Terms and Conditions

HYT Affiliate Terms & Conditions

These terms and conditions ('Agreement') are agreed to by the person or entity ('Affiliate') whose name and address appear in the application ('Application') to participate in  T&C's affiliate network (the 'Network'). As a participant in the Network, Affiliate shall display and distribute advertising creatives, including without limitation e-mails, web sites, links, and banner advertisements, and search engine placement (collectively, 'Ads'), promoting the products or services of advertisers with whom T&C ('HYT ') has contracted to provide online advertising services ('Advertisers'). The promotion of a particular Advertiser offer shall be referred to in this Agreement as a 'Campaign'. Specific payment and other terms applicable to each Campaign shall be specified in 'Campaign Terms' made available by HYT to Affiliate through the Network web site ('Network Site'). For purposes of this Agreement,  T&C and Affiliate are a 'party' and together, the 'parties'.
A. Modifications.

T&C reserves the right to modify the terms of this Agreement at any time and will post notice of any modifications, together with the amended Agreement, on the Network Site. Any modified terms will be effective immediately upon such posting and will apply as of the date they were added to the Agreement. Affiliate is responsible for checking for updates to this Agreement regularly. Affiliate's continued use of or participation in the Network after any such modifications are posted constitutes Affiliate's agreement to the modifications.
B. Privacy Statement.

Please carefully review  T&C's Privacy Statement, which is incorporated into this Agreement. By using the Network Site, Affiliate expressly consents to the use and disclosure of its personally identifiable and other information as described in the Privacy Statement.
C. Effective Date; Participation; Termination.

1. The effective date of this Agreement is the date that Affiliate electronically submits its Application to participate in the Network, provided that this Agreement shall become null and void if HYT denies Affiliate's Application for acceptance into the Network for any reason.
2. Affiliate is responsible for maintaining the confidentiality of the log-in information and password associated with its account and for all activity under its account. Affiliate may not transfer its account to another party or do anything else to give another party access to its account. Affiliate must notify HYT immediately if Affiliate becomes aware that anyone has gained unauthorized access to its account. Affiliate represents, warrants and covenants that (a) all information it provides in connection with its Application and account is accurate and complete; (b) it will immediately update its Application and account information as necessary to keep them accurate and complete; and (c) it will not use or attempt to use its Application or account to represent itself as any other party.
3. Participation in the Network is subject to HYT 's prior approval. HYT reserves the right to refuse service to any new or existing Affiliate, in its sole discretion, with or without cause. Affiliate must register with HYT all active domain names, subdomain names, and URLs used by Affiliate to promote Advertiser's products or services. Affiliate must update its list of registered domain names, subdomain names, and URLs in real-time to ensure the list is accurate and complete at all times. Continuing approval of Affiliate's membership in the Network is limited only to the specific root URLs for which Affiliate has registered.

HYT may terminate this Agreement and Affiliate's right to participate in the Network at any time, with or without cause, upon notice to Affiliate, which will be provided via email or any other practical means. Upon receipt of notice, Affiliate will immediately remove from its web site(s) all HYT code for serving Ads. Upon termination for any breach by an Affiliate of this Agreement (as determined by HYT ), no payments will be made by HYT to the Affiliate for any or all Campaigns. Affiliate shall not be paid for any Media & Advertising Sales (as hereinafter defined) occurring past the date of termination.
D. Compliance Requirements.

Affiliate represents and warrants that it will at all times comply with the requirements listed in this Section D:

1. Compliance with Laws. Affiliate shall use, display, distribute, and/or transmit the Ads (including Affiliate Ads, as defined in Subsection 2 below) in compliance with all applicable laws, statutes, ordinances, regulations, and legal guidelines (collectively, 'Laws') including, without limitation, those Laws governing false or deceptive advertising, cybersquatting, intellectual property, privacy, and publicity rights, the Federal Trade Commission Act ('FTC Act'), Federal Trade Commission ('FTC') regulations and guidelines implementing the FTC Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC's Telemarketing Sales Rule, the Federal Reserve Board's Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising.

2. Ads. Affiliate must use Ads as provided by Advertisers through the Network without modification or alteration of any kind, unless such modifications or alterations are pre-approved by HYT in writing. If Affiliate creates its own Ads ('Affiliate Ads') to promote an Advertiser's products or services, (a) Affiliate must obtain HYT 's prior written approval to use the Affiliate Ad, (b) Affiliate must comply with the Advertising Restrictions specified in subpart 3 of this Section D, and (c) Affiliate must comply with any Advertiser-specific requirements ('Advertiser Specific Terms') specified in the Campaign Terms. Any changes to an approved Affiliate Ad must be submitted in writing to HYT for further written approval before use. Changes may be submitted to affiliateservices@visikard.com.

3. Advertising Restrictions. Affiliate Ads must:

    1. not include content that is deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with applicable Laws, including without limitation, federal and state consumer protection Laws.

    2. be content-based, not simply a list of links or advertisements, nor can the Ads be centered around profiting from the Advertisers.

    3. contain only English language content (other than incidental use of a foreign language), unless HYT approves such content in advance.

    4. be offered under a top-level domain name.

    5. not offer points, rewards, cash, prizes, contest entries, or other incentives to consumers in return for their response to any Ad.

    6. be fully functional at all levels, with no 'under construction' sites or sections or blank pages.

    7. not spawn process pop-ups or use any downloadable application.

    8. not contain, promote, reference or link to any spyware, adware, malware, virus, trojan horse, worm, back door, time bomb, drop dead device or other program, routine, instruction, device, code, contaminant, logic or effect designed or intended to disable, disrupt, erase, enable any person or entity to access without authorization, or otherwise adversely affect the functionality of, any software or other information technology asset.

    9. not be personal web pages, 'free' hosted pages (Geocities, Xoom, Tripod, Talk City, etc.), or pages hosted on a domain owned by another person or entity

    10. not contain, promote, or have links to profanity, sexually explicit materials, hate material, libelous or defamatory material, or material that promotes promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed, in the sole discretion of HYT , unsuitable or harmful to the reputation of HYT or its Advertisers.

    11. not promote or reference illegal activities including, without limitation, the promotion of gambling, illegal substances, software piracy, or hacking.

    12. not be labeled as an 'official site' or similar designation or include any other designation indicating the Ad is an 'official' advertisement or web site of the Advertiser.

    13. not infringe, misappropriate, or otherwise violate the rights of any third-party, including without limitation, trademark, copyright, patent, publicity, privacy, or any other intellectual property, personal, or proprietary rights.

    14. not use the trademarks, service marks, trade dress, domain names, logos, or trade names (collectively, 'Marks') of Advertiser or any other third party (without Advertiser's or such other third party's prior written consent) (i) within the text, graphics or other content of any Ad; (ii) as a search term, keyword, and/or metatag, including in the title, body, and URL or search engine results; (iii) as a keyword on any search engine; (iv) as a metatag, in keyword stuffing or in other hidden layers on any web site; or (v) to drive organic search results.

    15. not promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail.

    16. not use any method to generate impressions, or transactions that are not initiated by the affirmative action of the consumer.

    17. not be a communication to a wireless device by text messaging in any form, unless HYT approves such communication in advance.

    18. not constitute advertising via facsimile or telemarketing (including, without limitation, by use of prerecorded or artificial voice messages).

    19. not be placed on Craigslist or other listing sites, or any other similar marketplace or classified ad listing.

    20. not include any 'Testimonial' (defined in this Agreement to include, without limitation, consumer endorsements or testimonials, celebrity or expert endorsements, verbal statements, demonstrations, photos or other depictions of the name, signature, image, likeness or other personally identifying characteristics of an individual or the name, Mark, or seal of an organization) unless: (i) Affiliate has obtained written releases from the individual or organization providing the Testimonial to distribute the Affiliate Ad, and (ii) the Testimonial is truthful, non-misleading, and substantiated, reflects the honest opinions, findings, and/or experiences of the individual or organization providing the Testimonial, and otherwise complies with all applicable Federal Trade Commission Guidelines and other Laws concerning the use of endorsements and testimonials in advertising.

    21. not include any claim (which may include Testimonials) regarding the efficacy of any product or services, or any ingredients contained therein, unless the Affiliate possesses documented, competent and reliable evidence, in writing, to verify the truthfulness and support the factual accuracy of the claim.

    22. not include a photo or other image of any celebrity and/or a Testimonial purporting to have been made by a celebrity unless such photo, image or Testimonial has been approved by the applicable Advertiser before use.

    23. not include any direct or indirect representation that an endorser of Advertiser's product or service is an expert with respect to the Testimonial provided unless the endorser's qualifications in fact give him/her the expertise that he/she is represented as possessing with respect to the endorsement. Affiliate may use the Testimonials of an expert only as long as Affiliate has reason to believe that the endorser continues to subscribe to the views presented.

    24. If Affiliate distributes Ads by email, Affiliate shall:

        1. Remove from the transmission list any email address associated with any person who has previously requested not to receive commercial email solicitations from the 'sender' of the message, as required by the CAN-SPAM Act. As used in this Agreement, the 'sender' of the message is the Advertiser whose products are promoted by the message. In order to comply with this requirement, Affiliate must have procedures in place to access and use appropriate 'opt-out' or 'do not email' suppression files applicable to any marketing Campaign sent by email, including without limitation any suppression file that may be made available by Advertiser with the Campaign Terms. In the event that Advertiser or Affiliate receives a request from any person to opt-out or unsubscribe from receiving commercial email messages from Advertiser, Affiliate shall transfer to Advertiser (via HYT ) all email addresses associated with such requests every three (3) calendar days.

        2. Remove from the transmission list any email address associated with a wireless domain name, as listed on the then-current list of wireless domains maintained by the Federal Communications Commission.

        3. Ensure that each email message includes (i) clear and conspicuous notice of the recipient's right to opt-out of receiving future commercial messages from the Advertiser; and (ii) a functional electronic mechanism that the recipient can use to make such an opt-out request, in compliance with the requirements of the CAN-SPAM Act and FTC regulations and guidelines implementing the CAN-SPAM Act. 4. Ensure that 'subject' and 'from' lines used in any email communications are truthful and non-misleading and do not otherwise violate the CAN-SPAM Act or any other federal and state consumer protection laws and regulations and do not infringe on or otherwise violate the intellectual property, publicity, or other proprietary or personal rights of any third party.

4. Fraud.

    1. HYT audits every Affiliate's traffic on a regular basis. If Affiliate adds Media & Advertising Sales, or inflates Media & Advertising Sales, by means that are fraudulent or otherwise in violation of this Agreement or applicable Laws ('Fraud Traffic'), as determined solely by HYT , Affiliate will forfeit its entire commission for any and all Campaigns and its account will be suspended or terminated. Fraud Traffic includes, without limitation, the following: (i) pre-population of forms or mechanisms not approved by HYT or use of sites in co-registration campaigns that have not been approved by HYT ; (ii) use of fake redirects, automated software, and/or fraud to generate Media & Advertising Sales (as defined in Section E) from the Campaigns; or (iii) other fraudulent traffic generation. Fraud Traffic may be evidenced by, without limitation, (A) click-through rates that are much higher than industry averages and where verifiable justification is not evident to the reasonable satisfaction of HYT ; (B) accounts that have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks reported; (C) fraudulent Media & Advertising Sales, as determined by the Advertisers; or (D) much higher conversions per click rates than industry averages and where verifiable justification is not evident to the reasonable satisfaction of HYT .

    2. If Affiliate is notified that Fraud Traffic activities may be occurring on its bridge pages, web pages, or other media, and Affiliate fails to take prompt action to stop those activities, then, in addition to any other remedies available to HYT , Affiliate shall be responsible for all costs and legal fees arising from those activities. In addition, in the event that Affiliate has already received payment for Fraud Traffic activities, HYT reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Affiliate.

5. Compliance Monitoring.

HYT has no obligation to monitor Ads (including Affiliate Ads) or traffic and is not responsible for Affiliate's compliance with this Agreement or applicable Laws, including, without limitation those Laws referenced in Section D.1 of this Agreement.
E. Payment

1. Payment terms for each Campaign, as well as a description of the required consumer actions ('Campaign Requirements') that constitute a valid, payable sale ('Media Campaign'), shall be specified in the Campaign Terms published at the Network Site or made available by a HYT account executive. HYT shall pay any amounts due to the Affiliate for valid, payable Media Campaign upon complete settlement payment from sales. Any payments due will be processed via Alert Pay if this method of payment is selected. Any payments processed via Alert Pay may be processed daily but is not guaranteed depending on the settlement of payments from sales. If method of payment is via check, HYT shall pay any amounts due to the Affiliate for valid, payable Media Campaigns on the 1st and 16th of every month for the revenue generated between the 1st to 15th and 16th to 31st respectfully. HYT shall not pay for Invalid Media & Advertising Sales. 'Invalid Media & Advertising Sales' are those Media & Advertising Sales that do not meet the Campaign Requirements. Examples include, but are not limited to, Media & Advertising Sales that are missing data, or do not meet filter requirements.

2. HYT reserves the right to reduce any payments owed to Affiliate as a consequence of any (i) any breach of this Agreement by Affiliate; and (ii) any offsets taken by Advertisers for Invalid Media & Advertising Sales, technical errors, tracking discrepancies, or if HYT does not receive payment in full from the Advertiser whose offer generated the payment. HYT is not a guarantor of any payment or obligations of any Advertiser. In its sole discretion, HYT may elect to pay Affiliate for a Campaign even if the Advertiser has not submitted timely payment to HYT . Otherwise, if it collects late payments from Advertisers, HYT will pay appropriate payments after that time. HYT will not pay any interest or late payment fees on any payments held, withheld or delayed by HYT or Advertiser. There are no refunds on your purchase of products or program material. There are NO refunds on any paid accounts. ALL SALES ARE FINAL. This means that even if you change your mind within one second of processing your payment, you will not be refunded or credited any amount of funds.

3. HYT shall compile, calculate and electronically deliver data required to determine Affiliate's billing and compensation. Any questions regarding the data provided by HYT must be submitted in writing within 10 business days of receipt of such data, otherwise the information will be deemed accurate and accepted as such by Affiliate. All amounts will be paid in US dollars by electronically to the approved merchant selected by the affiliate in the affiliate back office. No checks will be issued for any amounts less than $50 US Dollars (the 'Payment Threshold'). All such amounts below the Payment Threshold shall be aggregated and paid when the Payment Threshold has been met. HYT will not pay for any Media & Advertising Sales that occur before a Campaign is initiated, or after a Campaign terminates. Payments made to Affiliate shall be based on the Media & Advertising Sales as reported by HYT . HYT will not be responsible to compensate Affiliate for Media & Advertising Sales that are not recorded due to Affiliate's error or for nonpayment by the Advertiser. HYT may require a Affiliate to provide a W-9, and similar such information, as a condition to payment. HYT shall not be liable for lost, late, delayed, or unpaid payments due to Affiliate's failure to keep its email address, physical mailing address, and all other information provided on the Application current with HYT .
F. Use of Sub-Affiliates.

1. Affiliate agrees not to broker or resell any Campaigns or Ads, or otherwise engage or arrange for other parties ('Sub-Affiliates') to distribute Ads without express prior written permission from HYT , which may be withheld for any reason. Affiliate's failure to comply with the preceding provision will result in (a) Affiliate automatically forfeiting the right and claim to any revenue generated for its account, (b) immediate termination of Affiliate's participation in the Network, and (c) sole liability to HYT and Advertiser for all damages related to such breach.

2. If HYT approves Affiliate's use of Sub-Affiliates, Affiliate (a) must require each Sub-Affiliate to agree in writing to terms and conditions substantially similar to the Compliance Requirements set forth in Section D of this Agreement, and (b) remains solely responsible and liable to HYT and/or Advertiser for all of the actions (or failure to act) of any such Sub-Affiliate or any other parties working with, for, or under such Sub-Affiliate. Affiliate must keep records of all Sub-Affiliates and Ads distributed by Sub-Affiliates during the term that this Agreement remains effective and for a period of at least six (6) months thereafter. Affiliate must immediately comply with any demand by HYT to terminate any Sub-Affiliate and prevent such Sub-Affiliate from distributing Ads.
G. Code.

HYT Ad codes must not be modified from original format without prior written consent from HYT . Affiliate agrees to use the Ad code provided for displaying the Ad not more than ONCE per page view. Ad codes cannot be placed in email messages. HYT Ad codes cannot be used on web pages that contain forums, discussion boards, or chat rooms. Affiliate may not alter, copy, modify, take, sell, reuse, or divulge any HYT computer code, except as is necessary to partake in the Network, provided, however, with the prior approval of HYT , an Affiliate may, in certain instances, modify the HYT computer code for purposes of inserting certain pre-approved language above or below an Ad served by HYT . Requests for language approval should be sent to affiliateservices@visikard.com.
H. Use of Media & Advertising Sales; Ownership.

Affiliate hereby acknowledges that the collection of the Media & Advertising Sales is being done solely for the benefit of HYT or its Advertiser. Therefore, other than providing the Media & Advertising Sales to HYT for delivery to the Advertisers, Affiliate may not use, sell, transfer or assign or attempt to monetize the Media & Advertising Sales for its own purposes. As between the parties, all right, title and interest in the Media & Advertising Sales shall vest exclusively in, and Affiliate hereby assigns all such right, title and interest to, HYT .

All content on the Network Site, including, but not limited to, Ads, ad codes and other computer code, designs, text, graphics, pictures, video, information, applications, music, sound and other files, and their selection and arrangement (the 'Site Content'), is the property of HYT , its Advertisers, or its licensors, with all rights reserved. As between the parties, HYT and its Advertisers and licensors own and will continue to own all right, title, and interest in and to the Site Content, including without limitation any and all copyrights (and extensions of them) and other proprietary rights arising under United States and foreign laws, statutes, treaties, conventions, proclamations, or the like.

Affiliate may not: (a) remove or modify any copyright or other proprietary notices contained on the Site Content, including on any copies Affiliate makes of the Site Content; (b) cause, permit or authorize the modification, translation, reverse engineering, decompiling, reverse compiling, reverse assembling, disassembling or hacking of any applications or software on the Network Site; (c) use any data mining, robots, scraping, or similar data-gathering or extraction methods; (d) transmit any worms or viruses or any code of a destructive nature, including code that corrupts, disrupts, damages, or destroys data, software, or hardware; (e) provide, transfer, sell, lease, license, sublicense, distribute, disclose, or make available, or permit the use of, the Network Site by, a third party; or (f) upload, frame, sell, or republish Site Content on any Internet, intranet or extranet site or incorporate the information in any electronic database or compilation, without HYT 's prior written permission.

As between the parties, T&C owns all right, title and interest in and to the T&C™ trademark and trade name (the 'T&C Marks'). Affiliate may not use the T&C Marks in connection with any product or service, nor in any manner that is likely to cause confusion about whether T&C is affiliated with, or the source, sponsor, or endorser, of any product or service. In addition, Affiliate may not use the T&C Marks in any manner that disparages, tarnishes or discredits T&C or the T&C Marks.
I. Disclaimer of Warranties; Limitation of Liability.

1. The Network and services provided by T&C, their use by Affiliate, and the results of such use are provided on an 'AS IS' AND 'AS AVAILABLE' BASIS WITHOUT ANY WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, T&C MAKES NO WARRANTIES, GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. T&C DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. ALL SERVICES ARE CONTINGENT UPON T&C'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND T&C IS NOT RESPONSIBLE FOR DELAYS CAUSED BY A FORCE MAJEURE EVENT (AS DEFINED BELOW), COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. T&C WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. T&C SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

2. EXCEPT AS EXPRESSLY PROVIDED BELOW WITH RESPECT TO INDEMNIFICATION AND CONFIDENTIALITY, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSSES OR FOR INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THEIR OCCURRENCE; AND B) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR AN AMOUNT GREATER THAN THE NET FEES ACTUALLY PAID BY ADVERTISER TO T&C PURSUANT TO THIS AGREEMENT WITHIN THE PREVIOUS SIX (6) MONTH PERIOD OF THE INCIDENT LEADING TO THE LIABILITY. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST T&C MORE THAN ONE YEAR AFTER THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
J. Indemnification.

Affiliate hereby agrees to indemnify, defend, and hold harmless T&C and each Advertiser and their respective officers, agents, affiliates and employees from and against all claims, causes of action, suits, liabilities, damages, costs, expenses and fees (including attorney fees) arising out of or related to: (a) any claim for libel, defamation, violation of rights of privacy or publicity, intellectual property infringement or misappropriation, fraud, false advertising, misrepresentation, unfair competition, product liability, or violation of any Laws throughout the world in connection with Affiliate's or its approved Sub-Affiliates' web site(s); (b) any actual or alleged breach by Affiliate of any provision of this Agreement (including the Campaign Terms), or any actual or alleged misrepresentation of Affiliate hereunder; (c) any inaccuracies or omissions contained in Affiliate's Application, (d) any contaminated file, virus, worm, or Trojan horse originating from Affiliate's or its approved Sub-Affiliate's web site(s) or other media properties; or (e) any acts or omissions of any Sub-Affiliate or any other parties working with or under such Sub-Affiliate related to this Agreement ((a)-(e) collectively, 'Indemnifiable Actions'). T&C shall have the right to participate fully, at its own expense and with counsel of its own selection, in the defense of or settlement negotiations regarding any Indemnifiable Action. If a dispute between the parties arises over whether T&C is so entitled to indemnification, then T&C shall be free, without prejudice to any of T&C's rights hereunder, to defend itself against or negotiate a settlement regarding such Indemnifiable Action. Neither party may bind the other to any settlement of or other agreement regarding any Indemnifiable Action without the prior written consent of the other party; such consent will not be unreasonably withheld or delayed.
K. General Provisions.

1. Relationship of Parties. For purposes of this Agreement, each party shall be and act as an independent contractor. This Agreement does not constitute, create, or give effect to any employer/employee or franchiser/franchisee relationship, nor any joint venture, partnership, limited partnership, or agency among the parties, and the parties hereby acknowledge that no other facts of relations exist that would constitute, create, or give to effect any such relationship between them. Neither party has any right or authority to assume or create any obligation or responsibility on behalf of the other party except as may from time to time be provided otherwise by written agreement signed by both parties. It is further understood that Affiliate may be an affiliate for other networks in addition to the Network.

2. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their subsidiaries, and their respective successors and assigns, provided that neither party may assign any of its rights, privileges, or obligations hereunder without the prior written consent of the other party except to a successor in ownership (for example, by merger or acquisition) of all or substantially all of the assets of the assigning party, and which successor shall expressly assume in writing the performance of all the terms and conditions of this Agreement to be performed by the assigning party. Any attempt at assignment in derogation of the foregoing is null and void.

3. Mutual Representations. Each party represents and warrants that it is duly organized and in good standing, has the authority to enter into this Agreement, which constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, and has obtained all licenses, authorizations, releases, consents or permits required to perform its obligations under this Agreement and to conduct its business.

4. Severability. If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, all other terms will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated in this Agreement are not affected in any manner materially adverse to either party.

5. Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party (a 'Force Majeure Event'), including but not limited to fire, floods, failure of communications systems or networks, embargoes, war, acts of war (whether war is declared or not), acts of terrorism, insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances, acts of God or acts, omissions or delays in acting by any government.

6. No Waiver. The failure of either party to enforce at any time for any period the provisions of or any rights under this Agreement shall not be construed to be a waiver of such provisions or rights, or the right of such party thereafter to enforce such provisions or rights.

7. Governing Law. This Agreement will be governed by and construed under the laws of the Province of Ontario without regard to the conflicts of law provisions thereof to the extent that the laws of another jurisdiction would be required thereby. The parties agree to bring any action arising out of or related to this Agreement in a court of competent jurisdiction in the State of Georgia, irrevocably consent to the exclusive jurisdiction and venue of those courts, and waive any objection to that venue based on the forum's inconvenience or other reasons.

8. Confidentiality. During the term of this Agreement, each party (the 'Receiving Party') acknowledges and agrees that the other party (the 'Disclosing Party') may provide to it certain proprietary and confidential information, including but not limited to, non-public business and financial information, computer code, and personally identifiable information regarding Advertisers and Affiliates ('Confidential Information'). Confidential Information does not include (a) any information that the Receiving Party can show is in the public domain or became generally known or available without violation of any confidentiality obligations; (b) any information that, before its disclosure by the Disclosing Party to the Receiving Party, was in the Receiving Party's possession without violation of any confidentiality obligations; and (c) any information that, before its disclosure by the Disclosing Party to the Receiving Party, was independently developed by the Receiving Party. Each Receiving Party agrees that:

    1. it will not disclose the Disclosing Party's Confidential Information to any third party, except: (a) to the Receiving Party's professional advisors or employees with a need-to-know the information for purposes of this Agreement so long as the Receiving Party requires those advisors and employees to adhere to the confidentiality obligations under this Agreement, (b) with respect to T&C, as permitted by the Privacy Statement, or (c) as required by law or legal process, provided that the Receiving Party does not make any such disclosure without first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make the disclosure.

    2. neither it nor its employees will use the Disclosing Party's Confidential Information for any purpose not expressly permitted under this Agreement, or with respect to T&C, in accordance with the Privacy Statement; and

    3. it will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own confidential or proprietary information of similar nature, but with no less than reasonable care.

9. Entire Agreement; Modifications. This Agreement, including the Application, Campaign Terms, and Privacy Statement, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Applicable sections (including, without limitation, Sections B, C.4, D.4.b, F, G, H, I, J, and K) survive expiration or early termination of this Agreement.

10. Public Release. Affiliate shall not release any information regarding any Campaigns, Ads, or Affiliate's relationship with T&C or its Advertisers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of T&C.

11. Notices. All notices and other communications to T&C must be in writing, and will be deemed to have been duly given or made upon receipt if delivered in person, by reputable overnight courier service (with signature required) or by registered or certified mail (postage prepaid, return receipt requested) to T&C at: