Master Campaign Agreement for Online Affiliates

(Last Updated 6.5.2019)

1. Introduction

1.1 This ”Master Campaign Agreement for Online Affiliates” (or “Agreement”) is between QVC, Inc. and its affiliates (“Advertiser”) and you (“Media Partner”) (each a “Party” and collectively the “Parties”) that enters into a performance marketing relationship using the Platform (as defined below) owned and operated by Impact Tech, Inc. (“Impact”) and hosted from the URL, www.impact.com. Schedule 1 attached hereto or as amended by written agreement of the Parties and each “EIO” (as defined below) are fully incorporated into the terms of this Agreement. In order to use the Platform, Advertiser and Media Partner must scroll down, read and agree to all the terms and conditions in this Agreement by clicking through on the button marked “Accept” below.

1.2 The Agreement is a framework agreement and does not commit either the Media Partner or the Advertiser to any specific terms of performance. Unless the Parties supersede or modify Schedule 1 (General Terms and Conditions), Schedule 1 shall also apply between the Parties. As used herein, Schedule 1 shall refer to the template Schedule 1 attached or (as applicable) its replacement. Each EIO and any modified Schedule 1 must contain commercially reasonable and industry standard terms, and terms that can be accommodated by the functionalities and capabilities of the Platform from time to time.

1.3 The Parties shall agree to specific terms of engagement in each individual “Electronic Insertion Order” (“EIO”). EIOs contain any supplemental terms and conditions agreed between the Advertiser and Media Partner and are created using the “Insertion Order” function on the Platform. The EIOs shall specify the “Actions” and qualifying parameters that entitle Media Partner to compensation from the Advertiser (“Payouts”). Impact shall not be a party to the Agreement, Schedule 1 and/or EIOs. The terms of the EIOs are strictly between Media Partner and Advertiser. Each executed Electronic Insertion Order together with the Agreement and Schedule 1 will constitute a separate contract between the Media Partner and the Advertiser. Please print a copy of these documents for future reference.

1.4 Entry into the Agreement, Schedule 1 and EIOs is subject to Media Partner and Advertiser each being and continuing to be a party to a contract with Impact permitting them to use the Platform.

1.5 Definitions.  The following capitalized expressions shall have the following meanings:

(a) Action(s) means the action(s) and/or transaction(s) specified in an EIO that when carried out by a person on or in relation to the Media Partner property entitle the Media Partner to payment by the Advertiser. Such action(s) and/or transaction(s) may include a page visit, sale, lead, subscription, call, click, download or any combination thereof and the qualifying parameters for such action(s) and/or transaction(s) must be stated in the EIO;

(b) Applicable Laws means all laws, rules, regulations and codes of practice applicable to the activities contemplated by the Parties under each EIO;

(c) Creative means all artwork, copy, data, text, models, graphics, messages, tags, designs, photographs, images, logos and other audio and/or visual content and material published on or used in connection with the Platform and EIOs;

(d) Platform means the Impact advertising tracking platform that facilitates performance advertising campaign relationships between the Advertiser and the Media Partner and tracks and acts as a payment system in relation to such relationships;

(e) Service(s) means the services provided by the Media Partner in the promotion and execution of each EIO.

2. Entering into Electronic Insertion Orders

2.1 Upon execution of an EIO, Media Partner may promote Advertiser in consideration for Payouts. The Parties acknowledge and agree that: either Party may propose an EIO in the “Insertion Order” section of the Platform interface and that the Platform’s functionality may then be used by the Parties to decline, retract or further modify an EIO before acceptance. EIOs become legally enforceable rights and obligations on the Parties upon acceptance. An EIO may only subsequently be varied by mutual written agreement of the Parties. If the Parties utilize other forms of insertion orders, Schedule 1 must reflect the Parties ability to do so and the Parties are responsible for implementing the appropriate settings on the Platform to conform with such agreed upon terms.

2.2 Media Partner makes no guarantee or representation that the Services will generate any Action(s). Advertiser makes no guarantee or representation that the Media Partner will be successful in earning any Payouts under any EIO where the terms are contingent upon pay-for-performance.

2.3 Maximum Spend Limits and Number of Action Caps.  The Parties acknowledge that the Advertiser in an EIO may set maximum spend limits and caps on the number of Actions that entitle the Media Partner to Payouts.

3. Term and Termination

3.1 EIOs.  Each individual EIO shall continue until the earlier of: (a) a Media Partner terminating the EIO using the Platform interface; (b) Advertiser terminating an EIO for convenience upon notice to Media Partner through the Platform interface; (c) Advertiser terminating when Advertiser’s budget has been met; (d) either Party terminating this Agreement or an EIO for breach by the other Party; (e) a Party terminating an EIO during the ‘Change Notification Period’ if the Party does not agree to the other Party’s proposed changes; (f) the date of expiration specified in the EIO; (g) Impact removes Media Partner/Advertiser relationship or terminates the EIO; or (h) a Party is no longer eligible to use the Platform. An EIO shall specify whether there is a cure period for breach prior to termination.

3.2 Consequences of Termination.  On the expiration or earlier termination of each EIO:

(a) the Media Partner shall refund the Advertiser any monies in relation to unfulfilled obligations that the Advertiser has paid the Media Partner in advance in relation to an EIO;

(b) the Advertiser shall remain obligated to compensate the Media Partner for Payouts earned prior to expiration or termination of the EIO; (c) the Media Partner shall immediately discontinue the provision of its Services and use of all content and material provided by Advertiser for use in connection with EIOs (“Creative”); (d) all licenses to the Creative granted to Media Partner by Advertiser shall terminate; and (e) each Party shall either destroy or promptly return to the other Party all copies in whatever medium of the other’s Confidential Information.

4. General

4.1 Force Majeure.  "Force Majeure" means circumstances beyond the reasonable control of a party, including but not limited to acts of God, war, terrorist action, fire, flood, governmental act, Internet or other telecommunications failure. Neither party shall be liable to the other party for any failure or delay in performing any of its obligations hereunder if such failure or delay is caused by the occurrence of an event of Force Majeure. If a party becomes aware of a Force Majeure event, such party shall immediately notify the other party in writing. If the event of Force Majeure continues period in excess of three (3) weeks, then either party may terminate this Agreement by written notice to the other party with immediate effect.

4.2 Entire Agreement.  This Agreement, Schedule 1, and each EIO represent the entire understanding and constitutes the entire agreement between the Parties in relation to their subject matter, supersedes any previous agreement between the Parties as to such subject matter, and may be amended only in writing and executed by duly authorized representatives of both Parties (which may be pursuant to Section 4.3). Each of the Parties shall acknowledge and agree that it has not relied on any representation or warranty other than those expressly set out in this Agreement, Schedule 1 and each EIO.

4.3 Electronic Signatures.  Each Party acknowledges and agrees that by clicking through acceptance of this Agreement, EIOs, and other clickthrough offers from the other Party on the Platform; each Party is submitting a legally binding electronic signature and entering into a legally binding contract. EACH PARTY HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PLATFORM. Further, each Party hereby waives any rights or requirements under any applicable statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of nonelectronic records, or to payments or the granting of credits by other than electronic means.

4.4 Severability.  If any provision in this Agreement, Schedule 1 or an EIO is, in whole or in part, held by a court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable under any enactment or rule of law then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this User Agreement shall not be affected. The parties shall in good faith attempt to modify any invalidated provision or part to carry out the Parties' stated intentions.

4.5 Survival.  All provisions that by their sense and context are intended to survive the termination or expiration of this Agreement, including any rights arising out of a breach of this Agreement, shall survive the termination or expiration of this Agreement.

4.6 Relationship of the Parties.  The relationship of the Parties is that of independent contractors and this Agreement does not create any association, partnership, joint venture or agency relationship between them. Neither Party shall have the power to bind the other or to create a liability against the other in any way.

4.7 Modification of Terms.  Advertiser may modify any of the terms and conditions contained in this Agreement or Schedule 1 at any time in its sole discretion upon written notice.  Any such modifications shall not operate to modify Media Partner’s obligations with respect to any EIOs then in effect. If any such modification to this Agreement or Schedule 1 is unacceptable to Media Partner, Media Partner’s sole recourse is to terminate this Agreement.   Media Partner’s entry into any EIO following notification to Media Partner of such modification will constitute binding acceptance of the change.

4.8 Headings. The headings used in this Agreement are for convenience only and shall not be used to interpret or construe any of its provisions.

4.9 Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

Schedule 1

General Terms and Conditions

This Schedule 1 applies as between Advertiser and Media Partner unless superseded in whole or part by written agreement of the Parties.

1. General Terms.

1.1 Any defined terms used in each EIO shall (unless otherwise stated) have the same meaning as set out in the Agreement or this Schedule 1.

2. Intellectual Property and Confidential Information

2.1 License.  For the purposes only of the Media Partner providing its Services to Advertiser pursuant to the Agreement and this Schedule 1, the Advertiser grants to the Media Partner (and its permitted users) for the duration of each EIO a nonexclusive, nontransferable, worldwide, royalty free license to use the Creative supplied by the Advertiser through the Platform to the extent necessary only for the Media Partner to perform its obligations under each EIO and in accordance with the Creatives Use Guidelines attached hereto as Exhibit A.  Media Partner may not modify any Creative.

2.2 Proprietary Property.  All Intellectual Property and information, supplied or developed by Advertiser shall be and remain the sole and exclusive property of Advertiser. Upon termination of this Agreement, Media Partner shall, upon request of Advertiser, return to Advertiser any and all such property and information.  Advertiser reserves all rights and licenses not expressly granted to Media Partner in this Agreement.

2.3 Promotional Methods.  Media Partner must promote Advertiser using only those methods approved or prescribed by the Advertiser. Unless explicitly authorized in an EIO, Media Partner shall not promote an Advertiser using the following means:

(a) provision of leads obtained other than through intended consumer (“End User”) action (e.g., through the use of phone books, or similar such compilations of personal data);

(b) use of fake redirects, automated software, or other mechanisms to generate Actions; or

(c) Actions that are caused that are not in good faith, such as those using any device, robot, iframes or hidden frames. If Media Partners intend to use incentives to promote Advertiser and procure clicks, leads or sales, Media Partner is required to notify Advertiser prior to executing an EIO with Advertiser, and Media Partner’s use of incentives must be in a bona fide way.

2.4 Misuse of Creative.  Media Partner shall comply with the attached Creatives Use Guidelines and any subsequent instructions provided by Advertiser in placing Advertiser’s Creatives on the Media Partner property. The Parties acknowledge and agree that if the Advertiser notifies Media Partner of misuse of its Creative by the Media Partner then the Media Partner shall take immediate corrective action.

2.5 Prohibited Activities.  Media Partner agrees not to undertake or engage in the following practices: (i) use or otherwise incorporate the words QVC, HSN or variations in the domain name(s) of Media Partner’s properties; (ii) make any representations, either express or implied, or create an appearance that a visitor to Media Partner’s property is visiting an Advertiser property; (iii) use the Creatives on any Media Partner property not permitted by the EIO;  (iv) use any mark, name or domain name of any type which is confusingly similar to Advertiser’s trademarks or logos;  (v) send e-mail that referring to Advertiser, advertising any Advertiser product or linking to Advertiser’s website without the prior written approval of Advertiser; (vi) engage in any activity that adversely affects the ability of other individuals or systems to access or use Advertiser’s website or other properties, or any connected system, network, or service, including without limitation the excessive consumption of network or system resources, whether intentional or unintentional; (vii) scrape any data or information from Advertiser’s websites, or use any third party software to collect information through Advertiser’s properties about other vendors, accounts, or service usage patterns; (viii) engage in fraud or other conduct calculated to generate Payouts not earned by Media Partner;  (ix) disclose to third parties, as a subset of the users of Media Partner’s properties, the identities of users who access Advertiser’s properties through the Advertiser’s Creatives on Media Partner’s properties; (x) purchase any keywords or search terms from the operator of any search engine that comprises or contains any  trademark, service mark or brand name of Advertiser or its affiliates or other mark confusingly similar thereto; or (xi) solicit or target users who access Advertiser’s properties from Media Partner’s properties for any promotions or offerings of goods or services that compete with the goods or services offered by Advertiser on the basis of such users accessing  Advertiser’s properties through the Advertiser’s Creatives on Media Partner’s properties; provided that this clause (xi) does not prohibit  Media Partner from soliciting or targeting a group of all or substantially all users who access the Media Partner property on which Advertiser’s Creative is displayed.

2.6 Sub-affiliates of Media Partner.  If Advertiser has provided prior approval in writing, Media Partner may promote Advertiser through a sub-affiliate network; provided, however, that Media Partner (i) must be completely transparent with regards to where traffic from its sub-affiliates originated, and (ii) must ensure that all sub-affiliates promoting Advertiser adhere to and comply with all terms and conditions set forth in the Agreement, Schedule 1 and each EIO. Media Partner shall be fully responsible to the extent that any such sub-affiliate does not adhere to or comply with such terms and conditions.

2.7 Intellectual Property.  “Intellectual Property” means trade marks (whether registered or unregistered together with all goodwill in connection thereto), unregistered and registered designs, copyright, database rights, rights in computer software, domain names, rights in confidential information and all other intellectual property rights (whether now subsisting or in the future created) both in the USA and all other countries of the world for the full period of those rights (including any extensions and renewals). All Intellectual Property existing prior to the commencement date of each EIO shall belong to the Party that owned such rights immediately prior to such date. Each Party acknowledges and agrees that it shall not acquire or claim any title to the other Party’s Intellectual Property.

2.8 Confidential Information.  "Confidential Information" means all confidential information and data of whatever nature, whether in tangible or intangible form such as trade secrets, financial, and technical information, customers, prices, discounts, and margins. A party receiving Confidential Information ("Receiving Party") from the other party ("Disclosing Party") agrees to (a) hold all Confidential Information in confidence and protect it with the same degree of care with which the party protects its own Confidential Information; (b) use such Confidential Information only for the purposes of this Agreement and as permitted by this Agreement; (c) not copy or otherwise duplicate such Confidential Information, except for the purpose of this Agreement; and (d) restrict disclosure of such Confidential Information solely to those employees and agents with a need to know such Confidential Information for the purposes of this Agreement, who are told of its confidentiality and who are bound in writing to protect the same. The foregoing obligations shall not apply to any information designated as confidential if, prior to any release of such information, such Confidential Information: was already known to it, free of any obligation to keep it confidential; is or becomes publicly known through no wrongful act of the Receiving Party; was received from a third party without any restriction on confidentiality; was disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or is approved for release by prior written authorization of the Disclosing Party. If the Receiving Party receives a request pursuant to a court order, governmental body request or other legal process to disclose the Disclosing Party's Confidential Information, the Receiving Party shall promptly notify the Disclosing Party and reasonably assist the Disclosing Party in obtaining a protective order requiring that any portion of the Confidential Information required to be disclosed be used only for the purpose for which a court issues an order or as otherwise required by law. Each party shall bear its own legal expenses in connection therewith.

2.9 Data Ownership.  Media Partner hereby grants to Advertiser a perpetual, nonexclusive, royalty-free right to use and copy any information that Media Partner furnishes to Advertiser, whether directly or through Impact.  Media Partner  hereby authorizes Impact to share with Advertiser any data provided by Media Partner to Impact related to Media Partner’s performance of the Agreement, Schedule 1, and each EIO.  Advertiser shall solely own all right, title and interest, including all Intellectual Property, in and to any data that Advertiser provides to Media Partner.

3. Payouts

3.1 Tracking Actions and Calculating Payouts.  Unless an EIO states otherwise, all tracking and payment processing facilities in relation to the tracking of Actions and calculation of Payouts shall be provided by Impact. Impact shall aggregate payments due from Advertisers to the Media Partner and make payments to the Media Partner in accordance with each EIO. If tracking is disabled as a result of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Media Partner, then the Advertiser shall be obliged to pay Payouts on a fair and reasonable basis taking into account appropriate factors.  Advertiser has the right to accept or reject for any reason in its sole discretion any order for products, and quantities of products offered for sale by Advertiser on Advertiser properties may be limited.  Media Partner acknowledges and agrees that (a) Impact is solely responsible to pay all Payouts earned by Media Partner under the Agreement, Schedule 1, and each EIO, regardless of the type of Action that generated the Payout, and (b) once Advertiser has paid Impact the amount of the Payout due to Media Partner for an applicable time period and the fees due to Impact for its services, then Advertiser shall have no further obligation to Media Partner in respect of such amounts, and Media Partner agrees to look solely to Impact for payment of such Payouts and to assume the risk of non-payment of such Payout by Impact.

3.2 Chargebacks.  An Action can be cancelled or returned by the Advertiser (“Chargeback”) if:

(a) the Action is incomplete; (b) if a customer has cancelled or returns an Action; (c) if the Action has been made fraudulently or in an otherwise non bona fide manner; (d) if the Action is carried out by a person who is outside the area serviced by the Advertiser; or (e) if the Advertiser is unable to ship goods to a customer in relation to the Action. Each EIO shall state the period of time within which the Advertiser may apply a Chargeback.

3.3 Sale Actions.  Where Payouts are based on Actions that are sales of products or services at an Advertiser property, then (i) whether as a percentage commission of such sale or a fixed amount, no Payouts shall be due for products or services, unless the products and services have been ordered from Advertiser, such order has been accepted by Advertiser, fully paid for, delivered to the customer, accepted by the customer and not returned to Advertiser, and (ii) where Payouts are designated as a percentage amount of a sale made by Advertiser, such amount shall be equal to the total net retail dollar amount actually received by Advertiser, excluding any discounts, chargebacks, bad debts, taxes, shipping and handling charges, and insurance charges.

3.4 Lead Actions.  Where Payouts are based on Actions involving the generation of leads provided to Advertiser, Media Partner acknowledges and agrees that Advertiser shall have no obligation to make more than one (1) Payout for (a) an individual or a household, regardless of the number of leads generated by such individual or household, or (b) for leads having a common billing address or email address.  Advertiser shall have no obligation to pay any compensation for leads who are minors, who have billing addresses outside the United States, or whom Advertiser determines are engaged in fraudulent activity.   Unless otherwise expressly set forth in an EIO, Advertiser has no obligation to make any Payouts for leads unless Advertiser determines, in its sole discretion, that it had no prior knowledge of such lead from any source, and for which Advertiser receives as part of such Action full, valid and accurate information with respect to, at minimum, name, complete billing street address in the United States, email address and telephone number.  

3.5 Click Actions.  Where Payouts are based on Actions involving a click on an Advertiser Creative on a Media Partner property, Media Partner shall not receive any Payouts with respect to clicks that Advertiser reasonably believes are fraudulent or Not Genuine.  “Not Genuine” means fraudulent or bogus clicks, including clicks that Advertiser and Impact are unable to verify.  An unusual increase in traffic from a Media Partner property to the Advertiser’s property, combined with a material decrease in conversion rate at Advertiser’s property from such visits, shall be a factor in the determination whether clicks are Not Genuine.

3.6 No Multiple Payouts.  Where a Payout is made to Media Partner based on one type of Action at an Advertiser property, then, unless otherwise expressly provided in an EIO, no Payout shall be due or payable to Media Partner for any other type of Action in connection with a visitor accessing, using, providing information or making a purchase at the Advertiser property that is in any way associated with or related to the Action upon which such Payout was made.

4. Representations, Disclaimers and Indemnification

4.1 Representations and Warranties.

(a) Each Party warrants, represents and undertakes to the other Party in relation to the Agreement, Schedule 1, and each EIO that:

(i) such Party has the full power and authority to carry out the actions contemplated under the Agreement, Schedule 1, and each EIO;

(ii) such Party’s entry into and performance of its obligations under the terms of the Agreement, Schedule 1, and each EIO shall not infringe the rights of any third party or cause such Party to be in breach of any obligations to a third party;

(iii) in relation to all EIOs and at all times in using the Platform, such Party shall comply fully with any and all Applicable Laws and all applicable advertising, marketing, and consumer laws, regulatory requirements and codes of practice applicable to such Party’s performance of the Agreement, Schedule 1 or an EIO.

(b) The Media Partner represents and warrants to the Advertiser that, if Media Partner is a natural person, Media Partner is an adult over the age of 18; the Services shall be performed in a professional manner and with reasonable skill and care; that there is no pending or, to the best of Media Partner’s knowledge, material threatened claim, action, or proceeding against Media Partner or any sub-affiliate of Media Partner, with respect to the execution, delivery or consummation of the Agreement, this Schedule 1,  or any EIO, and, to the best of Media Partner’s knowledge, there is no basis for any such claim, action, or proceeding; and that the Media Partner’s properties shall not: (i) contain or promote content that is misleading, deceptive, libelous, defamatory, obscene, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or targeted at children under the age of 13, offer any goods or service in violation of Applicable Laws, or link to third party website(s) that do so; (ii) engage in the sale or promotion of pornography, tobacco products, gambling, or in any illegal activity or in the disparagement of any individual group on the basis of age, color, national origin, race, religion, gender, sexual orientation or physical or mental handicap; (iii) engage in spamming, indiscriminate advertising or unsolicited commercial e-mail; or (iv) be based outside of the United States.

(c) Except as expressly set forth herein, Advertiser makes no express or implied warranties or representations with respect to the Creatives, Advertiser’s properties or advertising campaigns or the products and services offered on Advertiser’s properties, including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of course of performance, dealing, or trade usage. In addition, Advertiser makes no representation that the operation of its properties will be uninterrupted or error free, and Advertiser will not be liable for the consequences of any interruptions or errors.

4.2 Indemnification.  Subject to Section 4.3, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of the Agreement, Schedule 1 or an EIO and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.

4.3 Limitations of Liability.

(a) NOTHING BELOW SHALL OPERATE TO EXCLUDE OR LIMIT LIABILITY FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS (TOGETHER THE "EXCLUDED LOSSES").

(b) EXCEPT IN RESPECT OF THE EXCLUDED LOSSES, THE LIABILITY OF EACH PARTY TO ANY OTHER PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY, MISREPRESENTATION OR OTHERWISE) OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION OR OTHERWISE ARISING BY REASON OF OR IN CONNECTION WITH THE AGREEMENT, SCHEDULE 1, AND EACH EIO SHALL BE LIMITED TO THE PAYOUTS FEES PAID BY ADVERTISER TO MEDIA PARTNER THROUGH IMPACT DURING THE THREE MONTH PERIOD PURSUANT TO THE EIO FROM WHICH THE CLAIM OR LIABILITY ARISES.

(c) EXCEPT IN RESPECT OF THE EXCLUDED LOSSES, NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY: ANY LOSS OF ACTUAL OR POTENTIAL PROFITS, CONTRACTS OR CUSTOMERS; LOSS OF DATA AND UNDERTAKING DATA OR OTHER RESTORATION; LOSS OF REPUTATION; ANY OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE.

5. General

5.1 Waiver of Remedies.  No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an EIO shall prejudice or restrict the rights (whether provided by this Agreement, an EIO or by law) of that Party, nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under the Agreement, Schedule 1, an EIO or at law) and each such right, power or remedy shall be cumulative.

5.2 Assignment.  Either Party may assign any or all of its rights under the Agreement, Schedule 1, or an EIO, or transfer or subcontract any or all of its obligations under the Agreement, Schedule 1, or an EIO, upon notification to the other Party, subject to the nonassigning Party’s right to terminate.

5.3 Audit rights.  Each Party agrees to maintain adequate books and records relating to its compliance with the terms of the Agreement, Schedule 1, and each EIO during the term of the Agreement, Schedule 1, and an EIO and for a period of one (1) year thereafter. Copies of such records shall be made available to the other Party upon written request. An officer of the Party supplying the records shall certify the authenticity of the copies. Any audits will be performed during normal business hours and will not unreasonably disrupt the audited Party’s business. The inspecting Party shall have the right to conduct such an audit upon at least 10 (ten) business days advance notice. If any such audit discloses that the Advertiser has underpaid the Media Partner, such underpayment shall be promptly paid by the Advertiser to the Media Partner and, if the amount of such underpayment is greater than 5% of the amount that was due, the Advertiser shall be responsible for paying the costs of such audit. If any such audit discloses amounts that the Media Partner should not have been paid by the Advertiser, such incorrectly paid amounts shall be promptly repaid by the Media Partner to the Advertiser and, if the amount of such incorrectly paid amounts is greater than 5% of the total that should have been paid, the Media Partner shall be responsible for paying the costs of such audit.

5.4 Notices.  All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform. All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally, by certified mail, or by commercial overnight delivery (or by airmail if overseas), and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.  A notice to Advertiser shall be addressed to Vice President Performance Marketing, with a copy to the General Counsel of Advertiser.

5.5 Governing Law and Venue.  Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1, and each EIO shall be governed by the laws of the state of Delaware, without regard to conflict of law principles.  The United States District Court for the District of Delaware and the state courts in New Castle County, Delaware have exclusive jurisdiction over, and are the exclusive venue for, any matter arising out of or related to this Agreement.

5.6 Privacy Policy.  Media Partner shall develop and maintain a privacy policy that complies with Applicable Laws and shall accurately describe the information collection and use practices of Media Partner’s properties.

5.7 No Exclusivity. Each party acknowledges and agrees that this Agreement is not exclusive and that (a) Advertiser may at any time (directly or indirectly) solicit customer referrals from third parties on terms that may differ from those contained in this Agreement, (b) Media Partner may display advertisements for competitors of Advertiser, and (c) either Party may operate websites or other properties that compete with the other Party’s websites or other properties.

5.8 Public Announcement.  Media Partner may not refer to Advertiser in a press release or other public statement (other than the Creatives displayed on Media Partner’s properties) without the prior written consent of Advertiser, which it may withhold in its sole discretion.

END OF SCHEDULE 1 TERMS & CONDITIONS

Exhibit A

Creatives Use Guidelines

The Creatives provided by Advertiser to Media Partner may only be used pursuant to the guidelines set forth in this document.   Any other use is strictly prohibited.

1. The Creatives may not be used in any manner that might imply that any goods, services, web sites, publications or other materials that do not originate from Advertiser are sponsored, endorsed, licensed by, or affiliated with Advertiser.

2. The Creatives may be displayed solely on Media Partner’s property as a link to Advertiser’s website and for no other purpose.

3. Media Partner must display on its website its own logo(s), business name, product names, or other branding in a primary and more prominent position than that of Advertiser’s Creatives.

4. The Creatives may not be imitated in any manner.

5. The Creatives may not be used in a manner that would disparage Advertiser or its products or services.

6. The Creatives must be used as provided by Advertiser, with no changes, including but not limited to separating the words, changing the typeface, adding or deleting words, changing colors, adding taglines, changing the line or letter spacing, or changing the aspect ratio. The Creatives may not be animated, morphed, or otherwise distorted in perspective or appearance.

7. Media Partner shall maintain a reasonable clearance between the Creatives and other elements on its website.

8. The Creatives may not be combined with any other object, including but not limited to other creatives, words, graphics, photos, slogans, numbers, design features, or symbols.

9. The Creatives must not be incorporated or used in any manner as part of, or in close proximity to another company's name, domain name, product or service name, logo, trade dress, design, slogan, or other trademarks.