Online Affiliate Marketing Agreement AGREEMENT (this 'Agreement') by and between Digi.Direct (ADVERTISER), a Digital Consultants corporation, known as (ADVERTISER) address available upon request, and Affiliate, known as (AFFILIATE) with information provided upon registering at http://digitracker.net . WHEREAS, ADVERTISER wishes to engage AFFILIATE to perform the Sales and Marketing Services through Insertion Order, and ADVERTISER wishes to accept such engagement, upon the terms and subject to the conditions contained herein. NOW, THEREFORE , in consideration of the premises and mutual covenants and conditions contained herein the parties, intending to be legally bound, agree as follows: These terms and conditions ('Standard Terms') shall be deemed incorporated by reference into any insertion order (the 'Insertion Order') submitted by the ADVERTISER or its agency set forth in the Insertion Order (collectively, 'ADVERTISER') and shall govern the Insertion Order, superseding all terms therein except for those relating to advertisement scheduling and pricing. All Insertion Orders must be submitted with a ADVERTISER Insertion Order form and signed off on by ADVERTISER and are subject to acceptance by ADVERTISER. The Standard Terms and Insertion Order shall be collectively known as the 'Agreement.' ADVERTISER and its agency (if applicable) shall be jointly and severally responsible under this Agreement. 1. Term of Agreement . The term of this Agreement commences on the Acceptance Date set forth in the Insertion Order and terminates on the End Date set forth in the Insertion Order or such later date as the parties may agree in writing. 2. Terms of Payment . AFFILIATE will invoice ADVERTISER as set forth in the Insertion Order and as provided by ADVERTISER's reporting and tracking system. Payment as set forth in the Insertion Order shall be made to AFFILIATE 30 days from the end of each calendar month in which a transaction has occurred. All payments due hereunder are in US dollars and are exclusive of any applicable taxes. If ADVERTISER is acting as an agency for another client, and client fails to pay ADVERTISER all payments due affiliate will be suspended until ADVERTISER obtains payment from ADVERTISER'S client. AFFILIATE, will allow ADVERTISER to assign any outstanding balances under this IO to AFFILIATE if ADVERTISER is acting as a third party or agency of record. 3. ADVERTISER's Representations; Indemnification . ADVERTISER represents and warrants to AFFILIATE that ADVERTISER holds all necessary rights to permit the use of the advertisement by AFFILIATE for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any criminal, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or code, or (c) use any trademark, trade name, or corporate name of AFFILIATE without the prior written consent of AFFILIATE. ADVERTISER agrees to indemnify, defend and hold AFFILIATE and Third Parties (if any, and including, but not limited to AFFILIATE data and, or technology Partners,) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) breach of any of the foregoing representations and warranties, or (ii) any third party claim arising from use of or access to the advertisement under this Agreement or any material to which users can link, or any products or services made available to users, through the advertisement under this Agreement. 4. AFFILIATE'S Representations; Indemnification 4.1 The AFFILIATE represents and warrants that: (a) none of the AFFILIATE's websites contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, work or other self-executing program; (b) the AFFILIATE websites are reputable and comply with all laws applicable in the jurisdiction where the AFFILIATE is situated and also where the AFFILIATE directly or indirectly conducts its business or markets an Offer; (c) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail; (d) it has the authority to bind its Sub-AFFILIATES to the terms hereof and shall be liable for any breach of this Agreement by its Sub-AFFILIATES; and (e) IF THE AFFILIATE IS AN INDIVIDUAL, THAT THE AFFILIATE WAS AT LEAST 18 YEARS OF AGE ON THE DAY THE AFFILIATE AGREED TO THIS AGREEMENT. 4.2 The AFFILIATE covenants and agrees that: (a) it will, at all times, comply with all laws applicable in the jurisdiction where the AFFILIATE is situated and also where the AFFILIATE directly or indirectly conducts its business or markets an Offer; (b) it will, at all times, comply with the terms of this Agreement, (c) it will not, without the express written consent of ADVERTISER, use or permit its Sub-AFFILIATES or any person for who it is in law responsible to use any third-party trade-names or trade-marks; (e) it will not publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of ADVERTISER is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of ADVERTISER or the Client into disrepute, or which otherwise would be illegal; (f) it will at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the AFFILIATE elects to participate; (g) it will at all times comply with the provisions of the CAN-SPAM Act of 2003, the California Business and Professions Code, and applicable advertising laws as amended or replaced, from time to time; (h) it will be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail; (i) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from ADVERTISER; (j) it will not "frame" or "mirror" any part of any pages hosted by the Client unless expressly permitted by ADVERTISER and the Client; (k) it will not alter any website or electronic mail content provided by ADVERTISER; and (l) it will, at all times and from time to time, provide ADVERTISER with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as ADVERTISER may reasonably require. 5. Mutual Warranties. Each Party represents and warrants to the other that: (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement; (ii) neither the execution, delivery, nor performance of this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which such party is bound; and (iii) such Party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement. 6. Restrictions 6.1 The AFFILIATE shall not: (a) incentivize or offer points, rewards, cash or prizes for any User action unless it is expressly noted that the Offer is an incentive offer; (b) place misleading statements near any Advertising Material or falsely suggest a link between ADVERTISER and a third-party; (c) post any Advertising Materials using an unauthorized host; (d) violate guidelines of any search engines being utilized; (e) engage in search engine spam, doorway pages, cloaking, etc; (f) bid on any trademarked name or terms in any PPC/"keyword"/"adword"/Offer unless given express written permission by ADVERTISER (g) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the User; (h) engage in offline marketing, including facsimile or telemarketing, unless approved in writing; or (i) otherwise engage in any misleading or deceptive conduct or violate any other restrictions imposed by ADVERTISER or the Client. 6.2. AFFILIATE shall not place any Advertising Material on websites that promote, reference or have links to: (a) profanity, sexually explicit materials, hate, fraud, pyramid schemes, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful or that is unsuitable or harmful to the reputation of ADVERTISER, in ADVERTISER's sole discretion; (b) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or torrents; (c) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (d) personal web pages, websites under construction or without content; or (e) promote activities generally understood as Internet abuse, including but not limited to the sending of unsolicited bulk electronic mail or the use of adware, malware or spyware. 6.3. All Advertising Material and any content used by AFFILIATE'S in the promotion of any Offer must be pre-approved in writing by ADVERTISER or be obtained from ADVERTISER. If AFFILIATE is approved by ADVERTISER to send link out traffic from a website, all Advertising Materials used to drive traffic to that website must be approved by ADVERTISER. If the AFFILIATE disseminates any Advertising Material not approved by ADVERTISER, AFFILIATE shall forfeit all AFFILIATE Commissions. 7. Can Spam Compliance . The parties hereby represent and warrant that they shall at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses including, without limitation, the CAN-SPAM Act of 2003, laws governing deceptive trade practices and/or online marketing and/or advertising. ADVERTISER agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with the CAN-SPAM Act of 2003. Further, ADVERTISER specifically agrees to provide Affiliate with updated suppression files at a minimum of once per week. Affiliate agrees to NOT perform an email-marketing program without downloading the suppression located athttp://digitracker.net Affiliate agrees to indemnify, defend and hold harmless ADVERTISER, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys' fees) asserted by any third party due to, arising from, or in connection with: any breach by Affiliate of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed by Affiliate; and/or any intellectual property claims associated with any and all copy and images supplied by Affiliate and Affiliate's usage thereof. 8. Confidentiality. 'Confidential Information' of the other party except as specifically contemplated herein. 'Confidential Information' means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Insertion Order. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party. 9. Non-Competition /Solicitation AFFILIATE agrees not to circumvent ADVERTISER's relationship with any Client, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Client for whom ADVERTISER generated actions, sales, leads, impressions or clicks under the Agreement for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either Party's services herein for the six (6) month period (the "Non-Solicitation Period") following the AFFILIATE's performance of any Campaign hereunder. Without limiting any other right or remedy of ADVERTISER under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if AFFILIATE should violate this Section, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, AFFILIATE shall forfeit all AFFILIATE Commissions earned but not yet paid by ADVERTISER; and then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, AFFILIATE shall pay to ADVERTISER an amount equal to ADVERTISER's profits for the preceding eighteen (18) months generated by all Campaigns for such Client, or such lesser time as such relationship with the Client is in existence. 10. Termination; Effect of Termination . In the event of a material breach by either party, either party may terminate this Agreement immediately without notice or cure period, without liability to the other. In the event of any termination, ADVERTISER shall remain liable for any amount due under an Insertion Order for advertisement delivered by AFFILIATE and such obligation to pay shall survive any termination of this Agreement. ADVERTISER may terminate this agreement without cause with two business days notice. 11. Indemnification 11.1 Indemnification by AFFILIATE. The AFFILIATE covenants and agrees to defend, indemnify and save harmless ADVERTISER, service providers and their respective shareholders, directors, officers, and employees from and against any and all claims, suits, demands, damages, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred directly or indirectly as a result of (a) AFFILIATE's breach of or non-compliance with this Agreement, (b) AFFILIATE's violation of any law, (c) any consumer, ISP provider, internet service provider or any governmental/regulatory complaint arising out of any email Campaign conducted by AFFILIATE; (d) AFFILIATE's acts or omissions in using, displaying or distributing any internet links obtained from the Program Site or elsewhere, including but not limited to AFFILIATE's use of internet links via email distribution, (each (a)-(d) individually is referred to hereinafter as a "Claim"), whether or not the ADVERTISER or any of them are named as a party defendant in any such proceedings. Should any Claim give rise to a duty of indemnification under this Section ADVERTISER shall notify AFFILIATE, and ADVERTISER shall be entitled, at its own expense, and upon reasonable notice to AFFILIATE, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of AFFILIATE's obligations to indemnify or hold ADVERTISER harmless. AFFILIATE shall not settle any Claim without ADVERTISER's prior written consent. AFFILIATE also shall indemnify for any reasonable attorneys' fees or other costs incurred by ADVERTISER in investigating or enforcing this Section. The obligation of the AFFILIATE to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this Agreement or any agreement between the Parties. 11.2 Indemnification by ADVERTISER. ADVERTISER covenants and agrees to defend, indemnify and save harmless AFFILIATE, its parent company and their respective directors, officers, and employees (collectively, the "AFFILIATE Indemnified Group") from and against any and all third party claims or judgments, including all associated reasonable attorneys' fees, expenses and disbursements actually incurred, arising out of a breach by ADVERTISER of any warranty, representation or covenant given to the AFFILIATE in this Agreement. The obligation of ADVERTISER to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. The AFFILIATE may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by ADVERTISER. The AFFILIATE may participate in the defense of all claims as to which it does not assume defense and control, and ADVERTISER shall not settle any such claim without the AFFILIATE's prior written consent which shall not be unreasonably withheld. 12. Limitations of Liability ; ADVERTISER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE AMOUNT RECEIVED BY AFFILIATE FROM ADVERTISER FOR THE INSERTION ORDER GIVING RISE TO THE CLAIM. Without limiting the foregoing, AFFILIATE and ADVERTISER shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of ADVERTISER. ADVERTISER acknowledges that AFFILIATE has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties. 13. Audit Rights . ADVERTISER shall keep proper records and books of account relating to the computation of payments to be made hereunder. AFFILIATE or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with ADVERTISER's business activities and, except as provided below, shall be conducted no more frequently than once every six months. ADVERTISER shall immediately make any overdue payments disclosed by the audit. 14. Construction. No term or condition other than those set forth in the Standard Terms or in the Insertion Order relating to advertisement scheduling and pricing shall be binding on AFFILIATE unless in a writing signed by duly authorized representatives of the parties. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. The terms and conditions hereof shall prevail exclusively over any written instrument submitted by ADVERTISER, including AFFILIATE's insertion order, and AFFILIATE hereby disclaims any terms therein, except for terms therein relating to advertisement scheduling and pricing. 15. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of California. The Parties agree to the exclusive jurisdiction of the courts located in Los Angeles County, California with respect to any dispute arising as a direct or indirect consequence of this Agreement. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Either Party shall make no public announcement regarding the existence or content of the Insertion Order without Either Party’s prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Insertion Order (or in a separate writing) by nationally-recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.