Publisher Mail Advertising Agreement

EVERYONE.NET® INCORPORATED ADVERTISING AGREEMENT

This Advertising Agreement ("Agreement") contains terms and conditions relating to any and all Insertion Order(s) ("IO") submitted by an Advertiser or Agency ("Advertiser") to Everyone.net ("Company"). Company will provide advertising space to Advertiser in fulfillment of the IO according to the terms and conditions set forth in this Agreement. Used herein, the term "Agreement" shall refer to these terms and conditions and each IO accepted by Company.

1. Submission of Insertion Order. Advertiser shall submit IO to Company in the form specified by Company. No IO will be binding upon Company unless and until accepted in writing by Company, or Company begins fulfillment, whichever occurs first.
   
   
2. Reserved Inventory. Advertiser understands that Company reserves a portion of its inventory ("Inventory") at time of acceptance of any IO submitted by Advertiser and that Inventory represents future revenue to Company.
   
   
3. Usage Tracking Reports. Company will provide Advertiser with access to its usage tracking reports (the "Tracking Reports") in a format determined by Company, and such Tracking Reports shall be considered Confidential Information as provided for in Section 13 of this Agreement. Unless specified in the IO, Company makes no guarantees with respect to the Tracking Reports or level of impressions for any advertisement ("Advertisement"). Advertiser acknowledges that the Tracking Reports provided by Company are the official, definitive measurements of Company's performance on any delivery obligations provided in the IO. In the case of performance-based campaigns, in which payment is dependent on performance of Advertisement, such as, but not limited to, "click-throughs," "actual sales," "acquisitions," and "signups," "registrations," (collectively, "Actions") Advertiser agrees to provide Company, on a weekly basis, a report of said performance(s) in a format agreeable to both parties. Except as otherwise provided above, no other measurements or reports (including those of Advertiser or a third party ad server) shall be accepted by Company or have bearing on this Agreement.
   
   
4. Terms of Payment. Payments shall be made to Company in accordance with the terms stated on the invoice. Amounts paid after the due date shall bear a late payment charge of twenty-five dollars ($25) and interest at the rate of one and one-half percent (1.5%) per month or the maximum rate, whichever is lower. If Advertiser fails to make any payment due hereunder, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by Company in collecting such amounts. Advertiser shall be responsible for all applicable taxes (other than those on Company's net income).
   
   
5. Positioning and Style. Except as otherwise expressly provided in the IO, positioning of Advertisements within the Company properties or on any page is at the sole discretion of Company. Advertiser shall not submit, and Company shall not be obligated to accept, Advertisement that is not readily identifiable as advertisement. Company may, in its sole discretion, label any Advertisement as an "Advertisement" for clarification.
   
   
6. Provisions of Advertising Materials. Advertiser will provide all materials for Advertisement in accordance with Company's then-current policies which may change from time to time, including, without limitation, the manner of transmission to Company and the lead-time prior to publication of Advertisement. A copy of Company's advertising specifications can be obtained at the request of Advertiser. Company shall not be required to publish any Advertisement that is not received in accordance with such policies and specifications. Company reserves the right to charge Advertiser at the advertising rate specified in the IO for Inventory held by Company pending receipt of acceptable materials from Advertiser which are past due. Advertiser hereby grants Company a non-exclusive, worldwide, fully paid license to use, reproduce, and display the Advertisement (and the content, trademarks, and brand features contained therein) in accordance with this Agreement and subject to the provisions set forth in Section 8 below.
   
   
7. Renewals. Except as expressly set forth in the IO, any renewal of IO and acceptance of any additional advertising order shall be at Company's sole discretion. Pricing for any renewal period or additional advertising order shall be at Company's then-current rates.
   
   
8. Right to Reject Advertisement. All contents of Advertisement are subject to Company's approval. Company reserves the right to reject or cancel in whole or in part any Advertisement, IO, URL link, space reservation, position commitment, or the like at any time for any reason whatsoever (including belief by Company that such obligation may subject Company to legal liability) without liability to Company.
   
   
9. Survival. Sections 10 through 17 will survive any termination of this Agreement. Any payment obligation that exists as of the termination or expiration of this Agreement will remain in effect.
   
   
10. Delays. Advertiser agrees that Company shall reserve Inventory expressly for Advertiser's submitted IO, and that any delays in the delivery of materials necessary to run Advertisement shall be considered a failure to perform under this Agreement and shall cause monetary damages to Company. As such, any notice of termination provided by Advertiser following the submission of an IO by Advertiser to Company shall be ineffective until the end date specified in the IO, unless otherwise stated expressly in writing on the IO, and Advertiser shall remain fully liable for all advertising fees as set forth in the IO.
    
    
11. Cancellations. Advertiser may cancel all or a portion of any IO upon thirty (30) days' written notice to Company. In the event of such cancellation, all discounts for volume and length of purchase previously granted shall be rescinded, and the price applicable to any delivered impressions or Actions shall be adjusted accordingly. Advertiser shall pay Company, within thirty (30) days after the Advertisement is terminated, all amounts not yet paid (as determined in accordance with the higher price calculation) for such impressions or Actions delivered. All contents of Advertisement are subject to Company's approval, and Company may cancel any accepted IO or any individual advertisement obligation within an IO at any time, with or without cause, upon notice to Advertiser.
    
    
12. Restrictions. Advertiser may not resell, assign, or transfer any of its rights hereunder without prior written approval of Company.
    
    
13. Confidentiality. The parties acknowledge that they may have access to confidential or proprietary technical or business information of each other, including without limitation the Tracking Reports (collectively, "Confidential Information"). The parties will maintain strict confidentiality of the Confidential Information and will not disclose the Confidential Information to any third party or use the Confidential Information for any purpose except those contemplated by this Agreement.
    
    
14. Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN ANY ACTION ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS AND ANY IO IN EFFECT BETWEEN COMPANY AND ADVERTISER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY'S LIABILITY FOR DIRECT MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY ADVERTISER TO COMPANY OVER THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION. In the event that Company fails to either publish an Advertisement in accordance with the schedule provided in the IO, or if applicable, deliver the number of total impressions specified in the IO by the end of the specified period, the sole liability of Company to Advertiser shall be limited to one or more of the following, at Company's sole discretion: (i) a pro rata refund of the advertising fee for undelivered impressions; (ii) placement of the Advertisement at a later time in a comparable position; or (iii) reasonable extension of the term of the IO until total impressions are delivered. Company will have no liability to Advertiser for any Internet or telecommunications failure, computer virus, third party interference, or other third party software or hardware that may interrupt or delay access to any Internet site or cause other problems or losses (collectively, a "Network Failure"). Company will not be liable for any delay or failure to fulfill its obligations hereunder that results from war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, earthquake, failure or fluctuation in electrical power or other utility services, Network Failure, or other cause beyond Company's reasonable control.
    
    
15. Warranty; Indemnity. Each party to this Agreement represents and warrants to the other party that: (i) such party has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) the entry into this Agreement by such party and the performance by such party of its obligations and duties hereunder do not and will not violate any Agreement of such party, or by which such party is bound. Advertiser represents and warrants to Company that each Advertisement, as well as the first Internet page accessible through any hypertext link included within an Advertisement: (i) does not infringe any intellectual property, confidentiality, publicity or privacy rights of any third party; (ii) is not defamatory; (iii) is not lewd, pornographic, or obscene; (iv) does not constitute any illegal activity; and (v) does not contain any virus, worm, "Trojan horse" time bomb, or similar contaminating or destructive feature. Company may test Advertiser's URLs and, at Company's sole discretion, may remove any URLs at any time that fail to comply with the above requirements. If an advertising agency is entering into this Agreement on behalf of Advertiser, such advertising agency shall be jointly and severally responsible for all obligations and amounts owing hereunder. Each such Advertiser and/or advertising agency agrees to hold Company and its sponsors, employees, directors, agents, and representatives harmless from and indemnify them against any and all loss, liability, and expense (including reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings, or suits based on or arising out of: (i) any breach or alleged breach of the foregoing representations and warranties; or (ii) the contents or subject matter of such Advertisements, including, without limitation, claims for defamation, violation of rights of publicity and/or privacy, copyright, and/or trademark infringement.
    
    
16. Entire Agreement. This Agreement (including any IO) constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements. If there is any apparent conflict or inconsistency between the Agreement and any IO, the terms and conditions set forth in this Agreement shall control unless Company expressly agrees otherwise in writing. This Agreement may not be amended except in writing signed by both parties. Nothing in this Agreement will be construed such that either party is the other's partner, joint venturer, representative, agent, or employee for any purpose. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
    
    
17. Applicable Law. This Agreement will be construed in accordance with and governed by the laws of the State of California, without regard to principles of conflicts of law. The parties mutually consent and submit to the jurisdiction of the federal and state courts for Santa Clara County, California, and agree that any action, suit or proceeding concerning this Agreement may be brought in the federal or state courts of such county and that they will not raise, in connection therewith, any defense or objection based on lack of personal jurisdiction, improper venue, inconvenience of forum or the like.