ClickFuze

CLICKFUZE.COM PUBLISHER AGREEMENT
These ClickFuze.com Publisher Terms and Conditions, which are hereby incorporated by reference (collectively, the "Agreement" or the "ClickFuze.com T&C"), between Fuze Ventures, LLC, hereunder known as ClickFuze.com, ClickFuze AdNetwork, and its affiliates, ("ClickFuze.com" or the "Company"), and you (the "Publisher") shall govern Publisher’s participation in the ClickFuze.com Network.

DEFINITIONS
"Action" means a specific activity that is required by an advertiser to qualify for the payment of the display of a Creative.

"ClickFuze.com Network" means the centrally managed group of third party Web Sites through which ClickFuze.com can distribute Creatives.

"ClickFuze.com" means Fuze Ventures LLC a Delaware limited Liability Company, owners of ClickFuze.com, ClickFuze AdNetwork, (collectively, ‘ClickFuze’, or the ‘Company’).

"CPA" means a campaign for which Publisher shall be paid on a Cost per Action basis.

"CPC" means a campaign for which Publisher shall be paid on a Cost per Unique Click basis.

"CPM" means a campaign for which Publisher shall be paid on a Cost per Thousand Impressions basis.

"Creative" means any type of advertising creative used by Publisher to deliver Units hereunder, including, but not limited to, buttons, banners, text-links, pop-ups, pop-unders, Streaming Video, Wireless, Registration, and Sponsorships.

"Impressions" means the number of times a Creative is served to, and received by, a unique visitor on Publisher’s Web Site(s) as measured by ClickFuze.com.

"Invalid Click" means any click on a Creative that causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher’s Web Site(s), or because of alterations made by Publisher or erroneous coding placed on the Publisher’s Web Site(s).

"Landing Page" means the web page on Publisher’s Web Site where Publisher collects lead data when generating Actions.

"Net Revenue" means, with respect to any particular period or time, the amount invoiced by ClickFuze.com to advertisers for serving Creatives, less the following deductions: transaction fees, third party campaign referral fees and commissions, and applicable ad serving and technology fees paid to third parties.

"Network Tags" means scripts provided by ClickFuze.com that are designed to be inserted into the HTML code of web pages within the Publisher’s Web Site(s), which scripts communicate with servers designated by ClickFuze.com and request transmission from those servers of Creatives. Network Tags include Run of Network code.

"Pub Trademarks" means Publisher’s trademarks, service marks, logos and trade dress.

"Publisher’s Net Revenue" means that Net Revenue generated by Publisher’s display of Creatives delivered to Impressions on Publisher’s Web Sites.

"Publisher" means the owner or manager of the Web Site(s) participating as member of the ClickFuze.com Network.

"Revenue Share" means a campaign for which payment is based upon a percentage of Net Revenue; such payment shall be the amount equal to the product of (i) the Publisher Net Revenue during such calendar month, multiplied by (ii) the revenue share percentage payout rate determined between ClickFuze.com and Publisher.

"Run of Network" means the code provided by ClickFuze.com that automatically rotates multiple Creatives available in the ClickFuze.com Network on Publisher’s Web Site as determined by ClickFuze.com.

"Unique Click" means the number of times, as recorded by ClickFuze.com, a person viewing Publisher’s Web Site(s), as identified by cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.

"Units" mean the advertising units (Impressions, Unique Clicks or Actions) available for delivery by Publisher.

"Video Creative" means a broadband video advertising unit as more fully described in the IAB Broadband Ad Creative Guidelines located at http://www.iab.net/iab_products_and_industry_services/1421/1443.

"Web Site" means a file or collection of files identified by a common domain name and located on a common server(s), each of which files contains a web object or collection of objects that provide content or functional instructions for user-accessible web pages, which files are publicly available via the Internet.

"Wireless Creative" means a Creative specifically designed to display on mobile telecommunications devices, such as cellular phones or PDA’s accessing a Web Site.

"Wireless Web Site" means a Web Site specifically designed to display on mobile telecommunications devices, such as cellular phones or PDA’s.

1. Prohibited Content.
ClickFuze.com does not accept any Web Site that contains: indecent, obscene or pornographic material, highly explosive subject matter (as determined by ClickFuze.com), or any illegal subject matter or activities (collectively referred to as the "Prohibited Content"). Publisher represents and warrants that during the term of this agreement any of its Web Site(s) on which it places Creatives shall not contain or promote any Prohibited Content.

2. Approval; Availability of Inventory.
Participation in the ClickFuze.com Network is subject to prior approval of ClickFuze.com. ClickFuze.com reserves the right to withhold approval or withdraw approval of Web Sites to participate in the ClickFuze.com Network for any or no reason and at any time. Any Publisher that materially changes their Web Site content after approval into the ClickFuze.com Network MUST notify ClickFuze.com IMMEDIATELY. Notices should be sent to Publisher’s Affiliate Manager. Approval to the ClickFuze.com Network is limited only to the specific Web Site(s) for which Publisher has applied for approval and is limited to the specific URLs approved. Creatives may not be placed within any Web Site(s) or on any URLs not specifically approved by the ClickFuze.com Network. Publisher’s participation in the ClickFuze.com Network is non-exclusive and all inventory is accepted at Publisher’s sole discretion.

3. Implementation / Creative Integration.

  1. Network Tags. ClickFuze.com requires placement of Network Tags on those web pages of Publisher that have been approved for Creatives. Publisher shall use reasonable efforts to promptly place and enable the Network Tags. From time to time, certain customizations may be required during this Agreement to ensure the Network Tags operate as intended, Publisher agrees to cooperate with ClickFuze.com to implement such customizations.

  2. License Grant. Subject to the terms and conditions of this Agreement, ClickFuze.com grants to Publisher a limited, non-transferable, non-exclusive, non-sub-licensable right and license to use the Network Tags and Creatives, solely for the purposes of performance of this Agreement.

  3. Restrictions. Publisher shall not: (i) sell, rent, lease, sublicense, transfer, distribute or otherwise make available the Network Tags or Creatives or any copies thereof to any third party; (ii) translate, reverse engineer, decompile or disassemble the Network Tags; (iii) create derivative works based upon the Network Tags; (iv) alter, destroy or otherwise change the Network Tags or Creatives (except as authorized in this Agreement); (v) copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes; or (vi) place the Network Tags or Creatives on unapproved Web Site(s) or web pages.

  4. Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Section, ClickFuze.com retains all right, title and interest in and to the Network Tags or Creatives including all patent, copyright, trade secret and other intellectual property rights therein.

  5. Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (example., Internet access) necessary to (i) operate Publisher’s Web Site(s) that has been approved by ClickFuze.com to deliver Creatives, (ii) use the Network Tags, (iii) display the Creatives, and (iv) access and use the ClickFuze.com Network services. ClickFuze.com will provide assistance to implement the Network Tags. Notwithstanding the previous sentence, Publisher is solely responsible for ensuring that such hardware, software, networks, systems and third-party services are compatible with the Network Tags, and ClickFuze.com makes no representation or warranty regarding any such compatibility.

  6. Provision of Impressions. Publisher agrees that ClickFuze.com requires Publisher to deliver the Impressions smoothly (i.e., no spikes in numbers of Impressions delivered). Unless otherwise agreed by ClickFuze.com in writing to accept spikes, ClickFuze.com, may, in its sole discretion, reject Impressions that are not delivered smoothly. For purposes of this Section, a "spike" is defined as the delivery of Impressions equal or greater than two times the number of Impressions contracted for five (5) consecutive days, subject to a minimum of (i) one million Impressions per day, or (ii) one million Impressions per day on the wireless impressions, or (iii) one million Impressions per day in streaming video.

4. Prohibited Activities.
Publisher agrees that it shall NOT, unless it has received written authorization from ClickFuze.com:

  1. Intentionally place Creatives on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other)

  2. Place Creatives on non-approved Web Sites or web pages, or in such a fashion that may be deceptive to the visitor.

  3. Place Creatives on any Web Site (a specific URL) other than the Web Site for which the Creative was accepted, or placement of advertisements intended for Web Sites on or within any other media other than Web Sites.

  4. Resell any Creativesto other Web Sites, publishers, or any other third parties.

  5. Serve Creatives from any location other than the ClickFuze.com server (stored images that are loaded from a different location will not count towards any statistic or payment).

  6. Alter, copy, modify, take, sell, re-use, or divulge in any manner any Creatives or computer code provided by ClickFuze.com; provided that Publisher may, without prior approval, change the font type, font style, and font size of text-link advertisements offered on the ClickFuze.com Network only for the purpose of matching the font in Publisher’s Web Site(s).

  7. Serve Creatives, or drive traffic to such Creatives, using any downloadable applications.

  8. Induce persons to click on Creatives based on incentives programs.

  9. Send emails to persons other that those persons who have requested to receive such emails (spamming) or use unsolicited email or inappropriate newsgroup postings to promote Creatives;

  10. Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e. requiring a visitor to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.

  11. Place Creatives on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications.

Publisher recognizes that a breach of any of these conditions could result in immediate, and irreparable damage to ClickFuze.com and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by ClickFuze.com, in its sole discretion, that Publisher has violated any of the foregoing conditions of this Section 4, Publisher agrees that ClickFuze.com may, in addition to other legal remedies, assess liquidated damages of up to $2,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.

5. Payment.

  1. General. Payment to Publisher shall be based on the payment terms and rates set forth in the Offer Catalog, or online terms (e.g., CPM, CPC, CPA, Revenue Share). Specific payout programs rates shall be set forth in online terms. Payments shall be made by ClickFuze.com no later than the 30th day after the end of the month in which revenue was earned by a specifically negotiated term with the Company. Publisher will be paid at the account level (if Publisher has multiple accounts, each account is evaluated independently). To insure timely payment, Publisher should notify their Affiliate Manager of any changes to its account information, including change of address, phone or email address. No payments will be issued for any amounts less than $25 U.S.D. All un-issued earnings will rollover to the next pay period.

  2. Withholding Payment. ClickFuze.com reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by ClickFuze.com in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.

  3. Disqualification. Impressions that are served but are not received due to end user blocking technology or software (pop-up blocking software) shall not count towards any payout calculation.

  4. Taxes. ClickFuze.com assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the service, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of participation in the service and agrees to indemnify and hold ClickFuze.com harmless from any such taxes. ClickFuze.com shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to ClickFuze.com for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. ClickFuze.com may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in ClickFuze.com’s sole and absolute discretion.

  5. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.

6. Counting.
ClickFuze.com shall have the responsibility because of its absolute and sole discretion for calculation of statistics, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on Publisher’s Web Site(s), as applicable. Publisher acknowledges that in some cases, ClickFuze.com will need to make adjustments to reported statistics due to specific contractual provisions (make-good bonuses), Invalid Clicks, or statistical errors.

7. Use of Data.
ClickFuze.com receives non-personally identifiable data (IP address, cookie information) as sent by Publisher in connection with serving Creatives in Publisher’s Web Site(s). ClickFuze.com will only use and disclose such data for any purpose in a manner consistent with ClickFuze.com’s Privacy Statement.

8. Term; Termination.

  1. These terms and conditions, shall apply to Publisher for as long as Publisher is a member of the ClickFuze.com Network. Either party may terminate this Agreement for any reason whatsoever, upon written notice to the other party. Notice may be provided via e-mail, fax, or other written means and will be effective immediately.

  2. Upon receipt of such termination notice, any licenses granted by ClickFuze.com hereunder shall immediately terminate and Publisher must remove all Network Tags from its Web Site(s) and cease delivery of any and all Creatives. In the case of termination, ClickFuze.com will pay Publisher all uncontested amounts due during the next billing cycle as set forth in Section 5, less a twenty-five dollar ($25.00 U.S.D.) account closing fee.

  3. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 6, 7, 8, 9, 10, 11, and 18.

9. Limitation of Liability.
CLICKFUZE.COM WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF CLICKFUZE.COM WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CLICKFUZE.COM’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. 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 CLICKFUZE.COM MORE THAN SIX MONTHS AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.

10. Indemnification.

  1. Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of ClickFuze.com, ClickFuze.com related company/companies and its officers, directors, agents, affiliates and employees associated with any and all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (a) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher’s Web Site(s) (except for Creatives supplied by ClickFuze.com, unless such Creatives were modified by Publisher without the express written consent of ClickFuze.com); (b) arising out of any material breach by Publisher of any term, condition, representation or warranty under this or any other agreement with ClickFuze.com; or (c) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Web Site(s) (other than through a Creative supplied by ClickFuze.com, unless such Creative was modified by Publisher without the express written consent of ClickFuze.com).

  2. ClickFuze.com. ClickFuze.com hereby agrees to defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by ClickFuze.com of any term, condition, representation or warranty under this Agreement.

  3. Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (a) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (b) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (c) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.

11. Confidentiality.
Publisher acknowledges that during the performance of its duties and obligations under this Agreement, ClickFuze.com may be required to disclose to Publisher certain information that ClickFuze.com regards as proprietary or confidential.

   1. Defined. As used in this Agreement, the term "Confidential Information" shall refer to: (i) ClickFuze.com’s trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations (iii) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (iv) any other information relating to ClickFuze.com that is not generally known to the public, including information about ClickFuze.com's personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (v) any and all analyses, compilations, studies, notes or other materials prepared that contain or are based on Confidential Information received from ClickFuze.com.

   2. Obligations. Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement. It will protect the Confidential Information in the same manner Publisher protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.

  3. Exceptions. The foregoing obligations shall not apply to the extent Confidential Information: (a) must be disclosed by Publisher to comply with any requirement of law or order of a court or administrative body (provided that Publisher agrees to notify ClickFuze.com 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 or in the possession of 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 officers, directors, employees, agents, consultants, attorneys or independent contractors in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party.

  4. Survival. The duties and requirements under this Section 11 relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive termination of this Agreement.

12. Publisher Trademarks.
Publisher authorizes ClickFuze.com to disclose its membership in the ClickFuze.com Network and grants ClickFuze.com the non-exclusive right to use, publish and display the Pub Trademarks in a client list of properties for which ClickFuze.com has advertising rights. ClickFuze.com may sell, promote or market the right to provide Creatives on the Publisher Web Sites, along with other websites, but only on a non-guaranteed, as-available basis, unless otherwise directed by Publisher in writing. Publisher may not disclose its membership in the ClickFuze.com Network without the prior written consent of ClickFuze.com.

13. Entire Agreement; Assignment.
These terms and conditions, shall constitute the entire and only agreement between the parties regarding Publisher’s participation in the ClickFuze.com Network, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement without the prior written consent of ClickFuze.com, which consent shall not be unreasonably withheld. This Agreement shall inure to the benefit of all successors and assigns.

14. Representations and Warranties.

  1. Both Parties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.

  2. Publisher. Publisher represents and warrants that (i) it owns or has the rights to all content, products, and services on its Web Site(s) to perform its obligations herein; (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.

  3. ClickFuze.com. ClickFuze.com represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to display the content contained in the Creatives and (ii) will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.

15. Remedy.
ClickFuze.com reserves the right to withhold payment and take appropriate legal action to cover its damages against any Publisher that violates these terms or breaches the representations and warranties set forth in this Agreement, or engages in fraudulent activity.

16. Modifications.
ClickFuze.com reserves the right to change any of these ClickFuze.com T&C at any time. Publishers are responsible for complying with any changes to the ClickFuze.com T&C within ten (10) business days from the date of change. ClickFuze.com will post notice that changes have been made to the ClickFuze.com T&C on the Publisher ‘Welcome Page’ or within the Publisher Account Control Panel.

17. Warranties.
NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED, EXCEPT AS EXPRESSLY SET FORTH HEREIN.

18. Governing Law; Venue.
The relationship between ClickFuze.com and Publisher will be governed by, and construed in accordance with, the laws of the State of Delaware without regard to its laws or regulations relating to conflicts of laws. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of Greenville, Delaware in connection with any action arising between the parties.

19. Severability and Waiver.
If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

20. Privacy.
Publisher represents and warrants that it shall, at all times during the term of this Agreement (i) maintain a privacy statement that complies with applicable law and (ii), provide a brief explanation within its privacy statement explaining that it allows third parties to serve Creatives within its Web Site(s).

21. Force Majeure.
Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes ("Force Majeure").