This Agreement (hereinafter the "Agreement")
is made by and agreed to between Performance-Based.com.
("Performance-Based.com"), and you ("You"). As an application service
provider, Performance-Based.com facilitates "Performance Marketing Programs"
through provision of services ("Network Service") via the Internet.
A "Performance Marketing Program" (or "Program") is where a person,
entity, publisher or its agent operating one or more "Web site(s)"
(domain or portion of a domain within the Internet and/or
subscription email list(s) ("Publisher") may earn financial
compensation ("Payouts") for "Transactions" (actions by Visitors
as defined by the Advertiser) made from such Publisher's Web site
or subscription emails through a click made by a "Visitor" (any
person or entity that is not the Publisher or the Publisher's
agent) through an Internet connection ("Link") to a Web site or Web
site content operated by another person or entity ("Advertiser").
The Advertiser compensates the Publisher, in accordance with this
Agreement and the Program Payout specifications.
1 Relationship. As a Publisher, You agree:
(a) not to mislead others; and/or
(b) no to engage in spamming via UBE or UCE or scumware.
(c) That beastiality sites are not allowed
(d) That child pornogrophy is not allowed, and if noted, will
be reported immediately to the appropriate local and federal
Performance-Based.com may deem Your promotional activities inappropriate and
a material breach of this Agreement based upon the foregoing, and/or
on reasonable Internet business standards as they may evolve. If You
are in breach of this Section 1, Performance-Based.com shall provide You with
notice and the opportunity to cure (in accordance with Section 6.2
below), except that no opportunity to cure shall be provided if You
are in breach of Section 1(b) . Any suspected fraudulent, abusive
or otherwise illegal content or activity by You on Your Web site
or in Your subscription emails, or that is perpetrated through use
of the Network Service, is grounds for immediate termination of this
Agreement or deactivation of "Your Account" (a memo account kept
by Performance-Based.com on Your behalf), without prior notice
by Performance-Based.com and may include referral to the appropriate law
enforcement agencies (as Performance-Based.com deems appropriate).
Performance-Based.com may not review all content on Your Web site or in Your
subscription emails. You shall remain solely responsible for Your
Web site and subscription email content. Performance-Based.com is, under
no circumstances, responsible for the practices of any Advertiser
or Publisher or such Advertiser or Publisher's Web site(s) and/or
the content that an Advertiser makes available through the Network
Service and/or the content of Publishers' subscription emails.
2.1 Linking to Advertisers.
During the Term You may apply to Advertiser Programs for the
opportunity to earn Payouts through running one or more Advertiser
"Campaigns" (pay-per-Transaction promotions). Upon approval by the
Advertiser for acceptance into its Program, You may post (and
remove) Links from Your Web site or subscription emails
to Advertiser's Web site or Web site content. If such Links are not
dynamically updated through the Network Service, You are obligated
to update Links to an Advertiser's Web site or Web site content
when notified to do so in order to earn Payouts.
2.2 Use of Links to Advertisers.
You may not place Links to a Advertiser's Web site or Web site
content in unsolicited email and other types of spam. You must place
Links to the Advertiser's Web site or Web site content such that
it is unlikely that the Links will mislead the Visitor, and such
that it is reasonably likely that the Links will deliver bona fide
Transactions by the Visitor to Advertiser from the Link. None
of Your promotional activities may infringe an Advertiser's
intellectual property rights (including but not limited to trademark
rights), intellectual property rights of a competitor of
a Advertiser, or Performance-Based.com's intellectual property rights.
You shall not cause any Transactions to be made that are not in good
faith. You shall be responsible for ensuring that each Sub-Publisher
you recruit meets Performance-Based.com's eligibility requirements (as
established from time to time), is bound by and complies with
Publisher duties (and where stated Sub-Publisher duties)
as specified in this Agreement, and for payment of Payouts due to
Sub-Publisher that shall accrue in Your Account. You shall indemnify
Performance-Based.com for all acts of Your Sub-Publishers without limitation.
The details of a Advertiser's Program and any Campaigns shall
be available through the Network Service. An Advertiser may prohibit
You from receiving compensation for a Payout attributable
to Transactions made directly by You or on Your behalf by Your agent
by Linking to Advertiser from Your Web site or in Your subscription
email. A Advertiser may permit You to serve the Advertiser's
ad content and/or modify the Advertiser's Links (including but not
limited to the images contained therein). For "Lead" Campaigns, the
Advertiser is compensating an Publisher when a Visitor has completed
an action that is defined by the Advertiser, such as completing
a form or other mechanism to identify potential customers. The
Advertiser shall publish on the Network Service Lead Campaign
parameters, including details regarding any disqualifying Leads
or Lead form content (such as multiple Lead submissions), and the
components included within an individual sale Transaction that
result in a Payout. Notwithstanding the preceding, no details of an
Advertiser's Program may conflict with terms and conditions
contained in this Agreement. Performance-Based.com shall not be obligated
to enforce or honor any such conflicting terms and conditions.
Breach of this Section 2.2 is cause for immediate termination from
an Advertiser's Program or Campaign and/or termination of this
2.3 Termination from Advertiser's Program/Campaign.
After You have been approved by an Advertiser, the Advertiser may
terminate You, one of Your Web sites or subscription email lists,
and/or Sub-Publisher(s) from the Advertiser's Program or a Campaign
for any of the following material breaches ("Publisher Termination
for Material Breach"):
(a) operation of an illegal business through such Web site and/or
subscription email list;
(b) engaging in any illegal activity of any type, including but not
limited to displaying illegal content on Your Web Site and/or
in Your subscription emails or offering any illegal good or service
through Your Web Site and/or subscription emails;
(c) operation of a Web site or email Link to Web sites that contain
or promote, any of the following content: illegal, cracking, hacking
or warez, or Link to a Web site(s) that does so;
(d) engaging in indiscriminate or unsolicited commercial advertising
(e) causing or enabling any Transactions to be made that are not in
(g) breach of the licensing provisions of this Agreement;
(i) breach of any other intellectual property right provision
of this Agreement or other of common law intellectual property
rights of Advertiser; and/or
(j) diluting, blurring or tarnishing the value of Advertiser's
trademarks, tradenames, and/or service marks.
Performance-Based.com may terminate You/Your Sub-Publisher from
an Advertiser's Program or Campaign in Performance-Based.com's sole
3.1 Applicable Codes and Code Maintenance.
In order for Performance-Based.com to record the tracking of Visitors'
Transactions resulting from clicks on Advertiser Links on Your Web
sites and/or subscription emailings, two types of Performance-Based.com code
must be included in and maintained within the Advertiser's Links:
"Impression Tracking Code" and "Transaction Tracking Code"
(collectively referred to as "Tracking Code"), and all Advertiser
Links and all advertisements ("Ad Content") must be in a Network
Service compatible format. You, the Advertiser or the Advertiser's
agent may serve standard Ad Content. If the Advertiser has any
non-standard Ad Content or Link format, these must be served by the
Advertiser, You or a Performance-Based.com authorized provider (contact
Performance-Based.com client services for verification and authority).
Performance-Based.com shall determine (where possible) actual Payouts that
should be credited to Your Account, and alternatively apply
an estimated amount of Payouts, if the Advertiser or its agent
serves Advertiser's Ad Content and such Links are not functioning
properly, or if Links to an Advertiser's Web site through the
Network Service are not functioning properly due to the
Advertiser's negligent or intentional act or omission. Performance-Based.com
may temporarily deactivate Your Account or terminate Your Account
if You or Your agent is responsible for the improper functioning
of Ad Content that You serve, or if You otherwise interfere with
and/or fail to maintain the Impression Tracking Code and Transaction
3.2 Network Service.
Subject to Section 3.1, Performance-Based.com shall provide You with access
to tracking and reporting tools, and to support services. From time
to time Performance-Based.com may offer optional services for a fee. Fees for
such optional services are at Performance-Based.com's then-current published
rates or as may be quoted by Performance-Based.com, and are payable
in advance or may be off-set against Your positive Account balance
(at Performance-Based.com's discretion). Tracking details regarding Visitor
Transactions for all Advertisers is not available on a real-time
basis and there may be reporting delays regarding Transactions for
some Advertisers. Performance-Based.com may make available, for fees that
Performance-Based.com shall publish from time-to-time, enhanced reporting
capabilities and other services that are not included in the
standard Network Service.
On-line support service is available through "Help" within the
members' area. Phone support is provided during the operating hours
of 8am-5pm, excepting national and Performance-Based.com recognized holidays
(local time and local holidays are applicable at all of
Performance-Based.com's business offices). Your use of "Help" enables
Performance-Based.com to respond more quickly to Your query.
3.3 Advertiser's Payout Rate.
The Advertiser shall establish through the Network Service a Payout
rate for a qualifying Transaction for each of the Advertiser's
Campaigns. Your Account will be credited with each Payout
in accordance with the Advertiser's Campaign Payout rate for the
relevant Campaign for each such Visitor action resulting directly
from Links from each of Your or Your Sub-Publisher's Web sites
or subscription emails to each Advertiser's Web site or Web site
Advertisers may discontinue Campaigns or Programs, or decrease any
Payout rate upon 7 days written notice with effect from the 8th day
from such notice. Performance-Based.com will send You a notice through the
Network Service messaging system regarding each change in Payout
rate(s) or Campaign or Program discontinuation. If You have a custom
Payout rate or other arrangements it is the Advertiser's
responsibility for notifying You through the Network Service
messaging system of a change in Payout rate or discontinuation of
a Campaign or Program.
If on the 20th day of the month for Publishers located in the US or
Canada and on the last day of the month for Publishers located
elsewhere Your Account exceeds Performance-Based.com's "Minimum Balance
Amount", as set by Performance-Based.com from time to time (currently US$10
for Publishers located in US or Canada, and up to US$25 for
Publishers located elsewhere), for Transactions reported for the
previous month, Performance-Based.com will issue to You any positive balance
in Your Account. Performance-Based.com shall have no obligation to make
payment of any Payouts for which Performance-Based.com has not received
payment from the relevant Advertiser. If Performance-Based.com elects, in its
own discretion, not to make payment to You for amounts not received
from an Advertiser, those amounts shall not be included in the
Minimum Balance Amount. Your recourse for any earned Payouts not
received by Performance-Based.com and not paid to You shall be to make
a claim against the relevant Advertiser(s) and Performance-Based.com
disclaims any and all liability for such payment.
Your Account balance shall appear in US Dollars although a courtesy
calculation of foreign currency conversion is enabled through the
Network Service. Foreign currency conversion shall be provided as
a convenience and is an estimate only. Payment in Your local
currency may be available (consult the information that is available
through Your Account). The conversion rate shall be determined
in accordance with Performance-Based.com's and Performance-Based.com's vendor's
operating standards using the rates prevailing upon the date that
payment is made to You, or upon the basis of historical conversion
rates if rates are unavailable at such time.
Any questions (including disputes) regarding Payouts and/or payment
should be directed to Performance-Based.com client services.
An Advertiser may request that Performance-Based.com, or Performance-Based.com may on
its own initiative, debit Your Account with an amount equal to
a Payout previously credited to Your Account in circumstances of
: product returns; duplicate entry or other clear error; non-bona
fide Transaction where there is no Publisher failure to comply with
the this Agreement; non-receipt of payment from, or refund
of payment to, the Visitor by the Advertiser; or Publisher failure
to comply with the terms of an Offer or Advertiser Click-through
Agreement ("Charge-back"). Charge-backs requested by an Advertiser
in accordance with the preceding sentence may be applied up to and
including the 60th day after the end of the month in which the
Payout was earned ("Charge-back Period"). Performance-Based.com may apply
at any time Charge-backs for all Transactions from Publisher's Web
site(s) and/or subscription emails for Publisher's or its
Sub-Publisher's failure to comply with this Agreement.
An Advertiser may request that a Payout be postponed 1 payment cycle
where Advertiser is verifying a Lead (for Lead Campaigns) or the
Advertiser has a product return policy or offer to the Visitor that
allows the Visitor to return the product during the Charge-back
4.1 Proprietary Rights and Licenses.
For each Advertiser whose Program You have been accepted to,
Performance-Based.com grants to You a revocable, non-transferable, royalty
free, international sublicense to display and Link to the
Advertiser's Web site or Web site content, and all trademarks,
service marks, tradenames, and/or copyrighted material ("Content"),
from each of Your Web Sites and/or subscription email for the
limited purposes of Promoting the Advertiser's Program and subject
to the terms and conditions of this Agreement. The foregoing rights
are sub-licensable by You to Your Sub-Publishers only if authorized
by Advertiser in writing. Your/Your Sub-Publisher's sub-license
is conditioned upon You/Your Sub-Publishers (as the case may be):
(a) not otherwise copying nor modifying, in any way, any icons,
buttons, banners, graphics files or Content that is made available
to You through the Network Service pursuant to such sublicense; and
(b) not removing or altering any copyright or trademark notices.
You grant to Performance-Based.com a revocable, non-transferable, royalty
free, international license to display on and distribute from
Performance-Based.com's Web site Content that You provide to Performance-Based.com
through the Network Service for the limited purposes of promoting
You to Advertisers, subject to the terms and conditions of this
Agreement and the Advertiser's Advertiser Service Agreement. The
right to display such Content is sub-licensable by Performance-Based.com
to Your Advertisers for the limited purpose of advertising that You
are a member of Advertiser's Program. Your Advertisers may not
distribute and/or sublicense Your Content unless authorized by Your
written permission. Performance-Based.com and sub-licensees shall not
otherwise copy nor modify, in any way, any Content that You have
made available through the Network Service pursuant to the foregoing
license. Performance-Based.com and the sub-licensees may not remove or alter
any copyright or trademark notices.
You agree that Your use of any Performance-Based.com Web site (such
as www.Performance-Based.com.com) and Your use of any Performance-Based.com Content
statements that it is doing business with the other party and use
the other's logo with such statements, subject to the other
party's name and logo usage guidelines.
4.2 No Challenge to Intellectual Property.
Performance-Based.com acknowledges that it obtains no proprietary rights
in Your Content, and agrees not to challenge Your proprietary rights
to the Content, if at all, unless and until this Agreement
is terminated. You acknowledge that You obtain no proprietary rights
in Performance-Based.com's Content, patents, and patent applications, and
agree not to challenge Performance-Based.com's proprietary rights
in Performance-Based.com's patents and patent applications, and, with
respect to the Content, if at all, until this Agreement
is terminated. This Agreement may be terminated upon notice if the
other party begins proceedings to challenge the party's
intellectual property rights during the Term in violation of the
You acknowledge that You obtain no proprietary rights in each
of Your Advertisers' Content, and agree not to challenge such
Advertiser's proprietary rights to the Content until the Advertiser
has terminated You from its Program or You have withdrawn from the
Advertiser's Program by removing all Links provided to You through
the Network Service.
The licensees/sub-licensees agree that all goodwill arising as
a result of the licensor's Intellectual Property shall inure to the
benefit of the licensor, and that all non-licensed/non-sublicensed
proprietary rights in the Intellectual Property remain with the
licensor. Licensees/sub-licensees shall not adopt any names,
trademarks, service marks or domain names that are confusingly
similar to, or in combination with any of licensor's tradenames,
trademarks, service marks and/or domain names.
4.3 Terminating Licenses.
The Advertiser may terminate any sublicense granted to You and/or
a Sub-Publisher under this Agreement immediately upon written notice
to You if the Advertiser has reasonable concerns that You and/or the
Sub-Publisher is diluting, tarnishing or blurring the value of the
Advertiser's trademarks, service marks, and/or tradenames, and/or
breach of the Advertiser's other intellectual property rights.
Performance-Based.com may terminate this Agreement immediately upon written
notice if Performance-Based.com has reasonable concerns that You or Your
Sub-Publisher may be diluting, tarnishing or blurring the value
of Performance-Based.com's trademarks, service marks, and/or tradenames,
and/or breach of Performance-Based.com's other intellectual property rights.
5.1 Privacy and Confidentiality.
You or Performance-Based.com may provide the other with information that
is confidential and proprietary to that party or a third party,
as is clearly and obviously designated by the disclosing party
("Confidential Information"). 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 in order to protect any proprietary interests of the
disclosing party. Confidential Information shall not include (even
if designated by a party) information that is or becomes part of the
public domain through no act or omission of the receiving party,
or 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 that the receiving party
had in its possession prior to the date of this Agreement.
The information that You supply to establish and maintain Your
Account shall be Your Confidential Information, and You agree that
Performance-Based.com may but is not obligated to provide Your email
address(es) and basic Publisher Account detail (including but not
limited to Your address, phone and fax number, Web site name (if
applicable), date Web site or subscription email first entered into
operation, and visitor demographics) to Advertisers. You shall
be responsible for all usage and activity on Your account and for
loss, theft or unauthorized disclosure of Your password (other than
through Performance-Based.com's grossly negligent or willful conduct
or omission). You shall provide Performance-Based.com with prompt written
notification of any known or suspected unauthorized use of Your
Account or breach of the security of Your Account.
of www.Performance-Based.com.com and may be amended from time to time by way
of republication, is incorporated into this Agreement.
5.2 Collection and Use of Transaction Data.
Performance-Based.com does not collect information about a Visitor's
Transactions, other than what it receives through the installed
tracking code. Performance-Based.com reserves the right to be able to utilize
this data, which may include information about Your performance
statistics, to analyze Network Service trends, monitor Network
Service efficiencies, maintain the integrity of the tracking code,
promote Network Service capabilities and efficiencies, and promote
You and Your Web site or subscription email performance
to Advertisers. Performance-Based.com may also disclose data regarding
a Visitor's Transactions to You, if You referred the Visitor to the
Advertiser, for the performance of this Agreement and to the
Advertiser for the performance of the Advertiser's Advertiser
Service Agreement, and for Your use for rewards programs that the
Visitor is a member of (on the condition that the Visitor has
authorized release of such information to You). Notwithstanding the
foregoing, You represent and warrant that You shall not enable the
Tracking Code to collect personally identifiable information
of Visitors such that the Performance-Based.com would be able based upon the
data that is passed back by Advertisers to personally identify
5.3 Collection and Confidentiality of Visitors' Personal Data.
Performance-Based.com promises not to disclose publicly, other than under
compulsion of law, including subpoena, any personal or business
information that can be linked specifically to any Visitors to Your
Web site that result directly from Links on Your Web sites and/or
subscription email mailings without the Visitor's express
permission (which may be through the Visitor's membership to Your
subscription email or Web site program), to the extent Performance-Based.com
collects any such information, including, but not limited to, the
Visitor's name, email address, phone number, or any other personal
6.1 Term and Notices.
This Agreement shall commence upon Your indication that You have
accepted this Agreement by 'clicking through' the acceptance
button on the Performance-Based.com Web site, and, subject to Section 6.2,
shall last until terminated in accordance with the terms of this
Agreement. Except as provided elsewhere herein, both parties must
send all notices relating to this Agreement to: (a) for
Performance-Based.com, via registered mail, return receipt requested or via
an internationally recognized express mail carrier to Performance-Based.com,
150 Wells Street
PO Box 113
Erie, Colorado 80516
USA , and, (b) for You, at the email address listed on Your
Account, and shall be effective upon sending as long as Performance-Based.com
does not receive an error message regarding the delivery. Your
Account may be closed and Performance-Based.com may terminate this Agreement
if Your Account has not been logged into and/or there have been
no Transactions credited to Your Account for any 90 day period.
6.2 Temporary Deactivation and Termination.
This Agreement may be terminated by either party upon 30 days
notice. This Agreement may be terminated immediately upon notice for
Your breach of Section 1, or by either party if the other party
challenges the party's intellectual property rights during the
Term. Your Account may be deactivated in accordance with Sections
1, 2.2, 2.3, 3.5 or other material breach of this Agreement pending
termination or cure of Your breach. If this Agreement is terminated
for Your breach, You shall not be eligible to enter into a new
click-on Adult Track Network Agreement with Performance-Based.com, and any
attempt to do so shall be null and void.
Upon termination of this Agreement, an outstanding credit balance
shall be paid by Performance-Based.com to You within 90 days of the
termination date, and an outstanding debit balance shall be paid
by You to Performance-Based.com within 30 days of termination of this
Agreement, subject to amounts equivalent to pending for Charge-backs
(that shall be paid promptly if and when Performance-Based.com has been able
to verify that no Charge-back is applicable). Upon termination
of this Agreement, any license or sublicense granted under this
Agreement will terminate, and the licensee/sub-licensee must
immediately destroy or delete all physical and electronic copies
of the Intellectual Property and the Confidential Information, and
cause all Links to Advertisers (or applicable Advertiser) to be
removed, and, in the case of termination, Links to Performance-Based.com
to be removed. Upon termination of this Agreement, or in case
of deactivation of Your Account pursuant to the terms of this
Agreement, You shall no longer accrue Payouts in Your Account for
Visitors' click-throughs to any Advertiser's Web site or Web site
content (including but not limited to subsequent sales and/or
The provisions of this Section and Sections 1, 3.4, 3.5, 5.1, 5.2,
6, 8.1(a), 9, 10, 11.3, 11.4, 11.6, and 11.7 shall survive the
termination of this Agreement.
7 Changes to the Network Service.
This Agreement, including the Introduction, 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. Notwithstanding the foregoing,
Performance-Based.com shall have the right to change, modify or amend
("Change") this Agreement, in whole or in part, by notifying You of
such Change, by email, at least 14 days prior to the effective date
of such Change; provided however that either party shall have the
right to terminate this Agreement pursuant to Section 6.2 in the
event that You do not agree to such Change.
No remedy or election shall be deemed exclusive but shall, wherever
possible, be cumulative with all other remedies at law or in equity.
8.2 Third Party Disputes.
Should any third party (including a Performance-Based.com Advertiser) dispute
a party's right to use any Link, domain name, trademark, service
mark, trade dress, or right to offer any service or good offered
on a party's Web site or through its subscription email, a party
may, without prior notice, terminate this Agreement, or, in
Performance-Based.com's case, deactivate Your Account. A party's
representations regarding the preceding may or may not be relied
upon in the other party's decision whether to terminate this
Agreement, or, in Performance-Based.com's case, deactivate Your Account.
9.1 Business Operations.
Each party will make reasonable commercial efforts to keep its Web
site operational during normal business hours. However, the parties
agree that it is normal to have a certain amount of system downtime
and agree not to hold each other or Your Advertisers liable for any
of the consequences of such interruptions.
9.2 Authority and Compliance with Laws.
Each party represents and warrants to the other party as to itself
that the person executing this Agreement is authorized to do so on
such party's behalf. Each party is responsible for compliance with
the applicable local laws in the jurisdiction from which it operates
and represents and warrants such compliance. Each party represents
and warrants that the party shall have all appropriate authority and
rights to grant the licenses hereunder, and that to the party's
knowledge the licenses, and in the case of Performance-Based.com, the
technology that Performance-Based.com utilizes for the Network Service,
do(es) not infringe a third party's (or the other party's)
intellectual property rights.
9.3 Limitation of Liabilities.
WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION OBLIGATIONS, ANY
LIABILITY OF A PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE
TOTAL OF YOUR PAYOUTS PAID AND PAYABLE TO YOU BY Performance-Based.com AND
INTEREST PAID AND PAYABLE BY YOU TO Performance-Based.com DURING THE TERM
OF THIS AGREEMENT. WITH THE EXCEPTION OF A PARTY'S INDEMNIFICATION
OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY,
OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER
PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN
IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
9.4 Disclaimer of Warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTH
PARTIES DISCLAIM ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED
TO, (A) MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B)
THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT
A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (D)
REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST
INTERFERENCE WITH ENJOYMENT OF A PARTY'S "INFORMATION" (WEB SITE).
ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED IN THE COURSE
OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK
AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT
IS WITH THE USER.
9.5 Benefit of the Bargain.
THE PROVISIONS OF THIS SECTION 9 ARE AN ESSENTIAL ELEMENT OF THE
BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
10.1 Performance-Based.com's Indemnification Obligations.
Performance-Based.com shall defend, indemnify and hold Publisher harmless
against all claims, suits, demands, damages, liabilities, losses,
penalties interest, settlements and judgments costs and expenses
(including attorneys fees) incurred, claimed or sustained by third
parties, including but not limited to Advertisers, for
Performance-Based.com's breach of Section 9.2 ("Claims"). Should any Claim
give rise to a duty of indemnification under the provisions of this
Agreement, then Publisher shall promptly notify Performance-Based.com, and
Publisher shall be entitled, at its own expense, and upon reasonable
notice to Performance-Based.com, to participate in, control the defense,
compromise and to defend of such Claim. Participation nor control
in the defense shall not waive or reduce any of Performance-Based.com's
obligations to indemnify or hold Publisher harmless.
10.2 Publisher's Indemnification Obligations.
Publisher shall defend, indemnify and hold Performance-Based.com harmless
against all claims, suits, demands, damages, liabilities, losses,
penalties interest, settlements and judgments costs and expenses
(including attorneys fees) incurred, claimed or sustained by third
parties, including but not limited to Advertisers, directly
or indirectly as a result of (a) Publisher's breach of or
non-compliance with this Agreement, (b) Publisher's violation
of any law or alleged violation of law by Performance-Based.com that is
a direct of indirect result of Publisher's use of the Network
Service (other than due to Performance-Based.com's knowing and intentional
violation), (c)Publisher's use of the Network Service, (d)
Publisher's participation in any Program, (d) any content, goods
or services offered, sold or otherwise made available by Publisher
to any person, (e) Publisher's acts of omissions in using,
displaying or distributing any internet links obtained from the
Network Service or elsewhere, (f) any claim that Performance-Based.com
is obligated to pay tax obligations in connection with payment made
to Publisher pursuant to this Agreement and/or any Advertiser's
Program, (g) any violation or alleged violation by Publisher of any
rights of another, including breach of a person's or entity's
intellectual property rights, (h) Publisher's use of any content
("Claim(s)"). Should any Claim give rise to a duty
of indemnification under this Section 10.2, Performance-Based.com shall
promptly notify Publisher, and Performance-Based.com shall be entitled,
at its own expense, and upon reasonable notice to Publisher,
to participate in the defense of such Claim. Participation in the
defense shall not waive or reduce any of Publisher's obligations
to indemnify or hold Performance-Based.com harmless. Publisher shall not
settle any Claim without Performance-Based.com's prior written consent.
Publisher shall indemnify Performance-Based.com for any reasonable
attorneys' fees or other costs incurred by Performance-Based.com
in investigating or enforcing its rights under this Agreement.
In the context of this Section 10.2 only, the term "Performance-Based.com"
shall include officers, directors, employees, corporate publishers,
subsidiaries, agents, and subcontractors.
11.1 Headings and References.
Headings of Sections are for the convenience of reference only.
Words indicated in quotes and capitalized signify an abbreviation
or defined term for indicated words or terms, including those
definitions contained in the opening paragraph. The content in other
Web sites specifically referenced in this Agreement, such as URLs,
is incorporated by this reference as though fully stated in this
11.2 Relationships of Parties/Third Party Rights.
The relationships of the parties to this Agreement shall be solely
that of independent contractors, and nothing contained in this
Agreement shall be construed otherwise. Nothing in this Agreement
or in the business or dealings between the parties shall
be construed to make them joint venturers or partners with each
other. Neither party shall do anything to suggest to third parties
that the relationship between the parties is anything other than
that of independent contractor. Certain provisions of this Agreement
are intended to benefit each Advertiser that has approved You for
membership in its Program, and reciprocally, You are intended
to benefit under each such Advertiser's Advertiser Service
Agreement. You agree that Your rights under the Advertiser's
Advertiser Service Agreement do not exceed the Advertiser's duties,
as Your rights are limited by any defenses, claims and rights the
Advertiser may have. You agree that Your consent is not necessary
to modify any Advertiser Agreement.
11.3 Dispute Resolution.
The parties will attempt in good faith to resolve through
negotiation any dispute, claim, or controversy arising out of or
relating to this Agreement or breach, termination, enforcement,
interpretation or validity thereof, including the determination
of the scope or applicability of this Section 11.3 ("Dispute").
If the Dispute is not resolved through verbal and written
communications, the matter will be submitted to JAMS, or its
successor, for arbitration. Any Dispute submitted to arbitration
shall be determined by arbitration in Will County, Illinois, USA
before a sole arbitrator, in accordance with the laws of the State
of Illinois for agreements made in and to be performed in that
State. The language of the arbitration shall be English. The
arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures. The arbitrator will
have no authority to award punitive damages or any other damages not
measured by the prevailing party's actual damages, and may not,
in any event, make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement. Judgment
on the arbitration award ("Award") may be entered in any court
having jurisdiction. The arbitrator shall, in the Award, allocate
all of the costs of the arbitration, including the fees of the
arbitrator and the reasonable attorneys' fees of the party that
primarily prevails, against the party who that did not primarily
11.4 Choice of Law/Attorneys' Fees.
This Agreement is governed by the laws of the State of Illinois
(USA), except for its conflict of law provisions. Each party may
apply to the state courts in Will County, Illinois, and, to the
extent that federal courts have exclusive jurisdiction, in Will
County, Illinois for injunctive relief until such time as the Award
is rendered or the Dispute is otherwise resolved, and the parties
agree that those courts and JAMS arbitration (in accordance with
Section 11.3) shall be the exclusive fora for any such actions
related to this Agreement. You consent to such venue and
jurisdiction. 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. Performance-Based.com controls and operates its Web site from
its offices in the U.S.A. and access or use where illegal
11.5 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, riots,
insurrection, war (or similar), fires, flood, earthquakes,
explosions, and other acts of God.
If any provision of this Agreement is held by any court of competent
jurisdiction to be illegal, null or void or against public policy,
the remaining provisions of this Agreement shall remain in full
force and effect. The parties shall in good faith attempt to modify
any invalidated provision to carry out the stated intentions in this
Agreement. The waiver of any breach of any provision under this
Agreement by any party shall not be deemed to be a waiver of any
preceding or subsequent breach, nor shall any waiver constitute
a continuing waiver.
11.7 Assignment and Acknowledgement.
Neither party may assign this Agreement without the prior express
written permission of the other party. Notwithstanding the
foregoing, consent of the other party shall not be required for
assignment or transfer made by (a) operation of law, or (b) to an
entity that acquires substantially all of the party's stock, assets
or business; notice of assignment or transfer is required. Your use
of the Network Service is irrefutable acknowledgement by You that
You have read, understood and agreed to each and every term and
provision of this Agreement. Performance-Based.com may establish from time
to time rules and regulations regarding use of the Network Service
as published on the Network Service and incorporated herein.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE
AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
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