promoting You to Advertisers, subject to the terms and conditions of this Agreement and the Advertiser's Advertiser Service Agreement. The right to display such Content is sub-licensable by TrackingSoft to Your Advertisers for the limited purpose of advertising that You are a member of Advertiser's Program. Your Advertisers may not distribute and/or sublicense Your Content unless authorized by Your written permission. TrackingSoft and sub-licensees shall not otherwise copy nor modify, in any way, any Content that You have made available through the Network Service pursuant to the foregoing license. TrackingSoft and the sub-licensees may not remove or alter any copyright or trademark notices. You agree that Your use of any TrackingSoft Web site (such as www.trackingsoft.com) and Your use of any TrackingSoft Content or Links is subject to the license and terms of use that are available from such Web site ("Terms of Use"). Each party may make statements that it is doing business with the other party and use the other's logo with such statements, subject to the other party's name and logo usage guidelines. 4.2 No Challenge to Intellectual Property. TrackingSoft acknowledges that it obtains no proprietary rights in Your Content, and agrees not to challenge Your proprietary rights to the Content, if at all, unless and until this Agreement is terminated. You acknowledge that You obtain no proprietary rights in TrackingSoft's Content, patents, and patent applications, and agree not to challenge TrackingSoft's proprietary rights in TrackingSoft's patents and patent applications, and, with respect to the Content, if at all, until this Agreement is terminated. This Agreement may be terminated upon notice if the other party begins proceedings to challenge the party's intellectual property rights during the Term in violation of the foregoing provisions. You acknowledge that You obtain no proprietary rights in each of Your Advertisers' Content, and agree not to challenge such Advertiser's proprietary rights to the Content until the Advertiser has terminated You from its Program or You have withdrawn from the Advertiser's Program by removing all Links provided to You through the Network Service. The licensees/sub-licensees agree that all goodwill arising as a result of the licensor's Intellectual Property shall inure to the benefit of the licensor, and that all non-licensed/non-sublicensed proprietary rights in the Intellectual Property remain with the licensor. Licensees/sub-licensees shall not adopt any names, trademarks, service marks or domain names that are confusingly similar to, or in combination with any of licensor's tradenames, trademarks, service marks and/or domain names. 4.3 Terminating Licenses. The Advertiser may terminate any sublicense granted to You and/or a Sub-Publisher under this Agreement immediately upon written notice to You if the Advertiser has reasonable concerns that You and/or the Sub-Publisher is diluting, tarnishing or blurring the value of the Advertiser's trademarks, service marks, and/or tradenames, and/or breach of the Advertiser's other intellectual property rights. TrackingSoft may terminate this Agreement immediately upon written notice if TrackingSoft has reasonable concerns that You or Your Sub-Publisher may be diluting, tarnishing or blurring the value of TrackingSoft's trademarks, service marks, and/or tradenames, and/or breach of TrackingSoft's other intellectual property rights. 5.1 Privacy and Confidentiality. You or TrackingSoft may provide the other with information that is confidential and proprietary to that party or a third party, as is clearly and obviously designated by the disclosing party ("Confidential Information"). 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 in order to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that is or becomes part of the public domain through no act or omission of the receiving party, or is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or that the receiving party had in its possession prior to the date of this Agreement. The information that You supply to establish and maintain Your Account shall be Your Confidential Information, and You agree that TrackingSoft may but is not obligated to provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name (if applicable), date Web site or subscription email first entered into operation, and visitor demographics) to Advertisers. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through TrackingSoft's grossly negligent or willful conduct or omission). You shall provide TrackingSoft with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account. TrackingSoft's Privacy Policy that is accessible from the home page of www.trackingsoft.com and may be amended from time to time by way of republication, is incorporated into this Agreement. 5.2 Collection and Use of Transaction Data. TrackingSoft does not collect information about a Visitor's Transactions, other than what it receives through the installed tracking code. TrackingSoft reserves the right to be able to utilize this data, which may include information about Your performance statistics, to analyze Network Service trends, monitor Network Service efficiencies, maintain the integrity of the tracking code, promote Network Service capabilities and efficiencies, and promote You and Your Web site or subscription email performance to Advertisers. TrackingSoft may also disclose data regarding a Visitor's Transactions to You, if You referred the Visitor to the Advertiser, for the performance of this Agreement and to the Advertiser for the performance of the Advertiser's Advertiser Service Agreement, and for Your use for rewards programs that the Visitor is a member of (on the condition that the Visitor has authorized release of such information to You). Notwithstanding the foregoing, You represent and warrant that You shall not enable the Tracking Code to collect personally identifiable information of Visitors such that the TrackingSoft would be able based upon the data that is passed back by Advertisers to personally identify Visitors. 5.3 Collection and Confidentiality of Visitors' Personal Data. TrackingSoft promises not to disclose publicly, other than under compulsion of law, including subpoena, any personal or business information that can be linked specifically to any Visitors to Your Web site that result directly from Links on Your Web sites and/or subscription email mailings without the Visitor's express permission (which may be through the Visitor's membership to Your subscription email or Web site program), to the extent TrackingSoft collects any such information, including, but not limited to, the Visitor's name, email address, phone number, or any other personal information. 6.1 Term and Notices. This Agreement shall commence upon Your indication that You have accepted this Agreement by 'clicking through' the acceptance button on the TrackingSoft Web site, and, subject to Section 6.2, shall last until terminated in accordance with the terms of this Agreement. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (a) for TrackingSoft, via registered mail, return receipt requested or via an internationally recognized express mail carrier to TrackingSoft, LLC, Attn: Legal Dept., 19001 S. Old LaGrange Rd. Ste 400 Mokena IL, 60448 USA , and, (b) for You, at the email address listed on Your Account, and shall be effective upon sending as long as TrackingSoft does not receive an error message regarding the delivery. Your Account may be closed and TrackingSoft may terminate this Agreement if Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 90 day period. 6.2 Temporary Deactivation and Termination. This Agreement may be terminated by either party upon 30 days notice. This Agreement may be terminated immediately upon notice for Your breach of Section 1, or by either party if the other party challenges the party's intellectual property rights during the Term. Your Account may be deactivated in accordance with Sections 1, 2.2, 2.3, 3.5 or other material breach of this Agreement pending termination or cure of Your breach. If this Agreement is terminated for Your breach, You shall not be eligible to enter into a new click-on Adult Track Network Agreement with TrackingSoft, and any attempt to do so shall be null and void. Upon termination of this Agreement, an outstanding credit balance shall be paid by TrackingSoft to You within 90 days of the termination date, and an outstanding debit balance shall be paid by You to TrackingSoft within 30 days of termination of this Agreement, subject to amounts equivalent to pending for Charge-backs (that shall be paid promptly if and when TrackingSoft has been able to verify that no Charge-back is applicable). Upon termination of this Agreement, any license or sublicense granted under this Agreement will terminate, and the licensee/sub-licensee must immediately destroy or delete all physical and electronic copies of the Intellectual Property and the Confidential Information, and cause all Links to Advertisers (or applicable Advertiser) to be removed, and, in the case of termination, Links to TrackingSoft to be removed. Upon termination of this Agreement, or in case of deactivation of Your Account pursuant to the terms of this Agreement, You shall no longer accrue Payouts in Your Account for Visitors' click-throughs to any Advertiser's Web site or Web site content (including but not limited to subsequent sales and/or Leads). 6.3 Survival. The provisions of this Section and Sections 1, 3.4, 3.5, 5.1, 5.2, 6, 8.1(a), 9, 10, 11.3, 11.4, 11.6, and 11.7 shall survive the termination of this Agreement. 7 Changes to the Network Service. This Agreement, including the Introduction, 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. Notwithstanding the foregoing, TrackingSoft shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by notifying You of such Change, by email, at least 14 days prior to the effective date of such Change; provided however that either party shall have the right to terminate this Agreement pursuant to Section 6.2 in the event that You do not agree to such Change. 8.1 Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 8.2 Third Party Disputes. Should any third party (including a TrackingSoft Advertiser) dispute a party's right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on a party's Web site or through its subscription email, a party may, without prior notice, terminate this Agreement, or, in TrackingSoft's case, deactivate Your Account. A party's representations regarding the preceding may or may not be relied upon in the other party's decision whether to terminate this Agreement, or, in TrackingSoft's case, deactivate Your Account. 9.1 Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. 9.2 Authority and Compliance with Laws. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. Each party is responsible for compliance with the applicable local laws in the jurisdiction from which it operates and represents and warrants such compliance. Each party represents and warrants that the party shall have all appropriate authority and rights to grant the licenses hereunder, and that to the party's knowledge the licenses, and in the case of TrackingSoft, the technology that TrackingSoft utilizes for the Network Service, do(es) not infringe a third party's (or the other party's) intellectual property rights. 9.3 Limitation of Liabilities. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, ANY LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID AND PAYABLE TO YOU BY TRACKINGSOFT AND INTEREST PAID AND PAYABLE BY YOU TO TRACKINGSOFT DURING THE TERM OF THIS AGREEMENT. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. 9.4 Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH PARTIES DISCLAIM ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE). ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER. 9.5 Benefit of the Bargain. THE PROVISIONS OF THIS SECTION 9 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT. 10.1 TrackingSoft's Indemnification Obligations. TrackingSoft shall defend, indemnify and hold Publisher harmless against all claims, suits, demands, damages, liabilities, losses, penalties interest, settlements and judgments costs and expenses (including attorneys fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, for TrackingSoft's breach of Section 9.2 ("Claims"). Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then Publisher shall promptly notify TrackingSoft, and Publisher shall be entitled, at its own expense, and upon reasonable notice to TrackingSoft, to participate in, control the defense, compromise and to defend of such Claim. Participation nor control in the defense shall not waive or reduce any of TrackingSoft's obligations to indemnify or hold Publisher harmless. 10.2 Publisher's Indemnification Obligations. Publisher shall defend, indemnify and hold TrackingSoft harmless against all claims, suits, demands, damages, liabilities, losses, penalties interest, settlements and judgments costs and expenses (including attorneys fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement, (b) Publisher's violation of any law or alleged violation of law by TrackingSoft that is a direct of indirect result of Publisher's use of the Network Service (other than due to TrackingSoft's knowing and intentional violation), (c)Publisher's use of the Network Service, (d) Publisher's participation in any Program, (d) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (e) Publisher's acts of omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, (f) any claim that TrackingSoft is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, (g) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights, (h) Publisher's use of any content ("Claim(s)"). Should any Claim give rise to a duty of indemnification under this Section 10.2, TrackingSoft shall promptly notify Publisher, and TrackingSoft shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold TrackingSoft harmless. Publisher shall not settle any Claim without TrackingSoft's prior written consent. Publisher shall indemnify TrackingSoft for any reasonable attorneys' fees or other costs incurred by TrackingSoft in investigating or enforcing its rights under this Agreement. In the context of this Section 10.2 only, the term "TrackingSoft" shall include officers, directors, employees, corporate publishers, subsidiaries, agents, and subcontractors. 11.1 Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph. The content in other Web sites specifically referenced in this Agreement, such as URLs, is incorporated by this reference as though fully stated in this Agreement. 11.2 Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. Certain provisions of this Agreement are intended to benefit each Advertiser that has approved You for membership in its Program, and reciprocally, You are intended to benefit under each such Advertiser's Advertiser Service Agreement. You agree that Your rights under the Advertiser's Advertiser Service Agreement do not exceed the Advertiser's duties, as Your rights are limited by any defenses, claims and rights the Advertiser may have. You agree that Your consent is not necessary to modify any Advertiser Agreement. 11.3 Dispute Resolution. The parties will attempt in good faith to resolve through negotiation any dispute, claim, or controversy arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Section 11.3 ("Dispute"). If the Dispute is not resolved through verbal and written communications, the matter will be submitted to JAMS, or its successor, for arbitration. Any Dispute submitted to arbitration shall be determined by arbitration in Will County, Illinois, USA before a sole arbitrator, in accordance with the laws of the State of Illinois for agreements made in and to be performed in that State. The language of the arbitration shall be English. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator will have no authority to award punitive damages or any other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Judgment on the arbitration award ("Award") may be entered in any court having jurisdiction. The arbitrator shall, in the Award, allocate all of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the party that primarily prevails, against the party who that did not primarily prevail. 11.4 Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of Illinois (USA), except for its conflict of law provisions. Each party may apply to the state courts in Will County, Illinois, and, to the extent that federal courts have exclusive jurisdiction, in Will County, Illinois for injunctive relief until such time as the Award is rendered or the Dispute is otherwise resolved, and the parties agree that those courts and JAMS arbitration (in accordance with Section 11.3) shall be the exclusive fora for any such actions related to this Agreement. You consent to such venue and jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. TrackingSoft controls and operates its Web site from its offices in the U.S.A. and access or use where illegal is prohibited. 11.5 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, riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of God. 11.6 Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. 11.7 Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party's stock, assets or business; notice of assignment or transfer is required. Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. TrackingSoft may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT. Contact Information: TrackingSoft, LLC 7851 W. 185th St. Suite 106 Tinley Park, IL 60477 Direct Line: +1-312-646-7686 x 152 FAX: +1-312-646-7686