The following are the terms and conditions governing Publisher’s relationship with [NETWORK_NAME] and the use of the [NETWORK_NAME] website (the “Site”). Publisher agrees to use the Site and any additional services offered by [NETWORK_NAME] only in accordance with these Terms and Conditions. [NETWORK_NAME] reserves the right to make changes to the Site and these Terms and Conditions at any time. Publisher’s continued use of the Site after any such modification and notification thereof shall constitute Publisher’s consent to such modification.

1. Approval of Publisher.

Registration with [NETWORK_NAME] shall not confer any right on Publisher to market or promote any Programs (as defined below) made available by [NETWORK_NAME] on the Site on behalf of its clients (the “Advertisers”). All prospective publishers need official approval from [NETWORK_NAME] before they can become Publishers. Only approved Publishers are permitted to use the Site. [NETWORK_NAME] reserves the right to withhold or refuse approval for any reason, whatsoever.

1.1 Minimum Eligibility Requirements.

In order to be eligible to become a Publisher, all websites, affiliated websites and e-mail distribution lists (collectively the “Media”) must meet the following criteria:

• All Publishers that wish to send e-mail advertisements must have permission based opt-in databases with functional unsubscribe mechanisms;
• Publisher websites must be content-based, not simply a list of links or advertisements, nor can the sites be centered around making money off of the Advertisers;
• Publisher websites must contain only English language content (other than incidental use of a foreign language);
• Publisher websites must have a top-level domain name;
• Unless otherwise approved in writing by EMM, Publishers may not offer incentives to users as means to enhance the performance of any Program (as defined below); incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.;
• Publisher websites must be fully functional at all levels; no "under construction" sites or sections; and
• Spawning process pop-ups and are prohibited.

1.2 Publisher Website Content.

The content of Publisher’s Media must comply with all applicable laws and regulations (including all laws respecting intellectual property rights) and, in any event, shall not include the following:

• Racial, ethnic, political, hate-mongering or otherwise objectionable content;
• Investment, money-making opportunities or advice not permitted under law;
• Gratuitous violence or profanity;
• Material that defames, abuses, or threatens physical harm to others;
• Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.;
• Software Pirating (e.g., Warez, Hotline);
• Hacking or Phreaking;
• Obscenity and any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic; and
• Any illegal activity whatsoever.

2. Use of the Site.

The Site allows [NETWORK_NAME] to post offers of advertising programs sponsored by [NETWORK_NAME] or its affiliates on the system ("Program(s)"). The Programs will specify the amount and terms under which Publisher will receive payment when the applicable Program's requirements are fulfilled. Compensation is derived from a specified event ("Event") identified in a Program, such as clicks, click-throughs, sales, registrations, impressions and leads. The definition of the Event associated with a Program is set forth in the Program's specifications, and such definition shall govern. If Publisher accepts a Program, Publisher agrees to place that Program's advertising creative (including the subject and from lines, the Advertiser Can-Spam disclosures and any other disclosures provided therein) ("Ad") on Publisher’s Media, in accordance with the terms of the relevant Program (the "Program Terms") and these Terms and Conditions. Publisher shall display the Ad exactly as it appears on the Site and will not alter it in any way. Failure to adhere to this requirement may, in addition to all other remedies available to [NETWORK_NAME], result in termination of Publisher. [NETWORK_NAME] may change a Program at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice to Publisher. Similarly, Publisher may drop previously accepted Programs at any time unless otherwise specified in the Program Terms, upon reasonable advance written notice (which notice shall be given no later than 15 days prior to the effective date of termination). [NETWORK_NAME] is responsible for displaying and administering all active Programs and tracking the payments owed.

3. License.

[NETWORK_NAME] grants Publisher a revocable, non-transferable, non-exclusive limited license to use the Site (including any Ads posted thereon) and any data, reports, information or analyses arising out of such use (the “Site Data”) solely for the purpose of marketing or promoting the Programs hereunder and subject to these Terms and Conditions and the applicable Program Terms. Publisher acknowledges and agrees that Publisher does not have, nor will it claim any right, title or interest in the Site software, applications, data, methods of doing business or any elements thereof, or any content provided on the Site (including the Ads). Publisher may only access the Site via web browser, e-mail or in a manner approved by [NETWORK_NAME]. Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from [NETWORK_NAME] that allows [NETWORK_NAME] to measure ad performance and provide its service. In addition, Publisher acknowledges that all non-public information, data and reports received from [NETWORK_NAME] hereunder or as part of the services hereunder is proprietary to and owned by [NETWORK_NAME]. If instructed to do so by [NETWORK_NAME] and/or if Publisher shall be terminated by [NETWORK_NAME], Publisher will immediately destroy and discontinue the use of any [NETWORK_NAME] data, including Site Data, and any other material owned by [NETWORK_NAME] or the Advertisers.

4. Fraud.

[NETWORK_NAME] actively monitors traffic for fraud. If fraud is detected, Publisher’s account will be made inactive pending further investigation. Publisher accounts are flagged that:

• Have click-through rates that are much higher than industry averages and where solid justification is not evident to the reasonable satisfaction of [NETWORK_NAME];
• Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
• Have shown fraudulent leads as determined by the Advertisers;
• Have much higher conversions per click rates than industry averages and where solid justification is not evident to the reasonable satisfaction of [NETWORK_NAME]; or
• Use fake redirects, automated software, and/or fraud to generate Events from the Programs.

If Publisher fraudulently adds leads or clicks or inflates leads or clicks by fraudulent traffic generation (such as pre- population of forms or mechanisms not approved by [NETWORK_NAME] or use of sites in co-registration campaigns that have not been approved by eMM), as determined solely by [NETWORK_NAME], Publisher will forfeit its entire commission for all programs and its account will be terminated. If Publisher is notified that fraudulent activities may be occurring on its Media, and Publisher fails to take prompt action to stop the fraudulent activities, then, in addition to any other remedies available to [NETWORK_NAME], Publisher shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that Publisher has already received payment for fraudulent activities, [NETWORK_NAME] reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher.

5. Payment.

Publisher will be paid per the terms of each Program. [NETWORK_NAME] shall pay any amounts due approximately 30 days after the end of each month, provided that [NETWORK_NAME] may, in its discretion, withhold payments until such time as the Advertiser has paid [NETWORK_NAME] for any Program. [NETWORK_NAME] reserves the right to reduce any payments owed to Publisher as a consequence of any offsets taken by Advertisers for invalid Events, technical errors, tracking discrepancies and the like. [NETWORK_NAME] shall compile, calculate and electronically deliver data required to determine Publisher’s billing and compensation. Any questions regarding the data provided by [NETWORK_NAME] need to be submitted in writing within 10 business days of receipt, otherwise the information will be deemed accurate and accepted as such by Publisher. All amounts will be paid in US dollars. No checks will be issued for any amounts less than $100 US Dollars (the “Payment Threshold”). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. [NETWORK_NAME] will not pay for any Events that occur before a Program is initiated, or after a Program terminates. Invoices submitted to [NETWORK_NAME] and payments made to Publisher shall be based on the Events as reported by [NETWORK_NAME]. [NETWORK_NAME] will not be responsible to compensate Publisher for Events that are not recorded due to Publisher’s error. [NETWORK_NAME] may require a Publisher to provide a W-9, and similar such information, as a condition to payment. Notices will be sent via email to all affiliates to inform them of any offer payout increase or decrease. It is the affiliate’s responsibility to adjust the payouts on their end.

6. Special Terms for Co-Registration Campaigns

With respect to Publishers who are running co-registration campaigns to generate leads (“Leads”) for Advertisers, the following specific terms and conditions shall apply:

6.1 Approval of Publisher’s Site(s).

No Program may go live until such time as [NETWORK_NAME], and if necessary the applicable Advertiser, have approved, in writing, (a) all sites to be used by the Publisher for each Program and (b) the transfer of leads in the form of either a successful post for real-time transfer or approval of the test file for batch or FTP files.

6.2 Publisher’s Privacy Policy.

Publisher represents and warrants that Publisher’s privacy policy permits the collection, use and transfer of data as contemplated hereby and the Program Terms.

6.2 Scrubbing Leads.

Each Program shall have its own criteria for determining the validity of a lead (the “Lead Requirements”), which shall be detailed in the section entitled "Special Terms" included in the on-site offer summary and the offer-specific instructions emailed by an [NETWORK_NAME] Account Executive. [NETWORK_NAME] shall only pay for net or billable leads (“Billable Leads”), which are determined by taking the gross leads from a Program and deducting Invalid Leads and Returned Leads. “Invalid Leads” are those leads that do not meet the Lead Requirements. Examples include, but are not limited to, leads that are missing data, do not meet filter requirements, are incorrectly formatted or do not meet certain phone, email and CASS (postal address) validations. “Returned Leads” are those that have met the Lead Requirements, but are rejected due to inaccurate data or the inability to verify user information. Examples include, but are not limited to, leads for which the the registrant is not at the phone number or address submitted, "unsubscribes" prior to being contacted, is on the "Do Not Call List", replies with "Did Not Request This Information" or the lead is a duplicate in the Advertiser's database. The [NETWORK_NAME] proprietary lead processing system is responsible for detecting and tracking Invalid Leads. The Advertiser is generally responsible for detecting and tracking Returned Leads. Billable Leads will generally be determined by the 10th of the subsequent month and will be displayed on the [NETWORK_NAME] site when available. Accordingly, any statistics regarding Billable Leads appearing on the Site during the month in which the Program is running are preliminary and are subject to adjustment as provided herein.

6.3 Use of Leads.

Publisher hereby acknowledges that the collection of the Leads is being done solely for the benefit of [NETWORK_NAME] or its Advertiser. Therefore, other than providing the Leads to [NETWORK_NAME] for delivery to the Advertisers, Publisher may not use, sell, transfer or assign or attempt to monetize the Leads for its own purposes. All right, title and interest in the Leads shall vest exclusively in [NETWORK_NAME] or its Advertisers.

7. Termination.

[NETWORK_NAME] reserves the right, in its sole and absolute discretion, to terminate a Program and remove any advertisements at any time for any reason, upon written notice to Publisher. [NETWORK_NAME] also reserves the right to terminate Publisher’s access to the Site at any time without notice.

Termination notice will be provided via e-mail and will be effective immediately, meaning, among other things, that Publisher must immediately cease all advertising activities. All moneys then due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained in paragraphs 8, 10, 11, 12 and 14.2 shall remain in full force and effect after termination of this Agreement. In addition, all payment obligations accruing prior to the termination date shall survive until fully performed.

8. Representations and Warranties/Covenants.

8.1 Mutual Representations.

Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated herein, consistent with these Terms and Conditions; (b) there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these Terms and Conditions; and (c) at all times while any Program remains in effect, it shall comply with all applicable laws and regulations. Neither party makes any guarantee, representations or warranties, express or implied, as to the level of consumer response that will result from the Programs.

8.2 Publisher Representations.

Publisher represents and warrants as follows:

1. Publisher’s Media is currently in compliance with all applicable laws (including without limitation the Can-Spam Act, effective January 1, 2004 (the “Can-Spam Act”);
2. Publisher’s Media does not contain or promote, nor links to another website that contains or promotes, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content, product, service or activity;
3. Publisher’s database consists of only permission based opted-in e-mail addresses; and
4. Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher’s Media.

8.3 Publisher Covenants.

Publisher covenants that it shall not:

1. send unsolicited commercial e-mail (spam) (i.e., it will send commercial e-mails in connection with any Programs to only those e-mail addresses that have consented to receive such e-mails);
2. post any specific messages to newsgroups, chat rooms, bulletin boards or any other places regarding any Programs unless expressly approved in writing from [NETWORK_NAME];
3. promote via website or link to websites containing any pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable or illegal content, or any other content referenced in paragraph 1.2;
4. use the Site in any manner other than what is specifically contemplated herein;
5. engage in any kind of deceitful, misleading or other unfair trade practices, or fraudulent or other unlawful practice when marketing any Programs; and
6. while an approved Publisher and for 180 days thereafter, participate in any performance based advertising relationship with any Advertiser within [NETWORK_NAME]’s network, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of [NETWORK_NAME]. In this connection, both parties agree and acknowledge that if Publisher violates its obligations hereunder, [NETWORK_NAME] will be entitled to damages in the amount of forty-five percent (45%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher.; and

Publisher covenants that it shall:

1. conduct the web advertising campaign for Advertiser in accordance with the highest industry standards;
2. ensure that any data collected for any lead generation, co-reg, opt-in or opt-out (collectively "Co-Reg") campaign is collected exclusively from the site or sites, which have been previously approved by [NETWORK_NAME] (and Advertiser, if so requested by [NETWORK_NAME]).
3. comply with all applicable law, including without limitation the CAN-SPAM Act. Without limiting the generality of the foregoing, if employing e-mail, Publisher shall (and shall cause its affiliates to):
4. refrain from falsifying e-mail header information (including, without limitation, source, destination and routing information);
5. refrain from seeking or obtaining unauthorized access to computers for the purposes of sending commercial e-mail;
6. include within any e-mail sent: a valid street address, a clear and conspicuous identification that any e-mail message is an advertisement or solicitation, and a clear and conspicuous and functioning opt-out notice;
7. comply with all legal obligations with respect to opting out or unsubscribing consumers from Publisher’s e-mail mailing lists, as well as Advertiser's e-mail list if applicable;
8. not use any subject or from line that is materially false or misleading, or use subject lines that is ambiguous as to the content of the e-mail (if permitted to use a subject or from line, other than those provided by [NETWORK_NAME]);
9. to the extent that [NETWORK_NAME] provides an opt-out or unsubscribe list (the “Suppression List”) to Publisher in connection with any Program, Publisher shall regularly scrub its database against and the Suppression List and shall not at any time send any commercial e-mails to any individuals on the Suppression List;
10. not use the Suppression List in any manner other than for the purpose contemplated by clause 6 above and Publisher shall not obtain any ownership interest or rights in and to any Suppression List;
11. Publisher shall alert [NETWORK_NAME] in the event that any litigation or investigation ensues concerning Publisher’s or its affiliates’ e-mail practices (irrespective of whether such litigation relates to Publisher’s relationship with [NETWORK_NAME]).

Publisher acknowledges that breaches of any of the foregoing representations and covenants may, in the sole discretion of [NETWORK_NAME], result in the immediate termination of [NETWORK_NAME]’ relationship with Publisher and Publisher shall forfeit all rights to any compensation theretofore owed to it by [NETWORK_NAME]. The foregoing rights shall be in addition to any other remedies available to [NETWORK_NAME]. Publisher aacknowledges and agrees that [NETWORK_NAME] shall not be responsible for the Advertisers' violation of any applicable laws or regulations, including, without limitation, the CAN-SPAM Act.

9. Privacy Policy.

Publisher shall maintain and post in a conspicuous manner on all its websites involved in the Programs, a privacy policy no less protective of consumer’s privacy interests than the [NETWORK_NAME] model privacy policy. Click here for the [NETWORK_NAME]'s model privacy policy. This model privacy policy (the "Policy") is provided as a service to [NETWORK_NAME]’ Publishers to provide an example of the level of consumer privacy protection that it expects its Publishers to adhere to with respect to the collection of personally identifiable information from its consumers. Publishers are not obligated to adopt the exact policy, indeed, the Policy may not be right for Publisher’s particular business and legal requirements. Publishers are, however, expected to provide at least the same degree of protection of their consumers’ privacy as contemplated in the Policy. [NETWORK_NAME] makes no representations or warranties whatsoever regarding this Policy, and disclaims any responsibility and liability whatsoever resulting from Publisher’s use, in whole or in part, of the Policy or its development or use of any privacy policy based on the Policy.

10. Customer Information; Non-Disclosure.

All information submitted to Publisher by an end-user customer pursuant to a Program is proprietary information of [NETWORK_NAME], its affiliates, and/or the Advertisers. Such customer information is confidential and may not be disclosed by Publisher. Publisher agrees not to reproduce, disseminate, sell, distribute or commercially exploit any such proprietary information in any manner.

11. Limitation of Liability; Disclaimer of Warranty.

Except as provided in paragraph 12 of these Terms and Conditions, in no event will either party be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages.

THE INFORMATION, CONTENT AND SERVICES ON THE SITE ARE PROVIDED ON AN "AS IS" BASIS. PUBLISHER USES THE SITE AND RUNS THE PROGRAMS AT ITS OWN RISK. OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, [NETWORK_NAME] DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT.

[NETWORK_NAME] makes no representations and warranties whatsoever, and disclaims any responsibility and liability, regarding the content or nature of any Ad or Program made available on the Site, or any product or service advertised in connection therewith.

12. Indemnity/Insurance.

12.1 Indemnity.

Publisher will defend, indemnify, and hold harmless [NETWORK_NAME], the Advertisers, and their affiliates, directors, employees, agents, successors and assigns from all claims, actions, losses, liability, damages, costs, and expenses (including reasonable attorney’s fees and expenses) (collectively “Claims”) arising from any breach of any of these Terms and Conditions or any Program Terms. [NETWORK_NAME] reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.

12.2 Insurance.

Publisher shall, while acting as Publisher hereunder, obtain and maintain at its own cost and expense from an insurance company reasonably acceptable to [NETWORK_NAME], an insurance policy providing coverage for both bodily injury and property damage liability, including without limitation products and completed operations liability, foreign liability, personal injury, advertising, libel, intellectual property infringement and comprehensive general liability insurance. The policy shall name [NETWORK_NAME] as an additional insured. The policy shall provide for coverage of $1,000,000 per occurrence and $3,000,000 in the aggregate. The policy shall provide for thirty (30) days' written notice to [NETWORK_NAME] from the insurer (by Registered or Certified Mail return receipt requested) prior to any modification, cancellation or termination thereof. Publisher agrees to furnish [NETWORK_NAME] with a certificate of insurance evidencing same within ten (10) days after execution of this Agreement.

13. Force Majeure.

Neither party shall be deemed in default of these Terms and Conditions to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

14. General.

14.1 Entire Agreement.

These Terms and Conditions, together with the terms for each of the Programs constitutes the entire agreement between the parties and supersedes all prior agreements or understandings between the parties.

14.2 Controlling Law.

These Terms and Conditions, the terms of the Programs and the relationship contemplated thereby, shall be governed by the laws of the State of California, without giving effect to principles of conflicts of law. Each party, to the extent permitted by applicable law, hereby irrevocably and unconditionally (i) submits to the general jurisdiction of the federal and state courts located in Los Angeles County, California; (ii) agrees that any action or proceeding concerning this agreement will be brought exclusively in such courts; and (iii) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding in any such court was brought in an inconvenient court and agrees not to claim or plead the same.

14.3. Waiver.

No waiver by either party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision.

14.5. Assignment.

Publisher may not assign any of its rights hereunder without the prior written consent of [NETWORK_NAME], which may be withheld for any reason.

14.6. Severability.

In the event that any provision of these Terms and Conditions is found invalid or unenforceable pursuant to any judicial decree or decision, such provision shall be deemed to apply only to the maximum extent permitted by law, and the remainder of these Terms and Conditions shall remain valid and enforceable according to its terms.

14.7. Relationship.

The parties agree that [NETWORK_NAME] is acting as an independent contractor in performing the Services and that the relationship between the [NETWORK_NAME] and Publisher shall not constitute a partnership, joint venture or agency. Neither [NETWORK_NAME] nor any of [NETWORK_NAME]’s employees or agents (collectively referred to herein as the “Employees”) (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. [NETWORK_NAME] retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither [NETWORK_NAME] nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees.

14.8. Notice.

Any notice, communication or statement relating to these Terms and Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission or verified e-mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to (a) Advertiser at the address provided in the registration, and [NETWORK CONTACT EMAIL]