Baseline Network Display Advertising Publisher Agreement

Last Updated February 20, 2010

Baseline Network LLC, ("BaselineNetwork"), and Publisher, enter into this Publisher Network Agreement ("Agreement") to establish the terms and conditions by which Publisher may enter the Baseline Network (the "Network") and market advertisements on behalf of BaselineNetwork Customers ("Advertisers" or "Customers"). BaselineNetwork and Publisher agree as follows:

1. BaselineNetwork Network

(a) Membership. Membership in the Network is subject to prior approval by BaselineNetwork. BaselineNetwork reserves the right to refuse service to any new or existing Publisher for any reason, in its sole discretion. Approval of membership in the Network is limited only to the domains and/or specific root URLs for which Publisher has applied for approval by BaselineNetwork. BaselineNetwork reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Website for any reason at any time with or without notice to the Publisher and regardless of whether such Publisher or Website was previously accepted. Without limiting the foregoing, BaselineNetwork reserves the right to require a potential or existing Publisher to submit detailed descriptions or explanations of the Publisher's Website(s) or application(s) functionality and back-end technology through a questionnaire or survey. Refusal to participate or answers deemed unsatisfactory constitutes grounds for non-acceptance or termination from the Network. This Agreement is voidable by BaselineNetwork immediately if Publisher fails to disclose, conceals or misrepresents itself in any way. Unless otherwise advised due to technological issues by BaselineNetwork, any person, Publisher, or affiliated group may have only one account; however, each account may include multiple Websites/domains. In the event Publisher signs up more than one Website/domain, and the Website/domain has been approved by BaselineNetwork, that Website/domain and each and every additional Website/domain is obligated and bound by these same terms and conditions. In any event, BaselineNetwork reserves the right to reject or approve any additional Website(s), and is under no obligation to accept any Website(s), even if the additional Website(s) is the property of an already approved Publisher. All activity for a given account will be consolidated into one report.

(b) BaselineNetwork Websites. For purposes of this Agreement, all Websites that are owned, operated or hosted by or on behalf of BaselineNetwork, including, without limitation, BaselineNetwork's branded Websites at http://www.BaselineNetwork.com and http://io.BaselineNetwork.com, are referred to herein collectively as the "BaselineNetwork Websites." Publisher agrees that it will not use the BaselineNetwork Websites or any content therein or data obtained therefrom for any purposes other than to fulfill this Agreement and that Publisher will not disseminate any of the information contained on BaselineNetwork Websites. Publisher agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage Publisher's account with BaselineNetwork or to monitor or copy the BaselineNetwork Websites or the content contained therein except via automated means expressly made available by BaselineNetwork, if any, or authorized in advance and in writing by BaselineNetwork (for example, BaselineNetwork-approved third-party tools and services). The BaselineNetwork Websites contain robot exclusion headers and Publisher agrees that it will not bypass BaselineNetwork's robot exclusion headers (including using any device, software or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the BaselineNetwork Websites or any program thereon, or the BaselineNetwork system. Without limitation to the foregoing, Publisher further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the BaselineNetwork Websites, any programs thereon, or BaselineNetwork's infrastructure, as determined by BaselineNetwork.

(c) Services. Publisher understands and agrees that from time to time the BaselineNetwork services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which BaselineNetwork may undertake from time to time; or (iii) causes beyond the control of BaselineNetwork or which are not reasonably foreseeable by BaselineNetwork, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures. While BaselineNetwork will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that BaselineNetwork has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that BaselineNetwork is not responsible for the functionality of any third-party Website or interface. Terms of this Agreement are subject to BaselineNetwork hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement. BaselineNetwork reserves the right to discontinue offering any of the BaselineNetwork systems and/or BaselineNetwork Websites at any time. Except as otherwise specified by BaselineNetwork, Publisher agrees that it will direct all communications relating to any BaselineNetwork Website or its participation therein directly to BaselineNetwork and not to any other entity.

2. Website Content and Prohibited Conduct

(a) Pre-approval Required. Any of Publisher's Websites that relate to or have any characteristic of the following shall only be approved on a case by case basis: (i) excessive ads, app ? quest/test, user generated content (blogs, etc.), (ii) foreign sites, (iii) old content, and/or (iv) poor quality design and functionality.

(b) Prohibited Conduct. BaselineNetwork does not accept Websites that produce, relate to or have characteristics of Prohibited Conduct. "Prohibited Conduct" is defined as:

        (i). Ad Placement & Tracking. Publisher shall not: (1) Place Creatives or Ads in emails; (2) Intentionally place Creatives on blank web pages or on web pages with no content; (3) Stack Creatives (e.g. place on top of one another so that more than two (2) ads are next to each other); (4) Place Creatives on non-approved Websites or web pages, or in such a fashion that may be deceptive to the User; (5) Incentivize offers or create the appearance to incentivize offers; (6) Place statements near the Ads requesting that Users "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (7) Place misleading statements near the Ad (i.e., "You will win $1,000."); (8) Redirect traffic to a Website other than that listed by the particular Advertiser; (9) Ask Users to take advantage of other Ads or offers other than those listed by the particular Advertiser; (10) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of BaselineNetwork, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per User session when the application is active, enabled and clearly recognizable by the end User as being active and enabled. Serving Creatives at any time when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay; (11) Use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (12) Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from BaselineNetwork that allows BaselineNetwork to measure ad performance and provide its service. (13) Deliver in-page ad code via pop-ups/unders.

        (ii). Websites. Publisher shall not place any Creative, Ads or Network IP on Websites that contain, promote, reference or have links to: (1) profanity, sexually explicit materials, hate material, promote violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed unsuitable or harmful to the reputation of BaselineNetwork; (2) software piracy (including but not limited to warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity; (3) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others; (4) personal web pages, non-English language pages, or free hosted pages (i.e. Geocities, Xoom, Tripod, Talk City, etc.); (5) Websites under construction, hosted by a free service, personal home pages, or that do not own the domain they are under; (6) charity clicks/donations, paid to surf, personal Websites, Website applicants who are not the owner of or employed by the applying Website, ActiveX downloads, no content (link site), all affiliate links, or incentivized traffic; (7) Promote activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Spyware. For purposes hereof, "Spyware" shall mean computer programs or tools that (i) alter a computer User's browser or other settings or use an ActiveX control or similar device to download ad supporting software without providing fair notice to and obtaining affirmative consent; (ii) prevent a computer User's reasonable efforts to block the installation of or disable or remove unwanted software; (iii) remove or disable any security, anti-spyware or anti-virus technology on a User's computer; (iv) send email through a User's computer without prior authorization; (v) open multiple, sequential, stand-alone advertisements in the consumer's Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (vi) other similar activities that are prohibited by applicable law.

3. Ad Content and Placement

(a) Compliance with Industry Standards. Publisher agrees to undertake and complete the services as specified by the BaselineNetwork Network, including all Ad placement restrictions or channels specified, in accordance with the highest industry standards. Publisher shall position the Ads in such a manner to assure that they are fully and clearly visible to consumers and displayed in a similar manner as other merchants included in the Website.

(b) No Modifications to Creative, Code or Network IP. Except as permitted under this Agreement, Publisher may not alter, copy, modify, take, sell, re-use, or divulge in any manner any Creative, Network IP or computer code provided by BaselineNetwork without BaselineNetwork's prior written consent. Publisher may not copy BaselineNetwork's Ads and display them from Publisher's Website directly; redirect traffic to a Website other than that listed by BaselineNetwork or the Advertiser; or ask Users to take advantage of other Ads or offers other than those listed by BaselineNetwork or Advertiser. Any BaselineNetwork content which is copied, changed or altered without prior written consent will result in non-payment for the campaign and may result in termination. Any approved modifications to BaselineNetwork Code or Network IP shall be owned solely by BaselineNetwork.

(c) Requirements. Publisher shall be solely responsible for (i) managing its advertising content exclusions in the BaselineNetwork interface, and (ii) placing Ads on the Publisher Media, which placement shall be subject to the terms and conditions of this Agreement. Ads may only be placed on Approved Websites. Banner, Leaderboard, Skyscraper, Wide Skyscraper must be placed within 600 pixels of the top of the Webpage (above the page scroll/fold). Skyscrapers or wide skyscrapers and half page formats cannot be placed on the same page. Publisher will not place Ads in emails, on blank pages, on pages with no content, on top of one another, on non-approved Websites, or in such a fashion that may be deceptive to the User. Website Ads (Banners, Leaderboards, Skyscrapers, Wide Skyscrapers, Rectangles, Medium Rectangles) may not be placed on chat rooms, and other entities for which Publisher does not have complete control and/or ownership. Publisher agrees to use the BaselineNetwork Code provided by BaselineNetwork for displaying an Ad not more than ONCE per page view. PLACEMENT OF ADS IN EMAILS IS PROHIBITED.

(d) Default Ads. Publisher acknowledges and agrees that BaselineNetwork may not be able to fill 100% of advertising requests sent to its servers with paying Ads. BaselineNetwork provides free Publisher-defined default redirects expressly for this reason. Publisher-defined default Ads must adhere to the content guidelines outlined for all BaselineNetwork Advertisers (no adult content, etc.) Publishers found using default Ads that violate the content restrictions of this Agreement will be removed from the Network. If Publisher chooses not to specify a default redirect, BaselineNetwork will display so-called 'house' and/or 'AdCouncil' ads on Publisher's Website when paid advertising is unavailable. BaselineNetwork may also display so-called 'house' and/or 'AdCouncil' ads on Publisher's Websites when technical difficulties require it. So-called 'house' and 'AdCouncil' ads are not paid advertising. Under no circumstances does BaselineNetwork guarantee to provide any percent fill of paid advertising to a Website.

4. Network Quality

BaselineNetwork will not tolerate or accept any activities it deems harmful or potentially damaging to its reputation and/or business, or that of its customers and/or clients including but not limited to the activities stated in this Agreement. BaselineNetwork employs individuals for the express purpose of monitoring the Publishers' Websites within BaselineNetwork's network to ensure that our customers and clients are receiving the highest quality campaigns. BaselineNetwork has also developed an advanced anti-fraud system and regularly audits Publisher's traffic. Publishers that commit fraudulent activities, including false clicks, false impressions, and incentivized clicks, will have their accounts permanently removed from the Network and may not be compensated for fraudulent traffic. BaselineNetwork has several fraud mechanisms at its disposal that will detect most forms within a few days of the initial activity. All Creatives must be served from a BaselineNetwork server or serving location, or through a BaselineNetwork approved 3rd-party-hosted server. Stored images that are loaded from a different location will not count towards any statistic or payment.

5. Proprietary Rights

(a) Licenses. At the agreed upon pay-out price and provided that Publisher complies with all provisions of this Agreement, BaselineNetwork hereby grants to Publisher a nonexclusive, limited, revocable license to use, execute, and display the Network IP solely for purposes of performing its other obligations hereunder. Except for the limited license expressly granted in this Section, nothing in this Agreement shall be construed as BaselineNetwork granting Publisher any right, title or interest in Network IP. Publisher acknowledges and agrees that BaselineNetwork and/or Advertiser owns all right, title and interest in and to the Network IP and all related intellectual and proprietary rights of any kind anywhere in the world. Publisher's use of the Network IP or the results created thereby, or disseminating or distributing any of this information except as expressly permitted by this Agreement is strictly forbidden and will result in the termination of this limited license and may result in Publisher being held liable under applicable law.

(b) Intellectual Property Ownership. Subject to the limited licenses granted to BaselineNetwork and Publisher hereunder, each party shall own and shall retain all right, title and interest in its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, knowhow and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.

(c) Data Ownership. Publisher understands that all data, including, but not limited to, personally identifiable information provided by Users in response to an Ad and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by BaselineNetwork from such data is the sole and exclusive property of Advertiser and/or BaselineNetwork and is considered Confidential Information pursuant to this Agreement. BaselineNetwork and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the User(s) and or data without further obligation to Publisher. Publisher shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such information, or any portion thereof, to any third-party. Unless otherwise agreed to in writing by the parties, any other use of such information is strictly prohibited.

6. Representations and Warranties

(a) Publisher Responsibility. The parties hereby acknowledge that Publisher is solely responsible for the method of dissemination of the campaigns, and that BaselineNetwork will not have any control over the method of dissemination and is relying entirely on these warranties made by Publisher.

(b) Publisher Warranties. Publisher represents, warrants, covenants and acknowledges that (i) it will provide and maintain the resources, personnel and facilities suitable to perform its obligations under the Agreement; (ii) it will comply with all applicable federal, state and local laws and regulations including, without limitation, laws relating to advertising, the Internet, privacy and unfair business practices; (iii) it will not engage in Prohibited Conduct; (iv) it will comply with BaselineNetwork's Privacy Policy as amended from time to time; (v) that Publisher is at least 18 years of age on the effective date of this Agreement; and (vi) that BaselineNetwork does not make any specific or implied promises as to the successful outcome of any campaigns.

(c) 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 the Agreement.

7. Privacy Policy.

(a) Please review BaselineNetwork's Privacy Policy. By registering as an advertiser and/or publisher, Publisher is consenting to the use of any personal information and non-personal information Company collects from Subscriber as described in the Privacy Policy. Without limiting the generality of the foregoing, by providing information to us, Publisher acknowledges that BaselineNetwork operates in the United States and Publisher agrees to permit Company to collect, transmit and use Publisher?s personal information and non-personal information anywhere that Company deems necessary for the performance of BaselineNetwork?s Services -- including outside the country where Publisher is located, across international boundaries and in the United States -- and that such use shall be subject to the terms and conditions stated in BaselineNetwork?s Privacy Policy and this Agreement. In the case of the United States, Company may be required to disclose Subscriber?s personal information to government authorities, regulators, or law enforcement in accordance with applicable laws, which may include the USA PATRIOT Act.

(b) Except as disclosed in the privacy policy, (i) BaselineNetwork makes no guaranty of confidentiality or privacy of any communication or information transmitted on or through the site, services or any website linked to the site; and (ii) BaselineNetwork will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other content stored on BaselineNetwork's equipment, transmitted over networks accessed by the site, or otherwise connected with publisher's use of the services.

(c) Cookies. Publisher acknowledges that (i) cookies are important devices for measuring advertising effectiveness and ensuring a robust online advertising industry and (ii) efforts are required to increase User awareness about the use of cookies and their role in providing free content and other benefits to Users. Publisher agrees to take such steps as may be commercially reasonable and appropriate to promote User awareness about cookies or similar devices as may be identified by BaselineNetwork.

8. Payment

(a) Payment Rate. BaselineNetwork will pay Publisher a revenue share equal to fifty percent (50%) of Net Revenue. BaselineNetwork reserves the right to set campaign rates, which may vary with market conditions. Publishers will typically be paid within twenty-five (25) business days after the end-of-month. Do not invoice BaselineNetwork; all Publisher invoices are discarded. Publishers will be paid at the account level. All accounts will be settled in US dollars ($US). No check will be issued for any amount less than $25US ("Minimum Payment Threshold"). All unpaid earnings will rollover to the next pay period. Based on the Minimum Payment Threshold, any Publisher account that goes unpaid for six (6) months becomes subject to immediate payoff and dismissal from the Network. As a condition to BaselineNetwork's obligation to make payments hereunder to Publisher, Publisher must have on file with BaselineNetwork a completed and accurate W-9 (for US-based Publisher's) or a completed and accurate W-8 (for non-US-based Publisher's). Publisher payments will be withheld until the appropriate taxation documents are received by BaselineNetwork. If the required tax documents are not on file with BaselineNetwork within three months of the date of a scheduled payment, BaselineNetwork may charge a monthly administrative fee, representing BaselineNetwork's cost of establishing and maintaining Publisher's account, equal to 25% of the original balance. All payments are based on actuals as defined, accounted and audited by BaselineNetwork. BaselineNetwork reserves the absolute right to withhold payment from accounts or Publishers that violate any of the terms and conditions set forth herein. BaselineNetwork will determine, in its sole discretion, whether acts or omissions are deceptive, fraudulent or violate this Agreement. Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs.

(b) Breach or Fraud. If any Publisher violates or refuses to fulfill its responsibilities, or commits fraudulent activity, BaselineNetwork reserves the right to withhold payment and take appropriate legal action.

(c) Calculation. Calculation of Publisher earnings, including Impressions and click through numbers, shall be in BaselineNetwork's sole discretion. In the event Publisher disagrees with any such calculation, Publisher shall immediately send a written request to BaselineNetwork detailing, with specificity, Publisher's concerns. Thereafter, BaselineNetwork will provide Publisher with an explanation or, if such calculations are determined by BaselineNetwork to be incorrect, an adjustment. BaselineNetwork's calculations shall be final and binding. In the event no adjustment is necessary, Publisher shall reimburse BaselineNetwork for its expenses in responding to Publisher's requests under this Section.

9. Referral Program

(a) New Website. If Publisher refers a new Website to BaselineNetwork using the referral link tool, referring Publisher will receive five (5%) percent of amounts paid to the referred Publisher for the period of six (6) months from date of acceptance, contingent upon the referred Website(s) being accepted into the network. Publisher may place a maximum of one (1) banner link and one (1) text link on any single page of their approved Website (URL) only. Referral links must not be placed in any email solicitations or communications.

(b) No Referral Revenue. Publisher will not receive referral revenue for (i) existing or already approved Websites; (ii) Websites previously rejected, banned, or otherwise excluded by BaselineNetwork; (iii) additional Websites owned, affiliated and/or operated by the referring Publisher; (iv) Websites that have been subsequently rejected, banned or otherwise excluded from BaselineNetwork's Network; (v) fraudulent and/or questionable activity. Publishers cannot refer themselves as a Publisher or as an Advertiser, and groups of Publishers cannot refer each other.

(c) Termination from Referral Program. BaselineNetwork reserves the right to terminate a Publisher's referral program at any time for any reason, including but not limited to fraudulent and/or questionable activity.

10. Indemnity.

Publisher will indemnify and hold Company, its parents, subsidiaries, affiliates, officers and employees, harmless, including costs and attorneys' fees, from any third party claim proceeding, suit, investigation or demand due to or arising in whole or in part out of Publishers's access to the Site, use of the Services, the violation of this Agreement by Publisher, or the infringement by Publisher/Advertiser, or any third party using the Publisher's or Advertiser's account, of any intellectual property or other right of any person or entity. Publisher agrees that BaselineNetwork will have sole and exclusive control over the defense and settlement of any such third party claim.

11. Limitations of Warranties and Liability

(a) Disclaimer of Warranties. ALL SERVICES PROVIDED BY BaselineNetwork ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BaselineNetwork MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. BaselineNetwork IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.

(b) Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL BaselineNetwork BE LIABLE TO PUBLISHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF BaselineNetwork HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL BaselineNetwork'S TOTAL OBLIGATIONS OR LIABILITY HEREUNDER EXCEED THE LESSER OF THE SPECIFIC ADVERTISING CAMPAIGN IN QUESTION OR TEN THOUSAND DOLLARS ($10,000.00). REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST BaselineNetwork MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.

(c) Consideration. PUBLISHER ACKNOWLEDGES THAT BaselineNetwork HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PUBLISHER AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO PUBLISHER.

12. Termination.

(a) Either party may terminate the Services at any time by notifying the other party by any means. BaselineNetwork may also terminate or suspend any and all Services and access to the Site immediately, without prior notice or liability, if Publisher breaches any of the terms or conditions of this Agreement. Any fees paid hereunder are non-refundable and non-cancelable. Upon termination of the Publisher's account, Publisher's right to use the Services will immediately cease and Publisher will remove all BaselineNetwork HTML code from Publisher's websites. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, indemnification provisions, warranty disclaimers, and limitations of liability.

13. Confidentiality

Each party agrees that it may provide the other with information that is confidential and proprietary to that party or a third- party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). BaselineNetwork's campaign rates are considered confidential. Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement. Confidential Information shall not be commingled with information or materials of others and any copies shall be strictly controlled. The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated confidential by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third-party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, or upon written request by BaselineNetwork, Publisher must destroy or return to BaselineNetwork any Confidential Information provided by BaselineNetwork under this Agreement.

14. Choice of Law and Attorneys' Fees

This Agreement is governed by the laws of the State of Georgia (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Atlanta, Georgia. The parties consent to such venue and jurisdiction, waive any right to a trial by jury, and agree to waive the personal service of any process upon them by agreeing that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the last address provided by Publisher. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs.

15. Entire Agreement and Modification

This Agreement, including exhibits, addenda, the BaselineNetwork Privacy Policy (as amended from time to time and which is incorporated herein by reference), contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, BaselineNetwork shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least five (5) days prior to the effective date of such Change. Publisher's continued use of the Network after the effective date of such Change shall be deemed Publisher's acceptance of the revised Agreement. No change, amendment, or modification of any provision of the Agreement by Publisher will be valid unless set forth in a written instrument signed by an executive of both Parties with the corporate authority to do so.

16. Notice

Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for BaselineNetwork, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: CEO and General Counsel, 450 Northridge Parkway, Suite 202, Atlanta, GA 30350 USA (effective upon actual receipt); and, (ii) for Publisher at the email or physical address listed on Your Account (effective upon sending as long as BaselineNetwork does not receive an error message regarding delivery of the email) or five (5) days after mailing).

17. Assignment

No rights or obligations under this Agreement may be assigned by Publisher without the prior written consent of BaselineNetwork. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. BaselineNetwork and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

18. Independent Contractors

Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.

19. Marketing

Publisher shall not release any information regarding Campaigns, Creatives, or Publishers relationship with BaselineNetwork or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of BaselineNetwork. BaselineNetwork shall have the right to reference and refer to its work for, and relationship with, Publisher for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of BaselineNetwork and Publisher.

20. Force Majeure

Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

21. Survival and Severability

Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.

22. Remedies and Waiver

Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

Definition of Terms Addendum

• "Ad" or "Creative" means the graphic or text file(s) provided to Publisher to market on behalf of Advertiser and/or BaselineNetwork.
• "Advertiser" means BaselineNetwork and/or the advertiser or advertising agency providing Ads to BaselineNetwork for use on Publisher's Website(s) as specified herein.
• "Approved Websites" means the Publisher's domain(s) and/or specific root URLs approved by BaselineNetwork.
• "BaselineNetwork Network" means BaselineNetwork's affiliated group of third-party Websites by which BaselineNetwork may insert Ads.
• "BaselineNetwork Code" means pixels, intellectual property or other computer code provided by BaselineNetwork for use by Publisher.
• "CPC" means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis as measured by BaselineNetwork.
• "CPM" means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis as measured by BaselineNetwork.
• "Click, Click-Thru or Click-Through" means the activation of a hyperlink using a mouse or other input device. The click-through is essential to the interactivity of online advertising.
• "Click-Through Rate" or "CTR" means the rate of activated ads to total ads displayed.
• "Impressions" means the number of times an Ad is served to, and received by, a unique visitor on Publisher's Website or other media as measured by BaselineNetwork.
• "Incentivized Traffic" means a Website where Ads are placed where Users have some sort of incentive to click through on Ads.
• "Network IP" means the Ads, BaselineNetwork Code or other intellectual property made available to Publisher in connection with its performance under this Agreement.
• "Prohibited Conduct" means conduct, during the course of performance of this Agreement that is listed or related to the proscribed conduct listed in Section 2.
• "Publisher Acceptance Email" means an email by BaselineNetwork clearly communicating acceptance to Publisher's Affiliate Network Application which also contains further instructions for Publisher regarding participation in the BaselineNetwork Network.
• "Publisher Media" shall mean the Website, search engine or other electronic media on which Publisher places Ads.
• "Unique Click" means the number of times, as recorded by BaselineNetwork's server, a User viewing Publisher's Media, as identified by a cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular User shall only be counted as a Unique Click once every 24-hour period.
• "User" means any person accessing Publisher Media.
• "Website" means an HTML document containing a set of information available via the Internet.