PAY-PER-CLICK ADVERTISING AFFILIATE AGREEMENT

I. RECITALS

This Agreement is made with reference to the following facts:

A. RsFeed is a pay-per-click marketing company which operates a network of Advertisers (as that term is defined below) and affiliates such as Affiliate. Affiliate owns and operates the Affiliate Site(s) (as that term is defined below) capable of displaying RsFeed’s Listings (as that term is defined below).

B. RsFeed and Affiliate wish to enter into this Agreement for mutual profit to display RsFeed’s Listings on the Affiliate Site(s) in accordance with the provisions of this Agreement set forth below.

Now, therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows:

II. DEFINITIONS


(a) “Advertiser” means a person or entity that wishes to advertise and promote its products, services, or web site that has entered into an agreement with RsFeed to use RsFeed’s pay-per-click marketing services to steer Users to that person or entity’s advertising content and/or web site, and to pay for Verified Clicks that are not Invalid Clicks on a pay-per-click basis.


(b) “Agreement” means this Pay-Per-Click Advertising Affiliate Agreement.


(c) “Affiliate” means the individual or entity that is a party to this Agreement with RsFeed and: (a) if Affiliate is an individual, his or her name and address are set forth in the opening paragraph hereof and in the signature block hereof, below his or her signature; and (b) if Affiliate is an entity, its name, jurisdiction where it is organized, and address appear in the opening paragraph hereof, and the signature of its authorized agent appears in the signature block hereof, below.


(d) “Affiliate Site(s)” means web sites owned, managed, and/or controlled by an Affiliate on which Affiliate will place and display the Listings in accordance with the provisions of this Agreement.


(e) “Clickthrough Rate” means the number of clicks on a Listing divided by the number of times it is shown, expressed as a percentage.


(f) “Effective Date” means the last date that all parties have executed this Agreement.


(g) “RsFeed” means RsFeed Ltd., located at 306 Victoria House, Victoria, Mahe, Seychelles

(h) “Invalid Clicks” means clicks on RsFeed’s Listings that are determined to be invalid by RsFeed or an Advertiser using methods available to RsFeed and its Advertiser, including, but not limited to, proprietary software and click tracking systems. Without disturbing the generality of the foregoing, Invalid Clicks include, but are not limited to, clicks that: (a) are generated using, bots, automated web crawlers, click generating scripts, or other automated processes that are not the result of the direct action of a User; (b) are made for a fraudulent purpose; (c) are made by malicious software; (d) are generated as a result of auto-spawning of browsers or automated redirects; (d) are generated using hacking techniques or tools, including, but not limited to, multiple clicking scripts, iframe hacks, Java script hacks, IRC cheats, and cookie-stuffing; (e) have been made as a result of any incentive program offering cash, credits, or loyalty points; (f) have been generated from blocked IPs, blocked referrers, cached clicks, or by hijacking a User’s browser; and/or (g) are generated from outside the Territory.

(i) “Listings(s)” means a text or image based link to a website, generated by RsFeed using its proprietary listing delivery technologies and methods, connecting to the web address of a target Advertiser that has entered into an advertising agreement with RsFeed. Each Listing includes title, description, advertiser URL (universal resource locator) and linking services that are provided by RsFeed to Affiliate pursuant to this agreement.


(j) “Query” means a search for Listings made by the direct action of a User using an internet search box yielding results that are Listings supplied by RsFeed and placed on an Affiliate Site in accordance with this Agreement.


(k) “Substandard Traffic” means User Traffic for which the Clickthrough Rate falls below current industry standards.


(l) “User” means a natural person viewing or otherwise using an Affiliate Site, who may make a Query or make a Verified Click.


(m) “User Traffic” means the flow of clicks made on Listings originating from an Affiliate Site, including legitimate Verified Clicks, as well as clicks that may be determined to be Invalid Clicks by RsFeed in accordance with the provisions hereof.


(n) “Verified Click(s)” means a click made through the direct action of a User on a Listing displayed on an Affiliate Site, which listing directs the User’s web browser to the advertising content and/or website of an Advertiser using RsFeed’s proprietary software code, tools, technology and/or processes. Each such click, in order to be deemed a Verified Click, must: (a) be logged by RsFeed’s proprietary click tracking system; (b) must originate from within the Territory; and (c) must not be determined by RsFeed to be an Invalid Click.


(o) “Term” means as defined in Section 7 of this Agreement.


(p) “Territory” the geographical territory comprising _____________ from which RsFeed accepts User click traffic in accordance with its affiliate compensation policies and the provisions of this Agreement.


III. TERMS AND CONDITIONS OF THE AGREEMENT.


1. Payment Share of Revenues. RsFeed shall pay the Affiliate a share of the revenues it collects from its Advertisers for each Verified Click, equal to sixty percent (60%) of the total gross revenues earned per click, all as reported by RsFeed’s click tracking system. RsFeed shall have no obligation to pay Affiliate for Invalid Clicks, or for any User Traffic that does not result in RsFeed’s collecting pay-per-click payments from an Advertiser, or for any User Traffic the payment for which has been subject to clawback type refunds or credit card chargebacks. The payment share of revenues payable to Affiliate may be increased or reduced from time to time by RsFeed, within its sole discretion, such changes effective upon written notice to Affiliate. In the event Affiliate receives notice from RsFeed of a reduction in the percentage share of revenues payable to Affiliate, Affiliate shall have the right to terminate this Agreement on seven (7) days written notice to RsFeed.


2. Adjustments.

(a) RsFeed reserves the right to adjust the payment share of revenues accruing to Affiliate under the provisions of Section 1 hereof in the event RsFeed determines that: (1) all or a portion of the pay-per-click transactions forming the basis of that payment share of revenues are Invalid Clicks; (2) the occurrence of Invalid Clicks has resulted in chargebacks for credit card fraud and/or in mandatory clawback type refunds to Advertisers; (3) the User Traffic originating from an Affiliate Site has been poor quality Substandard Traffic; (4) the clicks comprising User Traffic originating from an Affiliate Site were made by Users outside the Territory; (5) the User Traffic information collected from an Affiliate Site is insufficient or unavailable, leaving RsFeed unable to conduct or complete tracking of such User Traffic. The amount of the adjustment shall equal the amounts paid or payable to Affiliate pursuant to the provisions of Section 1 hereof in connection with User Traffic determined to comprise Invalid Clicks, or to be effected by the other problems described in subparagraphs (1) through (5) hereof.


(b) Affiliate understands that RsFeed conducts monitoring of Affiliate Sites and of User Traffic and conducts investigations from time to time to identify the presence of Invalid Clicks or other issues or problems relating to User Traffic originating from an Affiliate Site. Affiliate shall, upon request of RsFeed, cooperate in any investigation conducted by RsFeed of any such issue or problem by providing to RsFeed relevant data, records, and information regarding User Traffic originating from an Affiliate Site. Any finding or determination made by RsFeed regarding the presence of Invalid Clicks or other issues or problems with the User Traffic, as described in Section 2(a) hereof, shall be deemed conclusive and binding on Affiliate, so long as such determination is made in good faith and in a non-arbitrary manner.


(c) RsFeed reserves the right to require that Affiliate immediately cease displaying Listings and to suspend performance under this Agreement in the event RsFeed determines, in its sole discretion, that an Affiliate Site has generated excessive numbers of Invalid Clicks, low quality User Traffic, that Affiliate has materially breached the provisions of this Agreement, and/or that Affiliate is employing fraudulent or otherwise illegal (under applicable law) business practices, including, but not limited to, violations of applicable anti-spam laws, spyware, malware, and other similar methods.


3. Credit Terms. All payments for Valid Clicks accruing to Affiliate under this Agreement shall be made within thirty (30) days after the last date of the month in which a Valid Click occurred.


4. Tracking of Revenues.

(a) RsFeed shall make reasonable efforts to conduct tracking of the revenues resulting from User Traffic attributable to Affiliate using its proprietary methods and tools. RsFeed will provide Affiliate with access to tracking results relating to such User Traffic in accordance with its regular policies, which may be in the form of an online report, or series of periodic reports, or a dynamically updated web page, containing relevant tracking information relating to Affiliate’s earned revenues. The User Traffic information may include records of clicks, “impressions” (instances when an ad is downloaded by a user when viewing a web page), and revenue generated for each reporting period. Such access will be provided on an “as is” basis and Affiliate shall have no claim whatsoever against RsFeed on account of errors in accuracy or completeness of the tracking information provided, or on account of temporary interruptions in access to such information.

(b) In the event Affiliate believes that a material reporting error has occurred based on a discrepancy between the information contained in tracking reports supplied by RsFeed in accordance with this Section 4 hereof and Affiliate’s records, Affiliate shall promptly notify RsFeed of such material errors no later than thirty (30) calendar days after the date such information has been made available by RsFeed to Affiliate. Affiliate’s failure to report apparent errors within thirty (30) calendar days in accordance with the provisions hereof shall be deemed an acceptance of the completeness and accuracy of the information contained in its tracking reports. RsFeed shall investigate error reports made timely by Affiliate and respond within _____ calendar days by correcting any confirmed and accepted errors, or notifying Affiliate of having made the determination that no error has occurred and/or that no correction is required. Any remaining disputes between the parties hereto relating to the completeness and accuracy of reports after RsFeed has issued its response shall be resolved in accordance with the provisions of Sections 16 and 17 hereof.


5. Limited License. Subject to the provisions of this Agreement, RsFeed hereby grants to Affiliate a limited, revocable, non-exclusive, worldwide license during the Term and any Extension Term to publicly display Listings in electronic form on the Affiliate Site(s) and to use any proprietary tools, software, scripts, or code that may be provided by RsFeed to Affiliate for the purpose of facilitating the transactions between the parties hereto contemplated by this Agreement.

6. Restrictions on Use. The limited license granted in Section 5 hereof, above, is conditioned upon Affiliate’s observance of the following restrictions: (i) except as expressly permitted herein, Affiliate will not display, use, reproduce, cache, store, distribute, make derivative works of, modify, sell, resell, rent, license, sublicense, transfer, assign, or redistribute in any way the Listings; (ii) Affiliate will not alter, modify, add to, edit, or delete the URLs or titles contained in any Listings without RsFeed’s prior written approval; (iii) Affiliate will not display, sublicense, or syndicate Listings on or to any third party or web site other than an Affiliate Site without RsFeed’s prior written approval; (iv) Affiliate will not display any Listings on any adult-oriented web sites without the prior written approval of RsFeed; (v) Affiliate will not display any Listings on any web sites that contain material deemed to be illegal for any reason under applicable law, or that violates the rights of any third parties; and (vi) Affiliate will not display any Listings, or allow any third parties to display any Listings using malware, adware, spyware, e-mail, or any method that violates applicable laws; (vii) Affiliate may not display any Listings using any of the following distribution sources: e-mail, pop-ups, pop-unders or adware without RsFeed’s prior written, signed consent. Affiliate shall monitor the activities of Affiliate Sites on a regular basis to ensure compliance with the restrictions set forth above and the grant of limited license made in Section 5 hereof. Affiliate shall discontinue the use of Listings upon written request of RsFeed in the event RsFeed determines that Affiliate’s use of the Listings on any Affiliate Site is in material violation of any of the terms and conditions of this Agreement or the Distribution Agreement.


7. Term,Termination, and Suspension.

 

(a) The term of this Agreement (the “Term”) shall be one (1) year, beginning on the Effective Date, and shall automatically renew for successive one year periods, unless either party gives written notice to the other party of its intention not to renew this Agreement at least thirty (30) days prior to the expiration of the then-current term or renewal term.

 

(b) RsFeed may terminate this Agreement at any time for any reason within its sole discretion upon fourteen (14) calendar days prior written notice to Affiliate.


(c) RsFeed may suspend performance under this Agreement immediately on notice to Affiliate in the event RsFeed determines that Affiliate has materially breached the provisions of this Agreement, and/or that Affiliate is employing business practices that are fraudulent or otherwise illegal under applicable law, until such time as the material breach has been cured or the fraudulent or otherwise illegal conduct has been discontinued by Affiliate.

 

8. Effect of Termination. Each party hereto shall, within forty-five (45) days following the expiration or termination of this Agreement, pay to the other party all sums that are due and owing as of the date of expiration or termination. Each party hereto shall, upon the expiration or termination of this Agreement for any reason, immediately discontinue the use of the other party’s trademarks, proprietary information, Listings, other intellectual property (including derivative works or modifications thereof) and Confidential Information in any manner whatsoever, and shall destroy or return (at the option of the other party), any such items to the other party, and shall provide the other party with an officer’s certificate attesting to such return or destruction.

 

9. Intellectual Property Rights.

(a) RsFeed will retain all right, title, and interest in and to the Listings, all data generated by RsFeed’s click tracking system and other proprietary tools, software, and code, and all associated intellectual property and proprietary rights worldwide, including, but not limited to, ownership of all of RsFeed’s copyrights, trademarks, patents, derivative works, modifications, lists of advertisers and information, algorithms, taxonomies, trade secrets and other intellectual property rights therein.


(b) Affiliate will retain all right, title, and interest in and to Affiliate’s intellectual property and each Affiliate Site (but excluding the Listings), including, but not limited to, ownership of all of Affiliate’s copyrights, trademarks, patents, derivative works, modifications, lists of advertisers, algorithms, taxonomies, trade secrets and other intellectual property rights therein.


10. Non-exclusivity. Nothing contained in this Agreement shall be deemed or construed to prohibit either party hereto from participating in arrangements similar as those described in this Agreement with others, so long as, in doing so, such party does not violate the confidentiality and proprietary information protection provisions set forth in Section __ hereof.


11. Confidentiality.

(a)         “Confidential Information” means information about the disclosing party’s business, products, technologies, strategies, advertisers, financial information, operations, or activities that is proprietary and confidential, including, without limitation, all business, financial, technical, and other information disclosed by the disclosing party. Confidential Information of RsFeed includes, but is not limited to, tracking information and data provided by RsFeed to Affiliate, any information designate by RsFeed as confidential or secret, and any information proprietary to RsFeed that gives it a competitive advantage or the opportunity to obtain a competitive advantage. Confidential Information does not include information that the receiving party can establish: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party.

 

(b)        Each party hereto covenants and agrees that: (i) that it will not use or disclose to any third party any Confidential Information disclosed to it by the other party except as expressly permitted by the provisions of this Agreement and required to render performance hereunder, or as may be required by a court of law with jurisdiction over the parties, or as may otherwise compelled to be disclosed pursuant to the legal process or existing laws or regulations, and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.


(c) In the event of a material breach by either party hereto of any of the covenants contained in this Section 11 hereof by a party hereto, damages are an inadequate remedy because any such material breach will cause the nonbreaching party irreparable injury and damage. Each party hereto therefore agrees that, in the event of a breach or anticipated material breach of the provisions of this Section 11 (and all subsections) hereof, the nonbreaching party shall be entitled to seek injunctive and equitable relief in addition to all other remedies available to it at law.


12. Warranties and Disclaimers.

(a) RsFeed warrants that it has obtained the right to distribute and make available the Listings to Affiliate in accordance with the provisions of this Agreement. Except as specifically provided herein, RsFeed does not guarantee or make any representations or warranties whatsoever: (i) with respect to the completeness of any Listings, or information accessed through such Listings or through the links embedded therein; or (ii) with respect to the content of the web sites accessed through the Listings or links embedded therein.


(b) RsFeed DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE USE OF ITS LISTINGS OR ANY OTHER SERVICES PROVIDED IN CONNECTION WITH OR IN ADDITION TO ITS LISTINGS WILL BE UNINTERRUPTED, UNDISRUPTED, OR FREE OF ERRORS.


(c) Affiliate represents and warrants that its display of Listings does not and will not violate any provision of this Agreement.


(d) RsFeed does not endorse any information provided through the Listings. Affiliate agrees and acknowledges that RsFeed has no obligation to verify the contents of any website that may be reached by clicking on any Listing and RsFeed expressly disclaims any responsibility to verify such content. ALL CODE AND CONTENT ARE PROVIDED HEREUNDER ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ANY KIND OR NATURE WITH RESPECT TO THE NATURE, RELIABILITY OR ACCURACY OF THE CODE OR CONTENT OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

13. Indemnification. Each party hereto will indemnify, defend, and hold harmless the other party, its officers, directors and employees from any and all third party claims, liability, damages, expenses and/or costs arising from the other party’s breach of any warranty set forth in Section 12 of this Agreement. All such amounts will be reimbursed to the indemnified party as incurred, within thirty (30) days of submission of reasonable supporting documentation or invoices to the indemnifying party. Each party’s obligation to indemnify is conditioned upon the other party providing prompt notification of any and all such claims, unless the failure to notify does not materially and adversely affect the defense. The indemnified party will reasonably cooperate with the indemnifying party in the defense and/or settlement thereof. The indemnified party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at the indemnified party’s sole cost and expense.


14. Limitation of Liability. Except as provided in Section 13 hereof, no party hereto be liable to the other for any special, exemplary, indirect, incidental, or consequential damages of any nature whatsoever, whether based on breach of contract, tort (including negligence) or otherwise, whether or not that party has been advised of the possibility of such damage. Except as provided in Section 13 hereof, any liability of either party shall be limited to the total amount paid to Affiliate by RsFeed under this Agreement.


15. Entire Agreement. This Agreement sets forth the entire agreement between Affiliate and RsFeed and supersedes any and all prior and contemporaneous agreements, whether written or oral, of RsFeed and Affiliate with respect to the subject matter of this Agreement and the transactions contemplated hereby.


16. Governing Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California. Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts located in the State of California, county of San Francisco, for the purpose of enforcing this Agreement. In any action, suit or other proceeding, each of the parties hereto irrevocably and unconditionally waives and agrees not to assert by way of motion, as a defense, or otherwise any claims that it is not subject to the jurisdiction of the above courts, that such action or suit is brought in an inconvenient forum or that the venue of such action, suit or other proceeding is improper. Each of the parties hereto also agrees that any final and un-appealable judgment against a party hereto in connection with any action, suit or other proceeding shall be conclusive and binding on such party and that such award or judgment may be enforced in any court of competent jurisdiction, either within or outside the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment.


17. Pre-Litigation Negotiations. RsFeed and Affiliate will use commercially reasonable efforts to attempt to resolve any dispute arising out of or relating to this Agreement by negotiations between them before initiating formal legal proceedings. The negotiations shall be conducted in good faith and may be commenced by written notice sent by one party to the other. Discussions and correspondence between the parties hereto for purposes of conducting negotiations will be treated as confidential information developed for purposes of settlement and deemed inadmissible in any litigation that may ensue pursuant to California Evidence Code section 1152, et. seq. In the event that one party hereto does not respond to the other party’s written request for negotiations within seven calendar days after the date of such request, then the requesting party may commence formal legal proceedings pursuant to the provisions of Section 16 hereof, above.


18. Notices. All notices, requests, demands, and other communications required or permitted under this Agreement must be in writing and will be deemed to have been duly given if delivered by hand or mailed, certified or registered mail or via overnight delivery service, with postage prepaid to the address set forth in the opening paragraph of this Agreement, or to such other person or address as a party may designate in writing pursuant to this Section 16 hereof.


19. Modification. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties hereto.


20. Relationship of the Parties. The relationship of the parties hereto is that of independent contractors and not partners, employees, agents, or joint venturers. Neither party hereto has any power or authority to assume or create any obligation or responsibility on behalf of the other except as may be expressly provided in this Agreement.


21. Assignment. Affiliate may not assign this Agreement, in whole or in part, and any such attempted assignment shall be void and without effect. RsFeed may assign this Agreement within its sole discretion.


22. Force Majeure. Any delay in or failure of performance by either party hereto under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages, and governmental restrictions..


23. Survival. Any warranties made by Affiliate in this Agreement, shall survive its termination or expiration.


24. Severability. In the event that any of the provisions of this Agreement are held by a court of competent jurisdiction to be unenforceable, the remaining provisions hereof shall remain in full force and effect.


25. Counterparts. This Agreement may be executed in counterparts, via facsimile, each of which shall constitute an original but all of which taken together shall constitute one and the same agreement.