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Commission Junction Affiliate Service Agreement

This Affiliate Service Agreement (the "Agreement") is made by and between Commission Junction, Inc., a Delaware corporation ("Commission Junction"), and you ("You").

Commission Junction operates an Affiliate Marketing service. You wish to earn compensation through Your Web site by increasing sales, leads and/or visitors to other Web sites. Therefore, You wish to become an Affiliate Member of Commission Junction's Affiliate Marketing service.

Commission Junction and You agree to the following terms and provisions:

1 Relationship.

1.1 During the term of this Agreement You are an Affiliate. As an Affiliate, You agree to follow Commission Junction's 'Good Business Practices:'

1.1.1 You have a quality, professionally done Web site.
1.1.2 Your Web site does not contain or promote, or Link to Web sites that contain or promote, any of these types of content: libelous, defamatory, 'adult,' obscene, pornographic, abusive, violent, bigoted, hate-oriented, illegal, cracking, hacking or warez, or the offer any illegal good or service.
1.1.3 You do not mislead others.

If You operate a site that sells goods or provides services, You also agree to the following additional Good Business Practices:
1.1.4 You charge a fair price for Your product or service.
1.1.5 You have a secure shopping cart for processing orders and credit cards.
1.1.6 You have published customer service and satisfaction policies.
1.1.7 You provide a toll free customer support number or email address.
1.1.8 You fulfill customer orders promptly and quickly.
1.1.9 You provide email confirmation upon acceptance of an order.
1.1.10 You provide email confirmation of a shipment if applicable.
1.1.11 You have a published return policy and guarantee.
1.1.12 You have a published privacy policy.
1.1.13 You have robust back-end systems in place to process orders.

1.2 As an Affiliate, You may request to be added to the Affiliate Marketing program of one or more of the Member Merchants of the Service. Upon Merchant approval, You may post that Merchant's Links on Your Web site as provided in this Agreement. The Merchant Links you establish on Your Web site will provide You with the opportunity to earn Payouts for sales, Leads and/or Clicks that result.

1.3 If You are or become a Merchant, the terms of the Merchant Agreement shall apply to Your Affiliate relationship with Commission Junction, although both your Merchant and Affiliate relationships will be managed through one Account.

1.4 Commission Junction will provide You with reasonable support for the Service.

2 Tracking and/or Reporting.

Commission Junction will track critical information regarding sales, Leads and Clicks that result directly from Your Links through the Service from Your Web Site. Based on this information, Commission Junction will allocate Payouts and provide You and Merchants with informational reports and analyses. Upon notice that Your Links are not tracking due to anything under Your control, you will repair or fix the problem within one day of notice.

3 Your Links.

3.1 You may cause Links to be placed on and removed from Your Web site and Your e-mail messages at Your discretion subject to the terms and conditions of this Agreement. You shall not place Your Links in newsgroups, message boards, unsolicited e-mail and other types of spam, banner networks, counters, chatrooms, guestbooks, IRC channels or through similar Internet resources.

3.2 Your Links must be placed such that it is unlikely that they will mislead the Visitor. In addition, Your Links must be placed with the intent that it is reasonably likely that they will deliver bona fide sales, Leads or Clicks to the related Merchant for the Link.

3.3 After a Merchant has approved You, the Merchant may still terminate its relationship with You seven (7) days after the Merchant provides You with notice that it intends to terminate Your linking rights and that specifies a bona fide business reason for such termination. Your termination in this manner shall not affect any Payouts that You earned prior to termination.

4 Payouts.

4.1 Each Merchant establishes through the Service the amount or percentage of one or more Payouts under one or more sales program, Leads program or Clicks program. You agree that each Merchant may switch between programs, or change any Payout amount or percentage as to new transactions at any time; however, Payouts shall accrue in accordance with the program, amount or percentage in effect at the time the Payout is earned. Upon any change to the Payout in amount or percentage, Commission Junction will send each Affiliate who hosts Links to the Merchant's Web site an email notice regarding the change. It is Your duty to determine the current Payout rates in effect from time to time. The current Payouts for each Merchant shall be available to You on the Service.

4.2 Commission Junction will credit Your Account with the amount of the Payout if Your Link directly resulted in a bona fide sale, Lead or Click for which the relevant Merchant has an established Payout at the time of such sale, Lead or Click.

4.3 Other than Commission Junction's income taxes, You agree that one or more of You, the Affiliate, or the Visitor, to the exclusion of Commission Junction, shall pay all appli-cable sales, use, Internet, import, or other taxes or duties, and any other fees or withhold-ing related to the sales, Leads and Clicks on Your Links or licenses under this Agreement.

4.4 A bona fide sale or Lead will be deemed to have resulted directly from one of Your Links, if the sale or Lead occurs within 45 calendar days of the last time that the bona fide Visitor Clicked on Your direct Link to the sale or Lead opportunity and since that date the Visitor did not Click on any other Link to the same destination from another Affiliate's Web site. If a sale or Lead occurs more than 45 calendar days after the Visitor last Clicked on one of Your Links, then You will not be credited with the Payout. If a Visitor has Clicked on two different Affiliates' Links within 45 days of a resulting sale or Lead, the Payout will be credited to the Affiliate who hosted the Link Clicked last.

5 Service Promotion.

5.1 You should find that each Merchant is promoting the Service at least to the same extent as any other Affiliate program, including its own. You should find that no Merchant is offering You more if You participate in any other Affiliate Marketing program. If You become aware of any situation in which any Merchant appears to favor any Affiliate Marketing program more than the Service, or is offering Affiliates compensation supplemental to its Payouts, You will contact Commission Junction at legal@cj.com and provide specific information identifying the Merchant, the Link(s), the date, the compensation amount and all the pertinent facts.

5.2 You shall not encourage third parties to copy Your Links unless You first become a Merchant subject to the terms and conditions of the Merchant Agreement. You may encourage third parties to become Affiliates of the Service so that they may create their own Links directly as an Affiliate Member of the Service.

5.3 You shall not cause any sales, Leads or Clicks to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, hidden frames, JavaScript popup windows and redirects. You shall not Click on Your own Links, nor submit multiple Leads. You shall not establish or cause to be established any program that provides any rewards, points or compensation for Clicks or Leads, unless specifically approved in writing by the Merchant and Commission Junction.

5.4 If You became an Affiliate of a Merchant after that Merchant became a Member of the Service, You agree that Your relationship with that Merchant to be compensated for any sales, Leads and/or Clicks by a Visitor to that Merchant's Web site will be conducted, managed and paid through the Service. In conjunction with the preceding, You shall not directly or indirectly accept any compensation that supplements any Payout.

5.5 You shall not circumvent or evade any of Your duties under this Agreement, nor induce or conspire with any Member to circumvent or evade any of the Member's duties to Commission Junction. You understand that You are bound by a covenant of good faith and fair dealing under which You shall not deny Commission Junction the benefit of its Agreements and under which You have an affirmative duty to cooperate to assist Commission Junction in achieving the benefit of this Agreement. Any breach of this Section 5.5 is cause for immediate termination of this Agreement without notice. In addition to all other remedies under this Agreement, Commission Junction shall be entitled to recover from You any and all fees that would have been recovered had no breach of this Section 5 occurred. You are also liable for any Payout caused by improper use of the Service.

5.6 While You are an active Affiliate, Your Account will be credited US$1.00 for each person or organization that first becomes a bona fide Affiliate ("New Referral Affiliate") directly and primarily as a result of a Link from Your Web site to the then-current Affiliate registration form at the Commission Junction Web page ("Commission Junction Link") and You will receive US$.05 for every Click on such Commission Junction Link, plus an amount equal to 5% of all Payouts, minus any Chargebacks, of all New Referral Affiliates. If Your New Referral Affiliate in turn acquires a New Referral Affiliate, You will not receive any 'flowthrough' credit for that Affiliate. Should any aspect of this referral program, including the length of time during which You otherwise qualify to earn a portion of the earnings of the New Referred Affiliate, be questioned by a governmental law enforcement agency, or be deemed, becomes, or shall be held by any court of competent jurisdiction to be illegal, null or void or against public policy, the aspect at issue shall be modified to the minimum extent possible in accordance with Section 18.5 below in this Agreement.

6 Commission Junction's Obligation to Pay.

Subject to Section 11.3, at the end of any calendar month that Your Account balance exceeds the "Minimum Balance Amount" as set by Commission Junction from time to time (as a default rate), Commission Junction will transmit to You, by the 20th day following month end if You are a domestically (U.S.) situated Affiliate or by the end of the following month end if You are situated in a foreign country, the entire accumulated positive balance in Your Account for the relevant month. You may increase Your Minimum Balance Amount by editing the default rate. Your Account will not accrue interest.

7 Chargebacks.

7.1 Merchants may request that Commission Junction reverse any Payout related to a sale, Lead, or Click ("Chargeback") in any case of a: product return; duplicate entry or other clear error; non-bona fide sale, Lead or Click; or, with respect to a sale, non-receipt of payment from the Visitor to the Merchant.

7.2 In the event Commission Junction receives a Chargeback request within 6 months of the date Your Account was credited for the related Payout, Commission Junction has the right to debit Your Account in the amount of the related Payout. Because You are expected to provide each Merchant with bona fide and successful sales, Leads and Clicks, Commission Junction may withhold other Payouts earned to offset the Chargeback(s) against Your Account.

7.3 If Your Account balance is less than the amount of Your Chargeback(s), the difference will be deducted against Your future earnings.

8 Proprietary Rights and Licenses.

8.1 You represent and warrant that You have all appropriate authority and rights and grant Commission Junction a license for all reasonably foreseeable use, reproduction and distribution of any content You provide to the Service. This license is subject to the condition that Commission Junction may not modify in any way any names, trademarks, or content that You provide, except to the extent necessary for the reasonable purposes of the Service. You represent and warrant that none of the content that You provide to the Service or provide on Your Web site or provide in any e-mail in which You place one of Your Links, infringes upon any third party's rights (including, without limitation, intellectual property rights) or is defamatory, libelous, unlawful or otherwise objectionable.

8.2 Commission Junction grants You a revocable, non-transferable, royalty free, international sublicense, subject to the terms and conditions of Commission Junction's license, to allow Merchant Links and Commission Junction Links to be created on Your Web Site and e-mail and to copyrighted Commission Junction content for the limited purposes of and subject to the terms and conditions of this Agreement. You agree to remove or update any Link promptly upon Commission Junction's request. You shall not otherwise copy, nor in any manner modify, in any way any icons, buttons, banners, graphics files, names, trademarks, or copyrighted content that You receive from the Service. You may not remove or alter any copyright, patent or trademark notices.

8.3 Your provision to the Service of any images, technology or content shall not affect Your proprietary rights, if any, and no part shall be deemed licensed except as explicitly provided for herein, and, under no circumstances, shall any part be deemed assigned in any manner.

8.4 You shall not challenge the validity of or attempt to register any marks, or Your interest therein as a sublicensee, within any Link that you cause to be placed on Your Web site from the Service ("Marks"). You shall not adopt any names, trademarks, or service marks that are confusingly similar to, or in combination with any of the Marks. Except as sublicensed and/or licensed in this Agreement, You will not create any derivative works from any copyrighted content You use from the Service. By Your use of any Commission Junction Links, trademarks, service marks, and copyrighted content ("Intellectual Property"), You acknowledge You have no proprietary rights in the Intellectual Property and agree not to challenge Commission Junction's proprietary rights to the Intellectual Property. You acknowledge the right of the Merchant or Commission Junction, as the case may be, to use all names, trademarks and service marks that may appear in each Link You cause to be placed on Your Web site or in Your e-mail. You agree that all goodwill arising as a result of Your use of any Merchant's or Commission Junction's Links shall inure to the benefit of the Merchant or Commission Junction, as the case may be. Limited only by the express sublicense and/or license herein to use Links, You agree that the intellectual property rights, including trademarks, copyrights, patent rights or applications, tradenames and service marks related to the foregoing remain with the Merchant or Commission Junction, as the case may be.

8.5 You agree that any sublicense and/or license to You under this Agreement may be terminated immediately upon written notice to You if Commission Junction or the Merchant has reasonable concerns that You are diluting, tarnishing or blurring the value of the Marks, and no notice shall be required for termination for breach of Commission Junction's and/or Merchant's other intellectual property rights.

8.6 You agree that Your use of any Commission Junction Web site, including but not limited to www.cj.com, is subject to the terms of use that may be available from such Web page, or by contacting legal@cj.com.

9 Privacy and Confidentiality.

9.1 Commission Junction respects privacy. Commission Junction promises not to disclose, other than under compulsion of law, including subpoena, and as reasonably necessary to CJ's agents, consultants and potential investors, any personal or business information that can be linked specifically to any of Your Visitors, without Your express permission, to the extent Commission Junction collects any such information. Commission Junction will not sell the name, e-mail address, phone number, or any other personal information regarding Your Visitors to anyone. Commission Junction considers this information to be private, and, if ever collected, will treat it as such. You understand that by Clicking on Your Links, Your Visitors will have cookies placed on their hard drives. You agree that Commission Junction may post performance statistics based on You and Your Links. Each party may make statements that it is doing business with the other and use the other's logo with such statements.

9.2 If You have any questions about Your privacy rights, or would like further information regarding the confidentiality of Your interactions with Commission Junction, You may contact us at legal@cj.com.

9.3 During the course of this Agreement, You or Commission Junction may provide the other with information in a manner that reasonably assures that the receiving party has actual knowledge of its confidential and proprietary nature ("Confidential Information"). The receiving party agrees to make reasonable efforts to maintain the confidentiality in order to protect any proprietary interests of the disclosing party. "Confidential Information" shall not include 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(ies) 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.

9.4 Commission Junction does not collect information about a Merchant's customer's transactions, other than what it receives through the installed tracking code. Commission Junction reserves the right to be able to utilize this data, which may include information about You, in aggregate to analyze Service trends, monitor Service efficiencies, and for such other uses as Commission Junction deems appropriate, including the promotion of Service capabilities and efficiencies. However, Commission Junction will not disclose publicly or on its web site, any of Your data separately, or in a manner that would enable anyone to identify such data with You, unless Commission Junction is under compulsion of law, including, but not limited to, subpoena.

10 Requirements of the Service.

10.1 Commission Junction reserves the right to deem any content or Web site inappropriate based on reasonable Internet business standards as they may evolve, including the factors set forth in Section 1. As Commission Junction may not review all information provided by You, You shall remain solely responsible for Your content and Web site. You understand and agree that CJ is, under no circumstances, responsible for the content or practices of any Merchant or its Web site.

10.2 Upon request, You must provide Commission Junction with reasonable and valid substantiation for any advertising claims You make in Your Links or on Your Web site that are related to the Service by sender's server of delivery confirmation.

10.3 You agree that Commission Junction may rely on any data, notice, instruction or request received that Commission Junction reasonably believes to be genuine and to be authorized by You. You shall promptly notify Commission Junction by e-mail at fraud@cj.com of any known or suspected unauthorized use of Your Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your email and password. You shall be responsible for maintaining the confidentiality of Your email and password and You are responsible for all usage and activity on Your Account, whether authorized by You or not. Any reasonably suspected fraudulent, abusive or otherwise illegal activity is grounds for immediate termination of this Agreement or deactivation of any of Your Links, without notice by Commission Junction and referral to the appropriate law enforcement agencies.

11 Term and Termination.

11.1 This Agreement is effective immediately upon Your indication that You have accepted this Agreement by 'clicking through' the acceptance button on the Commission Junction Web site.

11.2 This Agreement shall terminate the earlier of: either You or Commission Junction providing 30 days notice to the other, in accordance with Section 12.2, of its intention to terminate this Agreement; or, Commission Junction terminating this Agreement pursuant to its rights hereunder. If this Agreement is terminated, You shall not be eligible to enter into a new click-on Affiliate Marketing agreement with Commission Junction, and any attempt to do so shall be null and void, and you shall be responsible for all costs, damages and related attorneys fees related to such attempt.

11.3 The provisions of Sections 4.3, 6, 7, 8, 9, 14, 15, 16, 17, 18 and 19, as well as any rights arising out of a breach shall survive the termination of this Agreement. Within 9 calendar months after the termination of this Agreement, Commission Junction will pay You the amount of any positive balance in Your Account.

11.4 Upon termination of this Agreement, any license granted to You under this Agreement will terminate and You must immediately:

11.4.1 Delete all electronic copies of the Intellectual Property and the Confidential Information;
11.4.2 Return to Commission Junction or destroy any physical copies of the Intellectual Property and the Confidential Information;
11.4.3 Cause all Links to Commission Junction and all Links through the Service to Merchants to be removed from Your Web site

12 Notice.

12.1 Immediately upon any change, including but not limited to e-mail and postal addresses, and telephone and facsimile numbers, You will update Your information Web page(s) on Commission Junction's Web site.

12.2 Except as provided under Section 12.3, You must send all notices relating to this Agreement via email to Commission Junction at legal@cj.com with the subject line of "IMPORTANT LEGAL NOTICE." As You agree that it is Your responsibility to review Your Member account manager at the Member only area of http://www.cj.com at least once a week, for all notices relating to this Agreement, Commission Junction shall notify You by either by posting the information at the Commission Junction Web site, http://www.cj.com, or by e-mail at the email address most recently provided on Your information Web page on Commission Junction's Web site at least 14 days prior to any such changes taking effect, at which time You may either agree to such changes or withdraw from the Service. E-mailed notices shall be effective upon the logging by sender's server of delivery confirmation.

12.3 You agree that Commission Junction may rely on any data, notice, instruction or request received that Commission Junction reasonably believes to be genuine and to be authorized by You. You shall promptly notify Commission Junction by e-mail at fraud@cj.com of any known or suspected unauthorized use of Your Account, or any known or suspected breach of security, including loss, theft or unauthorized disclosure of Your email and password. You shall be responsible for maintaining the confidentiality of Your email and password and You are responsible for all usage and activity on Your Account, whether authorized by You or not. Any reasonably suspected fraudulent, abusive or otherwise illegal activity is grounds for immediate termination of this Agreement or deactivation of any of Your Links, without notice by Commission Junction and referral to the appropriate law enforcement agencies.

13 Changes to the Service.

Commission Junction reserves the right to modify, add or remove portions of this Agreement and may add to, change, suspend or discontinue any aspect of the Service. Except as otherwise provided in this Agreement, in the event that such Commission Junction action results in a detrimental material change to You in the Service, Commission Junction will provide You with notice at least 14 calendar days prior to any such changes taking effect, during which time You may terminate this Agreement immediately by notifying Commission Junction and taking all reasonable steps to immediately withdraw from the Service. Your failure to so terminate this Agreement during those 14 calendar days shall be deemed Your irrefutable acceptance of the change to this Agreement or material change to the Service.

14 Remedies.

14.1 Absent manifest error, the number or amount of sales, Leads and/or Clicks, the credits for Payouts, and the charges for Chargebacks, that are calculated by Commission Junction in good faith shall be final and binding on You.

14.2 Commission Junction may terminate this Agreement, deactivate You or remove any of Your Links without prior notice if Commission Junction believes in good faith that You are:

14.2.1 Harming the reputation of CJ, or
14.2.2 In breach of any of the following Sections of this Agreement: 1, 2, 3, 4, 5, 8, 9, or 10, or
14.2.3 Not responding reasonably promptly to Commission Junction's attempts to communicate.

14.3 As part of and in addition to terminating this Agreement, deactivating You or removing any of Your Links, Commission Junction has the right to notify Merchants of the action taken, lock you out of Your account Web page and replace Your Links, with Commission Junction's Links.

14.4 If You fail to remedy a breach of this Agreement or fail to provide evidence satisfactory to Commission Junction that no breach has occurred, Commission Junction may in its sole discretion terminate this Agreement without any further obligation or compensation to You for such termination.

14.5 Should You cause Premature Termination of this Agreement, You shall pay to Commission Junction an amount equal to three times Your largest month of Payouts earned during the term of this Agreement. "Premature Termination" means a breach of this Agreement uncured after reasonable notice to You, causing the actual or constructive termination of this Agreement including, but not limited to:

14.5.1 Failure by You to maintain Your Links such that sales, Leads and/or Clicks by Your Visitors cannot be appropriately tracked by Commission Junction;
14.5.2 Circumvention of this Agreement through an arrangement with a current or past Member that directly or indirectly deprives Commission Junction from the benefits of its bargain under this Agreement, another arrangement with Merchant, or a Merchant Agreement; or
14.5.3 Breach of Section 5 above.

14.6 You acknowledge that remedies at law may be inadequate to protect against breach of Commission Junction's intellectual property rights, including, but not limited to those as sublicensor of any Member's rights, as prohibited under this Agreement, and You hereby agree to the granting of injunctive relief without the posting of a bond or undertaking, for the protection of terms laid out in this Agreement without proof of actual damages. The parties further agree that in the event legal proceedings are initiated to enforce this Agreement, attorneys' fees shall be awarded to the prevailing party.

14.7 Should You and any third party each allege entitlement to any money or other property that Commission Junction possesses, Commission Junction has the right to interplead any such money or property into any court with jurisdiction over this Agreement and deduct the associated reasonable costs and attorneys' fees from Your Account.

14.8 Should any third party dispute Your right to use any Link, domain name, trademark, service mark, trade dress, or Your right to offer any service or good offered on Your Web site, You agree that Commission Junction may disassociate itself, without prior notice, with any such Link, domain name, trademark, service mark, trade dress, service or good, by terminating this Agreement, deactivating You or removing any of Your Links. You agree that CJ may, but has no duty to, rely on Your representations regarding You and Your Web site in its decisions whether to terminate this Agreement, deactivate You or remove any of Your Links.

14.9 No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

15 Disclaimer of Warranties & Limitation of Liability.

15.1 Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, certain technical difficulties may, from time to time, result in temporary service interruptions. We agree and acknowledge that it is normal to have a certain amount of system downtime and agree not to hold each other or the Merchants liable for any of the consequences of such interruptions.

15.2 ANY LIABILITY OF CJ UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID AND PAYABLE BY COMMISSION JUNCTION DURING THE TERM OF THIS AGREEMENT.

15.3 CJ SHALL NOT BE LIABLE TO YOU 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; NOR ANY CLAIM BY ANY THIRD PARTY INCLUDING BUT NOT LIMITED TO A CLAIM BY A MEMBER, EVEN IF CJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.

15.4 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMMISSION JUNCTION DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) THAT THE SERVICE WILL BE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE, (B) THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, (C) THAT DEFECTS WILL BE CORRECTED, (D) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (E) THAT THE SECURITY METHODS EMPLOYED WILL BE SUFFICIENT, (F) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, (G) AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION, OR (H) AGAINST INFRINGEMENT. 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 YOU AS THE USER.

15.5 CJ SHALL NOT BE LIABLE TO YOU OR ANY OF YOUR DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, EMPLOYEES, LICENSEES, OR ATTORNEYS, FOR COMMISSION JUNCTION'S WILLFUL, RECKLESS OR NEGLIGENT CONDUCT RELATED TO OR ARISING FROM: (1) FAILURE BY YOU OR YOUR MERCHANTS TO USE THE MOST RECENT VERSION OF TRACKING CODES OR LINKS, OR THE MODIFICATION OR MISUSE THEREOF; (2) COMMISSION JUNCTION'S DELAY IN FURNISHING SERVICES; (3) THE INABILITY TO USE THE SERVICE OR ANY INFORMATION PROVIDED ON ANY WEB SITE OR ANY LINKED WEB SITE; (4) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN ANY WEB SITE OR ANY LINKED WEB SITE; (5) UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DESTRUCTION OF THE WEB SITE, CUSTOMER DATA FILES, SYSTEMS OR PROGRAMS, OF YOU OR YOUR MERCHANTS; (6) ANY ACT OR OMISSION BY A MERCHANT; OR (7) THE CONTENT OR USE OF ANY WEB SITE. 15.6 YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 15 ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.

16 Indemnification.

16.1 You shall defend, indemnify and hold CJ harmless against all claims, suits, costs, damages and judgments incurred, claimed or sustained by third parties, including but not limited to Merchants, related in any manner to this Agreement or to any Merchant Agreement whether entered into before of after this Agreement ("Claims"), provided that such Claims are not solely attributable to the intentional acts of CJ.

16.2 Should any Claim give rise to a duty of indem-ni-fication under the provisions of this Agreement, then the indemnitee shall promptly notify the indemnitor, and the indemnitee shall be entitled, at its own expense, and upon reasonable notice to the indemnitor, to participate in, control the defense, compromise and to defend such Claim. The indemnitor may not settle any claim without the consent of the indemnitee, except upon terms and conditions offered or consented to by the indemnitee, which consent shall not be unreasonably withheld. Neither participation nor control in the defense shall waive or reduce any obligations to indemnify or hold harmless.

17 Miscellaneous.

17.1 Definitions. Capitalized terms shall be interpreted as if the entire definition is set forth in full wherever any Capitalized term appears in this Agreement.

17.2 Headings and References. The headings of the Sections of this Agreement are for the convenience of reference only, and do not form a part hereof, and in no way define, limit, describe, modify, interpret or construe its meaning, scope or intent. Words indicated in parenthesis signify an abbreviation for the previous set of words or terms, so that when the abbreviation is used within the Agreement, it shall have the same meaning as a full statement of the words or terms. 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 Agreement.

17.3 Assigns. This Agreement shall be binding on and shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and permitted assigns.

17.4 Third Party Rights. This Agreement is intended to benefit each Merchant that approves You to Link to its Web site, and reciprocally, You are an intended third party beneficiary under each and every Merchant Agreement. As two examples, You gain certain rights for Payouts under the Merchant Agreement, and Merchants gain certain rights requiring You to cooperate regarding Chargebacks under this Agreement. You agree that Your consent is not necessary to modify any Merchant Agreement, even if the modification reduces or eliminates what would have otherwise been Your vested rights. You agree that Your rights under the Merchant Agreement do not exceed the Merchant's duties, as Your rights are limited by any defenses, claims and rights the Merchant may have.

17.5 Choice of Law. This Agreement is governed by the laws of California, except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts in Santa Barbara, California, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. You consent to such venue and jurisdiction. The application of the United Nations Convention on the International Sale of Goods is expressly excluded.

17.6 Relationships of Parties. 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 that would suggest to third parties that the relationship between the parties is anything other than that of independent contractor.

17.7 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, electrical outages, Internet service providers, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes or any cause beyond the reasonable control of such party.

17.8 Foreign and Other Laws. Commission Junction controls and operates its Web site from its offices in the United States of America and makes no representations or warranties that its content or use is legal in other locations. Access or use where illegal is prohibited. You are responsible for compliance with applicable local laws. You represent and warrant that You will refrain from using any such illegal programs or services as may be proscribed by Your jurisdiction, and that, if You are an individual, You were at least 18 years of age on the effective date of this Agreement.

17.9 Severability. If any term, provision, covenant or condition of this Agreement shall be, becomes, or shall be 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 and shall not be affected, impaired or invalidated thereby. The term, provision, covenant or condition that is so invalidated, voided or held to be unenforceable shall be modified by the parties to the extent possible to carry out the intentions and directives stated in this Agreement.

17.10 Waiver. 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.

17.11 Entire Agreement and Amendment. In conjunction with the matters considered herein, this Agreement (including the definitions that follow this provision) contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature binding except as stated in this Agreement. Except as provided in Section 13 above, this Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Except as specifically provided herein, each party waives their right to claim, contest or assert that this Agreement was modified, canceled, superseded or changed by any oral agreement, course of conduct, waiver or estoppel. Your use of the Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. Notwithstanding the preceding, Commission Junction may establish from time to time rules and regulations regarding Members' use of the Service ("Rules and Regulations"). These Rules and Regulations shall be published in the Members Only area of the www.cj.com Web site. To the extent that there is a conflict between this Agreement and the Rules and Regulations, the terms of the Agreement shall be controlling.

18 Definitions.

18.1 "Affiliate" means a person or organization that has entered into an Affiliate Agreement and operates a Web site that is paid for a sale, Lead and/or Click by a Visitor to a Merchant's Web site.

18.2 "Affiliate Agreement" means the Commission Junction Affiliate Service Agreement, as it may exist from time to time between Commission Junction and the relevant Affiliate.

18.3 "Affiliate Marketing" means a business relationship where an person or organization that operates a Web site may earn financial compensation by the achievement of Visitor sales, Leads, and/or Clicks through Links from such person or organization's Web site to one or more Web site(s) that pays for a sale, Lead and/or Click by a Visitor.

18.4 "CJ" means Commission Junction and each of its directors, officers, shareholders, agents, employees, licensees, attorneys, affiliates and Merchants.

18.5 "Click" refers to the action by a Visitor in relation to a Link, which causes the Visitor to receive through the Internet information related to a Web site(s),or that Web site operator's product(s) or service(s).

18.6 "Internet" means the internet as it currently exists, including, but not limited to, its associated world wide web, hypertext transfer protocol (http), file transfer protocol, wide area information servers, gopher services, telnet services, Usenet services, listserv services, electronic mail, and connected intranets generally available to the public (whether freely or through subscription), as well as all currently existing and future content delivery systems served through a computer system over a network using standard protocols, such as other protocols to wireless Internet, SMS viewers, HTML browsers, and HDML browsers.

18.7 "Lead" means a Visitor's action that occurs after a Click, as defined by a Web site operator, including filling out a form, joining a mailing list, or other mechanism to identify potential customers.

18.8 "Link" means an Internet connection between two Web sites. Typically, when a Visitor Clicks on a Link, the Visitor activates an HTTP hyperlink on an Affiliate's Web site that causes a Merchant's Web site to be served to the Visitor's browser. The Link may be in the form of text, a product image, a button, a banner or other format.

18.9 "Member" means a Merchant or Affiliate who has agreed to use the Service to facilitate managing, tracking, or reporting, and, as the case may be, the collecting or paying for the resulting performance of sales, Leads, and/or Clicks.

18.10 "Merchant" means a person or organization that has entered into a Commission Junction Merchant Services Agreement with Commission Junction and operates a Web site that pays for a sale, Lead and/or Click by a Visitor.

18.11 "Merchant Agreement" means the Commission Junction Merchant Service Agreement, as it may exist from time to time between Commission Junction and the relevant Merchant.

18.12 "Payout" means the financial compensation to You for a sale, Lead or Click that results from a Link from Your Web site to a Merchant's Web site.

18.13 "Service" means the standard Commission Junction Affiliate Marketing program, as it may exist from time to time, as detailed further throughout the Affiliate Agreement and this Agreement as they may exist from time to time.

18.14 "Visitor" means any third party person, other than the Affiliate who is hosting the Link and any of that Affiliate's agents, who Clicks on a Link; typically, an internet surfer.

18.15 "Web site" means a portion of the Internet, and "Web page" means a portion of a Web site.

18.16 "Your" means the possessive form of "You."

18.17 "Your Account" means a memo account kept on Your behalf, the balance of which increases by Your earnings through the Commission Junction referral program (see Section 5.6 above), decreases by any Chargebacks (see Section 6 above), increases by Your Payout earnings, decreases by any payments made to You and decreases by any Premature Termination fees (see Section 14.5 above).

18.18 "Your Link" means an Internet connection from Your Web site to a Merchant's Web site. The term "Your Link" does not imply any proprietary rights whatsoever.