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CONSORTE MEDIA MASTER SERVICES AGREEMENT

PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE REGISTERING FOR ANY CONSORTE MEDIA SERVICES. PARTICIPATION IN ANY OF THE CONSORTE MEDIA SERVICES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER FOR OR PARTICIPATE IN THE CONSORTE MEDIA SERVICES.

This CONSORTE MEDIA MASTER SERVICES AGREEMENT (this "Master Agreement" or "Agreement") is between Consorte Media, Inc., ("Consorte Media") and Company. "You" or "Company" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement. Consorte Media and Company may be referred to herein together as the "Parties", and each may be referred to herein as a "Party". For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Consorte Media and Company hereby agree as follows:

1. SERVICES; ATTACHMENTS.

(a) Consorte Media shall provide various Services (each, a "Services", and collectively, the "Services") to Company according to attachments to this Agreement upon which the Parties may agree in writing from time to time (each, an "Attachment", and collectively, the "Attachments").

(b) Each Attachment, which shall be deemed to incorporate this Agreement by reference, (i) shall contain additional terms and conditions that are specific to the Services that is provided pursuant to such Attachment and (ii) shall specify which Web sites, if any, are covered by such Attachment.

2. DEFINITIONS.

2.1 "Advertising Tag" means HTML or other code that Company implements on its website or in its advertising server in order to have Consorte Media Advertisements (as defined below) placed on Company Media (as defined below) and allow for the tracking of users in order to optimize the performance of advertising campaigns.

2.2. "Company Emails" means communications delivered to member email addresses that have given Company permission to send emails to member.

2.3. "Company Email List(s)" means a list of email address of persons who have provided Company with their permission to send a particular type of communication, such as promotions or newsletters, containing Creative (as defined below) via electronic mail over the Internet.

2.4. "Company Revenue Share" means the percentage of Net Consorte Media Revenue due to Company under this Agreement and as set forth in related Attachments.

2.5. "Consorte Media Advertisements" means marketing messages from third parties recruited by Consorte Media and from Consorte Media in the form of banners, text links, headline links, buttons and other such creative units determined by Consorte Media and its advertisers.

2.6. "Consorte Media Ad Network" means Consorte Media's centrally managed group of third party Web Sites and Email Lists through which Consorte Media can distribute Creatives.

2.7. "Consorte Media Pixel(s)" means cookies and other tracking technologies, such as web beacons, clear GIFs, web bugs, tracking pixels or action tags, which Consorte Media places on Company Media to track anonymous user activity.

2.8. "Consorte Media Services" means the solicitation and sale of advertising and other commercial promotion for placement on Company Media (as defined below) via Creatives. The Services also include the serving of relevant Consorte Media Advertisements on Company Media.

2.9. "CPA" means the cost per action as set forth in the Order.

2.10. "CPC" means the cost per click on an advertisement as set forth in the Order.

2.11. "CPM" means the amount payable for every one thousand (1000) advertising impressions as set forth in the Order.

2.12. "Creative(s)" means any type of advertising creative used by Company to deliver the Consorte Media Advertisements here under, including but not limited to, buttons, text links, banners, Video Creatives, pop-ups, emails and pop-unders.

2.13. "Landing Page" means the web page on Company's Web Site where Company collects lead data when generating Lead(s).

2.14. "Lead(s)" means the data collected via a form for such collection on Company Media.

2.15. "Media" means Web Sites and Email Lists.

2.16. "Net Consorte Media Revenue" means the revenue actually received by Consorte Media resulting from the display of the Consorte Media Advertisements on Company Media less agency fees, ad serving fees, charge backs, refunds and other such offsets.

2.17. "Order" means the business terms as outlined in the related Attachment.

2.18. "User Data" means information provided by or obtained by Company from users of Consorte Media's Services, including personally identifiable information.

3. CONSORTE MEDIA ADVERTISEMENTS.

3.1. Site Approval. Implementation of the Consorte Media Services for use of the Consorte Media Advertisements is subject to Consorte Media's prior approval of Company Media. All utilized Company Media must be approved by Consorte Media prior to Company placing the Advertising Tag on such Company Media. Consorte Media reserves the right to deny or revoke participation of any Company or Company Media in the Consorte Media Services at any time in its sole discretion.

3.2. Advertising Tag.

(a) License. Subject to the terms and conditions of this Agreement, Consorte Media hereby grants to Company a non‑exclusive, non‑transferable, non‑sublicensable, royalty free license to use the Advertising Tag on Company Media for the sole purpose of participating in the Consorte Media Services. This is a license, not a sale, so title to the Advertising Tag shall not pass to Company under any circumstances.

(b) Delivery and Implementation.

Consorte Media will provide Company one or more Advertising Tag(s) and instructions to implement the Advertising Tag(s) on Company Media following the execution of this Agreement and any related Attachments. Company shall follow such instructions in implementing the Advertising Tag(s), and shall implement the Advertising Tag(s) on all Company Media approved by Consorte Media. Company must ensure that any Consorte Media Advertisement published by Company or any links between the Company Media and the Consorte Media Services properly utilize any special link formats or unique identification numbers provided by Consorte Media. Company may earn revenue only with respect to activity occurring directly through properly coded Consorte Media Advertisements and/or hyperlinks; Consorte Media will not be liable to Company with respect to any failure by Company to use the specially coded hyperlinks and/or Consorte Media Advertisements as they are delivered by Consorte Media to Company, including to the extent that such failure may result in any reduction of revenue that would otherwise be payable to Company pursuant to this Agreement. For clarity, Consorte Media will not be liable for paying revenue on activity that is not correctly tracked and reported because the Consorte Media Advertisement published by Company and/or any links between the Company Media and the Consorte Media Services are not properly coded or formatted by Company.

(c) License Restrictions. Company shall not use the Advertising Tag for any other purpose other than that set forth in Section (a) above. Without limiting the foregoing, Company shall not: (i) use the Advertising Tag for the purposes of developing a product that will be owned by a third party or that would compete with Consorte Media's products or Services;(ii) sublicense, rent, lend, lease, permit third party access to, or use of, the Advertising Tag; (iii) copy, distribute, reproduce, sell, use or allow access to the Advertising Tag, except as explicitly permitted under this Agreement or related Attachments; (iv) modify, adapt, translate, or prepare derivative works from the Advertising Tag; or (v) remove, obscure, or alter Consorte Media's copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Advertising Tag.

3.3. Company License. Company grants Consorte Media:

(a) A worldwide, royalty free license to (i) link to the Company Media(s); (ii) anonymously track user activity through the Advertising Tags placed on Company Media(s); and (iii) serve Consorte Media Advertisements into the Company Media(s) for the permitted uses set forth in this Agreement or related Attachments.

(b) A limited, non-exclusive, non-assignable (unless assigned to a Consorte Media affiliate under this Agreement) royalty free license to use the User Data. Consorte Media will use the User Data in compliance with Consorte Media's existing privacy policy. In addition to Company's current privacy policy, Company agrees that in connection with this license grant that they will adopt a privacy policy in conformation with Section 8.

Except as expressly set forth in this Agreement or related Attachments, neither party grants the other party any other licenses to its content, proprietary materials, and intellectual property, including all copyrights, trademarks, trade names, Services marks, and patents, and all such rights are reserved.

3.4. Company Responsibilities. Company is responsible for obtaining all equipment, web access and connections necessary for Company to participate in the Consorte Media Services at Company's own expense. Company agrees to (i) take commercially reasonable measures to maintain the web server supporting the Company Media in order to ensure that the Company Media is available twenty four (24) hours a day, every day of the year. Company shall notify Consorte Media as soon as Company becomes aware that its web server is not operating and as soon as it becomes available again; and (ii) not include in its Company Media or its linkages any software, tools or text that could cause Consorte Media's or its users' websites, systems and networks harm from reduced system performance, system unavailability, data loss, or other damage.

3.5. Financial Terms.

(a) Net Company Revenue Share. Consorte Media will pay Company the Net Company Revenue Share; provided, however that Consorte Media may adjust the Net Company Revenue Share by ignoring click-throughs and/or withholding payments or crediting back payments made to Company if Consorte Media, using commercially reasonable and reliable information, determines, that such click‑throughs and/or payments are fraudulent or invalid in nature, including without limitation, those set forth in Section 6.2.

(b) Payment Terms. Consorte Media shall pay Company the Net Company Revenue Share on the first day of the third month after the month in which such Net Company Revenue Share was generated. For example, Consorte Media will pay Company the Net Company Revenue Share for April (if any) on July 1. Notwithstanding the foregoing, if the Net Company Revenue Share for any given month or calendar fiscal year is five dollars ($5) or less, Consorte Media shall not be liable to Company for any such payment. Further, if the Net Company Revenue Share for any given month is between five dollars ($5) and ninety-nine ($99), Consorte Media will roll such amount over to the subsequent payment period, and shall not make any payment to Company until the accrued Net Company Revenue Share for a payment period is at least one hundred dollars ($100). Payment will be made in US dollars. If Consorte Media's advertisers pay Consorte Media in any other currency, Consorte Media will calculate payment using the average exchange rate as published by a nationally recognized source (e.g., Oanda). Consorte Media may offset payments by any amounts Company owes to Consorte Media. Any dispute regarding a payment from Consorte Media here under must be submitted to Consorte Media in writing within thirty (30) days of posting date of such payment or it shall be deemed waived. Payment shall be calculated and finally settled solely based on records maintained by Consorte Media, and no other records will be deemed relevant for payment calculations or determinations. If Consorte Media pays Company by check, Company shall collect such payment within one hundred and eighty(180) days of the date of the check.

4. [Section Intentionally Left Blank]

5. SERVICES.

5.1. License Grant by Company. Company grants to Consorte Media a worldwide, royalty free license to place a Consorte Media Pixel on e Company Media(s) (regardless of whether or not a Consorte Media Advertisement appears on such page), from which Consorte Media may anonymously track user activity. Company agrees that in connection with this license grant that they will adopt a privacy policy in conformance with Section 8.

5.2. Use of Information. Company agrees Consorte Media can collect data from the Company Media through the use of Consorte Media Pixels or Lead(s) and use, display, distribute and exploit this data on an anonymous basis (in accordance with its privacy policy). For avoidance of doubt, Consorte Media shall own all User Data.

6.REPORTING.

6.1. Consorte Media.

(a) During the entire term of this Agreement, as the information is reasonably available, Consorte Media will provide Company, solely for informational purposes, access to its on‑line reporting system, on which Company may view number of click‑throughs on ads delivered by Consorte Media, and total revenues for each day. Consorte Media shall use commercially reasonable efforts to display the results, but for the removal of doubt, Consorte Media does not guarantee the amounts, if any, to be paid to Company as a result of this Agreement, and all Company Revenue Share paid to Company hereunder will be strictly based on Consorte Media's calculation of the Company Revenue Share at the end of each payment period.

6.2. Impression and Click Fraud. If, in Consorte Media's reasonable business judgment activity related to the Company's website is suspected or determined to be so-called "click‑fraud" or "impression fraud" (the illicit manipulation of advertising revenue), , whether in any automated or human way, by the use of a person, an automated script or a computer program (for example, online robots or "bots") to click on Consorte Media Advertisements, or any other fraudulent means, to increase impressions, skew results or imitate a legitimate user of a web browser reloading or clicking on an ad for the purpose of generating an improper click or impression value and generating revenue, Consorte Media may suspend or otherwise disable the other's account until such time as the matter is resolved to Consorte Media's satisfaction. Company acknowledges that Consorte Media, or a third-party designated by Consorte Media, may use cookies to monitor visitor information in order to track suspicious clicks through source and behavior of the click traffic. Upon advance written notice to Company alerting Company of any such click fraud or impression fraud and allowing Company sufficient time to investigate such fraudulent activity, Consorte Media retains the right to not credit the Company for those clicks or impressions that it reasonably determines or suspects are fraudulent.

 

7. COMPLIANCE WITH LAWS.

7.1. Company Compliance with Law. Company will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Consorte Media Services to transmit or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent, obscene, lewd, pornographic, promote violence, hate, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, contain viruses, or is otherwise objectionable, as reasonably determined by Consorte Media; (b) transmit or otherwise distribute advertisements or content that infringe upon another party's intellectual property rights or other proprietary, contractual, or fiduciary rights or obligations; (c) bypass Consorte Media's robot exclusion headers (including using any device, software, or routine to accomplish that goal), or interfere or attempt to interfere with the proper working of the Consorte Media Services or prevent others from using the Consorte Media Services; or(d) use the Consorte Media Services for any fraudulent or unlawful purpose. Company further agrees not to use any automated means, including agents, robots, scripts, or spiders, to access or manage Company's account or to monitor or copy the Consorte Media Services or the content contained therein. Violation of any of the foregoing may subject Company to state and federal penalties and other legal consequences. Consorte Media reserves the right, but will have no obligation, to investigate Company's use of the Consorte Media Services in order to determine whether a violation of this Agreement or related Attachments has occurred or to comply with any applicable law, regulation, legal process or governmental request.

 

8. PRIVACY. Company and Consorte Media acknowledge that adherence to fair information collection practices is of utmost importance. During the Term of this Agreement, Company and Consorte Media agree that their respective websites will feature an easy‑to‑understand privacy policy, linked, at a minimum, conspicuously from the home page, with a link that contains the word "Privacy," that (i) adheres to all federal and state laws governing personal information and fair information collection; (ii) clearly discloses their privacy and information collection practices; and (iii) clearly identifies the collection and use of information gathered in connection with any third party advertiser and the reporting activities related thereto. If the Company targets users located outside of the United States, the Company additionally agrees that its information collection and disclosures adhere to all local laws, including European Union laws on data protection and data transfer. Consorte Media requires disclosure for Company on Company Media similar to the language set forth in Exhibit A hereto. Consorte Media reserves the right to change its specified disclosure language, including requiring certain disclosures as mandated by law (including self‑regulation or practice), upon written notice to Company, and Company agrees to cooperate to post such revised disclosure within five (5) business days following such receipt of notice, or otherwise post within ten (10) business days following receipt of such notice such other disclosure as may be mutually agreeable to the parties. Consorte Media shall have the right to terminate this Agreement on five (5) days prior written notice to Company if Company breaches this Section 8 and fails to remedy such breach within said five (5) day period.

 

9. RESTRICTIONS.

9.1. Company. Company shall not, and will not authorize or encourage any third party to (i) fraudulently or purposely manipulate the content of the Company Media, including without limitation, "ghosting", "cloaking" or providing misleading meta tags in order to "fool" the Consorte Media Services so that it provides less contextually relevant results (ii) intentionally place Creatives on blank Media or on Media with no content; stack Creatives (e.g. place on top of one another so that more than two (2) ads are next to each other); or place in such a fashion that may be deceptive to the visitor; (iii) place Consorte Media Advertisements on any Media other than the Media for which the advertisement was accepted,; (iv) unless specifically approved by Consorte Media in writing, resell any Creative's to other websites, companies, or any other third parties; (v) serve creative's from any location other than the Consorte Media server. (Stored images that are loaded from a different location will not count towards any statistic or payment); (vi) add to, subtract from or modify the Consorte Media Advertisements in any way (including making changes to the order of the Consorte Media Advertisement or any information within the Consorte Media Advertisements, making changes to any trademark, or making changes to notices included in the Consorte Media Advertisements (e.g., copyright and trademark notices)); (vii) cache Consorte Media Advertisements; (viii) display any content that would alter or obscure the appearance of the Consorte Media Advertisements or any other content in the Consorte Media Advertisements; (ix) generate fraudulent impressions of or fraudulent clicks on any advertisements served through the Consorte Media Services, including through repeated manual clicks, the use of robots or other automated tools or any other method that may lead to artificially high numbers of impressions, downloads, or clicks; (x) give users of Company Media or anyone else any kind of encouragement or incentive to click on Consorte Media Advertisements, including but not limited to language directing users to click on the Consorte Media Advertisements or informing users that they can support Company Media by clicking on the Consorte Media Advertisements; (xi) display all or part of the Consorte Media Advertisement on or through any software application, or use any software application that is downloaded onto user computers to drive traffic to Company Media; and (xii) display any webpage as an alternative to the webpage accessed by clicking on a Consorte Media Advertisement (including but not limited to displaying an additional instance of the same advertiser page that is displayed by clicking on the Consorte Media Advertisement) or redirect users who have clicked on a Consorte Media Advertisement. Company agrees to refer to Consorte Media, and not directly to any advertiser or advertising services provider, all communications regarding any matter arising out of Company's use of the Consorte Media Services.

10. REPRESENTATIONS AND WARRANTIES.

10.1. Company Representation and Warranties. Company makes the following representations, warranties and covenants to Consorte Media: (i) it has the full right, power, and authority to enter into this Agreement and related Attachments; (ii) the execution of this Agreement and related Attachments and performance of its obligations under this Agreement and related Attachments do not and will not violate any other agreement to which it is a party; (iii) this Agreement and Attachments constitutes a legal, valid and binding obligation when agreed to; (iv) the Company Media will at all times comply with the Consorte Media Editorial Standards; (v) the Company Media does not and will not (a) in fringe or misappropriate any third‑party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person; (vi) that its privacy policy complies with Section 8 and clearly informs its users that tracking technology will be used by third party advertisers on Company Media and discloses the type of information that will be collected in connection there with; and (vii) that it will use the Consorte Media Services in compliance with all applicable local, state, national, and international laws, rules, and regulations, including any laws regarding the transmission of technical data exported from Company's country of residence.

10.2. Consorte Media Representation and Warranties. Consorte Media makes the following representations, warranties and covenants to Company: (i) it has the full right, power, and authority to enter into this Agreement and Attachments; (ii) the execution of this Agreement and Attachments and performance of its obligations under this Agreement and Attachments do not and will not violate any other agreement to which it is a party; (iii) this Agreement and Attachments constitutes a legal, valid and binding obligation when agreed to, and (iv) it maintains adequate rights in and to the Consorte Media Services and Consorte Media Advertisements to grant the rights granted herein.

 

11. OWNERSHIP. As between Company and Consorte Media and subject to the limited rights and licenses granted herein, (i) Company retains all right, title and interest, including without limitation, all intellectual property rights, in and to the Company Media, including content thereon; and (ii) Consorte Media retains all right, title and interest, including without limitation, all intellectual property rights, in and to the Consorte Media Services, Advertising Tag, Behavioral Services, Consorte Media Pixels, Consorte Media Advertisements, User Data and Consorte Media Websites. Any rights not expressly granted herein are reserved to each of the parties.

 

12. DISCLAIMERS; NO WARRANTIES.

12.1. Consorte Media. THE CONSORTE MEDIA SERVICES (INCLUDING THE ADVERTISING TAG, CONSORTE MEDIA ADVERTISEMENTS, AND CONSORTE MEDIA PIXELS) ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OUT OF A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, QUALITY, PRODUCTIVENESS OR CAPACITY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. CONSORTE MEDIA, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CONSORTE MEDIA SERVICES WILL BE CORRECT, UNINTERRUPTED OR ERROR‑FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONSORTE MEDIA SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CONSORTE MEDIA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONSORTE MEDIA SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CONSORTE MEDIA MAKES NO GUARANTEE REGARDING THE NUMBER, QUALITY, OR CONTENT OF ANY CONSORTE MEDIA ADVERTISEMENTS, OR CONSORTE MEDIA PIXELS OR THE TIMING OF DELIVERY OF SUCH CONSORTE MEDIA ADVERTISEMENTS, OR CONSORTE MEDIA PIXELS CONSORTE MEDIA SHALL NOT BE RESPONSIBLE FOR ANY ADS OR WEBSITES THAT ARE SERVED THROUGH OR LINKED FROM THE CONSORTE MEDIA SERVICES. CONSORTE MEDIA MAKES NO GUARANTEE REGARDING THE LEVEL OF IMPRESSIONS OR CLICKS ON ANY CONSORTE MEDIA ADVERTISEMENT, THE TIMING OF DELIVERY OF SUCH IMPRESSIONS AND/OR CLICKS IN CONNECTION WITH THE CONSORTE MEDIA SERVICES. COMPANY UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF CONSORTE MEDIA'S BARGAIN HEREUNDER, AND CONSORTE MEDIA WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.

13. INDEMNIFICATION; HOLD HARMLESS.

13.1. Consorte Media Indemnification. Consorte Media will indemnify, defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Company, which (i) alleges that Consorte Media Advertisements infringe any valid trademark or copyright; (ii) alleges that Consorte Media's technology used in connection with providing Consorte Media Advertisements infringes any valid intellectual property right; or (iii) relates to or arises out of Consorte Media's breach of its representations and warranties in this Agreement; provided that Company promptly notifies Consorte Media in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Consorte Media, and cooperates fully with Consorte Media (at Consorte Media's request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for Consorte Media to perform the foregoing. Consorte Media will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to Company, without Company's prior consent, which will not be unreasonably withheld. In no event will Consorte Media have any obligations to Company under this Section with respect to claims that result from or arise out of Company's modification of the Consorte Media Advertisements, or Consorte Media Pixels in any way or use of the Consorte Media Services in violation of the Agreement.

13.2. Company Indemnification. Company will indemnify, defend and/or settle, and pay damages awarded pursuant to, any third party claim brought against Consorte Media, which (i) alleges that Company's Websites infringe any valid intellectual property right; (ii) arises out of Company's modification of the Consorte Media Advertisements, Consorte Media Services, or Consorte Media Pixels in any way or use of the Consorte Media Advertisements, Consorte Media Services, or Consorte Media Pixels, in violation of the Agreement; (iii) relates to personal information disclosures of users of Company Media in violation of its privacy policy; or (iv) relates to or arises out of Company's breach of its representations and warranties in this Agreement or Attachments; provided that Consorte Media promptly notifies Company in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Company, and cooperates fully with Company (at Company's request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for Company to perform the foregoing. Company will not enter into any settlement or compromise of any such claim without Consorte Media's prior consent, which will not be unreasonably withheld.

 

14. LIMITATION OF LIABILITY AND DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREIN, OR A BREACH OF SECTION 16, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREIN, OR A BREACH OF SECTION 16, IN NO EVENT WILL EITHER PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

 

15. TERM AND TERMINATION.

15.1. Term. Unless earlier terminated as set forth herein, this Agreement is effective on the Effective Date and shall remain in effect for the period outlined in the related Attachments (the "Term"). Unless Company provides written notice to Consorte Media at least sixty (60) days prior to the end of the Term or any renewal term of its intention not to renew the Attachment, the related Attachment shall automatically renew for successive one-year terms.

15.2. Termination.

(a) For Breach. Either party may terminate this Agreement and Attachments effective immediately, if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach within thirty (30) days after receiving notice from the non‑breaching party. Without limiting the foregoing, in the event that Company removes the Advertising Tag from Company Media or otherwise blocks the operation of Consorte Media, without giving Consorte Media appropriate notice of termination, such action shall be deemed a material breach of Agreement. In addition to all of the other remedies available to it, Consorte Media may withhold any and all payments due to Company under this Agreement or related Attachment for the two(2) months prior to such material breach and require Company to refund to Consorte Media any payments already paid to Company by Consorte Media for such two (2) month period.

(b) For Financial Reasons. Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party becomes insolvent; (ii) the other party discontinues its business; or (iii) the other party is dissolved or liquidated.

Notwithstanding the foregoing, Consorte Media may terminate its Services to Company for any reason and at its sole discretion.

15.3. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement and related Attachments, (i) Company's right to use the Advertising Tag, Consorte Media Pixels, and Consorte Media Services shall immediately terminate and Company shall immediately remove the Advertising Tag, Consorte Media Advertisements and Consorte Media Pixels from all Company Media; and (ii) Consorte Media's right to use the Company Media(s) shall immediately terminate. The following provisions shall survive any expiration or termination of this Agreement: Sections 3.5 (a)(b), (for amounts due as of the date of termination), 3.2(c), 7 through 11, 13, 14, 15.3, 16 through 18.

16. CONFIDENTIALITY.

16.1. "Confidential Information" means any information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party"), either directly or indirectly in writing, orally or by inspection of tangible objects which is either (i) designated or marked as "Confidential" at the time of disclosure, or (ii) disclosed under circumstances reasonably indicating that such information is confidential. Without limiting the foregoing, all Consorte Media software, technology, programming, technical specifications, materials, guidelines and documentation Company learns, develops or obtains that relate to the Consorte Media Services, reports, impressions, click‑through rates or other statistics relating to the Consorte Media Services provided to Company by Consorte Media, the Advertising Tag, Consorte Media Pixels, all information relating to the Advertising Tag and Consorte Media Pixels, and the terms and conditions of this Agreement shall be deemed the Confidential Information of Consorte Media. During the term of this Agreement and for three (3) years following the expiration or termination of this Agreement, (i) the Receiving Party agrees that it shall not use any Confidential Information of the Disclosing Party other than as expressly permitted under the terms of this Agreement or as expressly authorized in writing by the Disclosing Party, (ii) the Receiving Party shall use the same degree of care to protect Confidential Information as it uses to protect its own most highly confidential information, but in no circumstances less than reasonable care, and (iii) the Receiving Party shall not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with it consistent with this Section 16.

16.2. Exceptions. The provisions of this Section 16 will not apply to Confidential Information to the extent that: (i) such information was generally known or otherwise in the public domain prior to disclosure hereunder, or becomes so known subsequent to such disclosure through no fault of the Receiving Party; (ii) such information was received by the Receiving Party without restriction from a third party not under an obligation to the Disclosing Party not to disclose it and otherwise not in violation of the Disclosing Party's rights; or (iii) either party is required to disclose such Confidential Information as a result of a valid order of a court or other governmental body, or as otherwise required by applicable law.

16.3. Effect of Termination. Upon the expiration or termination of this Agreement and related Attachments, the Receiving Party promptly shall return, or at the Disclosing Party's option, destroy, any copies of Confidential Information in its possession or control.

17. PUBLICITY/MARKETING.

17.1. Press Releases. Either party may issue additional press releases as may be mutually agreed to from time to time. Each party shall have the opportunity to review and approve each additional press release prior to its issuance, provided approval is not unreasonably withheld.

17.2. Marketing. Either party may make appropriate and truthful reference to the other party in its company and promotional literature and on its websites and shall have the right to use the other's name in connection with all permitted uses set forth in this Agreement and related Attachments; provided that such party properly attributes the other party's trademarks and complies with the other party's guidelines.

17.3. License to Consorte Media Trademarks. Subject to the terms and conditions of this Agreement, Consorte Media grants to Company a limited, non‑exclusive, non‑transferable right (with no right to sublicense) to display the Consorte Media Marks, in the form provided by Consorte Media, on the Company Media and in promotional literature solely for the purpose of marketing and promoting the Consorte Media Services as expressly set forth in this Section of this Agreement. As used in this Agreement, "Consorte Media Marks" means any trademarks, service marks, trade names, brands, logos, or other distinctive branding features provided by Consorte Media or included with the Consorte Media Advertisements. Consorte Media retains the right to modify or change its trademark guidelines at any time. Consorte Media reserves all rights in and to the Consorte Media Marks and changes there to. Company acknowledges that all goodwill generated through Company's use of the Consorte Media Marks will inure to the benefit of Consorte Media and hereby assigns and shall assign to Consorte Media any and all goodwill generated through Company's use of the Consorte Media Marks, without any payment or other consideration of any kind to Company, and Company further agrees to take all actions necessary to effect such assignment. Company must not and hereby agrees that it will not remove, obscure, modify, or alter any Consorte Media Marks or any other hyperlinks or codes incorporated within the Consorte Media Advertisements. Upon termination of this Agreement, Company shall immediately cease to use the Consorte Media Marks.

17.4. License to Company Trademarks. Subject to the terms and conditions of this Agreement, Company grants to Consorte Media a limited, non‑exclusive, non‑transferable right (with no right to sublicense) to display the Company Marks, in the form provided by Company, on the Consorte Media Websites, Consorte Media Services and in promotional literature solely for the purpose of marketing and promoting the Consorte Media Services and Company as expressly set forth in this Section of this Agreement. As used in this Agreement, "Company Marks" means any trademarks, service marks, trade names, brands, logos, or other distinctive branding features provided by Company. Company retains the right to modify or change its trademark guidelines at any time. Company reserves all rights in and to the Company Marks and changes there to. Consorte Media acknowledges that all goodwill generated through Consorte Media's use of the Company Marks will inure to the benefit of Company and hereby assigns and shall assign to Company any and all goodwill generated through Consorte Media's use of the Company Marks, without any payment or other consideration of any kind to Consorte Media, and Consorte Media further agrees to take all actions necessary to effect such assignment. Consorte Media must not and hereby agrees that it will not use the Company Marks other than as provided by Company and will not remove, obscure, modify, or alter any Company Marks. Upon termination of this Agreement and related Attachments, Consorte Media shall immediately cease to use the Company Marks.

18. GENERAL PROVISIONS.

18.1. Non assignment/Binding Agreement. Neither Company nor Consorte Media may assign this Agreement or Attachments without the prior written consent of the other party, which shall not be unreasonably withheld; provided however, that either Company or Consorte Media may, without consent, assign this Agreement and Attachments (i) to any affiliate; or(ii) to any purchaser of all or substantially all of its assets or to any successor by way of merger, consolidation or similar transaction. Subject to the foregoing, this Agreement and related Attachments will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of this Section will be void.

18.2. Independent Contractors. The relationship of the parties under this Agreement and Attachments is that of independent contractors. Neither party will be deemed to be an employee, agent, partner nor legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

18.3. Notices. Any notice required or permitted under the terms of this Agreement and Attachments or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, (c) sent by confirmed facsimile or email with read receipt, or (d) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address. All communications will be sent to the addresses set forth in the applicable Attachment. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, one (1) day after delivery to an overnight air courier Services or upon receipt of confirmation of facsimile or email.

18.4. Force Majeure. Neither party will be liable to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, power failures, fire and explosions, but the inability to meet financial obligations is expressly excluded.

18.5. Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.

18.6. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

18.7. Integration. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.

18.8. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

18.9. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and each party hereby consents to the personal jurisdiction and venue thereof.

18.10. Non-Solicitation. Company recognizes that Consorte Media has proprietary relationships with the third-party advertisers which provide Creatives to Consorte Media and Company agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Company to be an advertising client and/or customer of Consorte Media, for purposes of offering products or services that are competitive with Consorte Media (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of this Agreement or Attachments, provided however, that the foregoing restriction shall not apply to advertisers with whom Company already has a relationship prior to the placement of advertising on Company Media on behalf of such advertisers by Consorte Media, as explicitly proven by documented evidence of such prior relationship provided by Company to Consorte Media immediately upon Company's written request.

18.11. Non-Solicitation of Persons. A party hereunder shall not directly or indirectly solicit or offer employment to, or directly or indirectly accept Services from, an employee or contractor of the other party, or an employee of any such contractor, or cause such solicitation or hiring, during the Term and for a period of six (6) months following the termination or expiration of the Term, without the prior written consent of the other party. For purposes of this Agreement, use of general employment advertising and independent employment agencies, if not directed at one or more of the other party's employees or contractors or contractor's employees, shall not constitute solicitation.

18.12. Other Agreements. Nothing in this Agreement shall be deemed to restrict Consorte Media from providing Consorte Media Services to any other party.

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement.

EXHIBIT A

CONSORTEMEDIA'S SUGGESTED PRIVACY POLICY LANGUAGE

"We use a third-party advertising campaign company to serve ads when you visit our website. This company may use information (not including your name, address, email address or telephone number) about your visit to this website in order to provide advertisements about goods and services that may be of interest to you. In the course of serving advertisements to this site, our third-party advertiser may use cookies, web beacons, clear GIF(s), pixel tags web bugs, action tags, or similar technologies to help present such advertisements, and to help measure and research the advertisements' effectiveness. Our third-party advertiser may also use cookies, web beacons, clear GIF(s), pixel tags, web bugs, action tags or similar tracking technologies on our website without the serving of any advertisements. If you would like more information about this practice and to know your choices about not having this information used by this company, please click here http://networkadvertising.org/consumer/opt_out.asp."

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