THIS ADVERTISING AGREEMENT (the "Agreement") is entered into by and between Trancos Inc. ("Trancos") and the applying party submitting the application for merchant status (the "Merchant"), also referred to herein jointly as the parties ("Parties", each a "Party"). This Agreement supersedes any and all prior agreements, whether written, oral, express, or implied, of the Parties with respect to the Campaign set forth herein. The Parties agree to be legally bound as follows:
|1.1.||"User" means any person using the Internet. "Action" means a User's completion of an action requested by the Merchant. This includes, but is not limited to, a sale, a click, a lead and an impression (viewing of an advertisement). Detailed definition of "Action" is provided at the top of this agreement. "Campaign" means the product or service for which Actions are being provided to the Merchant by the Trancos Network. "Network" means the advertising network operated by Trancos. "Ad" means the advertisement in the form of graphic or text supplied to Trancos for inclusion in the Network and to be made available for Affiliate use when promoting Merchantís Campaign.|
|2.1.||Merchant websites must not be associated with or contain any illegal activity, or pornographic, obscene, racist, or hateful content, or deceptive advertising, piracy, libelous or defamatory statements. Merchant websites must not contain any mechanisms that could be downloaded on to a Userís computer without the Userís explicit knowledge and consent.|
|2.2.||Merchant websites and advertising activity must be compliant with all relevant laws, including but not limited to the Can-Spam act of 2003.|
|2.3.||In its sole discretion, if at any time Trancos deems the Merchantís website is contrary to the terms set out in the Agreement, the merchant shall be terminated from the Network without the required 5 days notice and Trancos shall refund any unused portion of their prepaid balance.|
|2.4.||In the event that the merchantís site to which traffic is going fails or goes down for more than 20 minutes or the tracking pixel is taken off said site, placed improperly or malfunctioning on any given day, (down date), without prior proper notice to Adfish, then merchant shall pay Adfish based on the number of clicks in the adfish reporting system and the prior day conversion rate plus 15%.|
|2.5.||Should Merchant suspect fraudulent actions, Merchant must immediately notify Adfish and must return the fraudulent actions within seven (7) days to Company along with proof as to why each individual lead is fraudulent. If Client fails to return the Fraudulent Leads in the time and manner prescribed herein said Fraudulent Leads shall be considered accepted and valid by Client.|
|3||Advertising Services and Warranties.
|3.1.||Merchant hereby grants to Trancos and its Affiliates a non-exclusive, limited, revocable license to market, display, copy, transmit, and promote the Ad in connection with its obligations hereunder.|
|3.2.||Trancos' sole obligation to the Merchant under this Agreement with respect to Ads shall be to provide such Ads for placement on the Network. The advertising services provided by Trancos are provided "as is". Trancos makes no warranties, guarantees, promises, or estimates, expressed or implied, oral, written or otherwise except as specifically set forth herein, and does not guarantee Campaign performance on the Network, including but not limited to click to Action conversion rates, response rates or conversion rates from Action to sale.|
|3.3.||Each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not expressly provided for in this Agreement|
|4||Reporting and Payments.
|4.1||Merchant shall report Actions to Trancos in real-time using tracking pixels. Merchant can optionally provide their own unique Action identifier at the time the tracking pixel is displayed.|
|4.2||Merchant shall report the total number or Actions for a calendar month within five days of the beginning of the subsequent calendar month. Merchants who fail to do so will be billed for the total number of tracking pixels they displayed.|
|4.3||Since each display of the tracking pixel by the Merchant represents a lead reported in real time to a Trancos Affiliate, in the event of a discrepancy between the total number of Actions reported by the Merchant (as per 4.2) and the total number of tracking pixels displayed by the Merchant (as per 4.1), the total number of tracking pixels displayed by the Merchant will be used for billing purposes.|
|4.4||Merchant shall make payment for the reported number of actions no later than fifteen (15) days after the month end in which the Actions were generated, otherwise a monthly 1.5% interest fee will charged. All costs of collection, including reasonable attorneyís fees and expenses, incurred by Company shall be borne by Merchant.|
|4.5||Merchant will provide ADFISH with unique tracking links. ADFISH will have access to live reporting of campaign statistics such as impressions, clicks, units, etc. via the Internet through Merchant's Tracking Center. Additionally, Merchant shall place pixels where it feels necessary on behalf of ADFISH in order to track the units generated from the campaign. Merchant shall be responsible for the accuracy of the pixel placement and the results it yields. If Merchant places said pixel incorrectly and the pixel fired multiple times per action, then Merchant will be responsible for paying for each time it fires. Merchant agrees that they will never remove the tracking pixels, change their location or alter them in anyway. ADFISH will also track campaign statistics through their own reporting system. Payment will be owed and calculated based on statistics from the Party that shows the greater quantity of units. In addition, Merchant shall be responsible for filtering out ineligible leads/actions/sales, including but not limited to duplicates, scripting, automated submits of any kind, bad words, invalid phone numbers, or invalid addresses before the customer advances to the page in which the pixel is fired and will therefore be responsible for ensuring that pixels fire only on eligible units. Eligible units shall be considered billable units.|
|4.6||Audit Rights: Adfish shall have the right, upon 30 days written, to have an auditor, reasonably acceptable Merchant, examine the records of Merchant pertaining to this Agreement during regular business hours and in such a manner as not to interfere with Merchantsí normal business activities. Such examination shall be reasonably limited in scope and duration to verify the completeness and accuracy of fees, reporting, credits or payments made or due to Adfish for the period examined. In the event that such examination shall disclose that fees, credits or payments for any period were incorrectly calculated, Merchant shall promptly pay to Adfish an amount equal to the amount of any underpayment. The cost of any such audit shall be borne by Adfish, provided however that if the audit identifies an underpayment equal to or greater than three percent (3%), Merchant shall pay to Adfish the costs of that audit, the payment due and interest accrued. Merchant shall be obligated to retain books and records pertaining to any payment calculations under this Agreement for at least one year after the end of each Campaign.|
|5||Indemnification and Limitation of Liability.
|5.1||Each party hereto agrees to indemnify and hold harmless the other party and each if its agents, officers, directors and employees against all liability to third parties resulting from the acts or failure to act of such indemnifying party, or any of its customers or users.|
|5.2||UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR COSTS, DIRECT OR INDIRECT, (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM MERCHANT PARTICIPATION IN TRANCOSíS NETWORK. TRANCOS SHALL NOT IN ANY EVENT BE LIABLE TO MERCHANT FOR MORE THAN THE AMOUNT PAID TO TRANCOS BY MERCHANT FOR SERVICES RENDERED HEREUNDER. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST TRANCOS MORE THAN ONE YEAR AFTER THE DATE OF SERVICE.|
|6.1||Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.|
|7.1||Trancos reserves the right to take appropriate legal action to cover its damages against any Merchant that violates the terms of this Agreement, or commits fraudulent activity against Trancos. Except as otherwise specified, the rights and remedies granted to a Party under the Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.|
|8.1||The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of California.|
|9.1||During the term of this Agreement and for a period of 180 days thereafter, Client agrees that it will not engage, contract with, license, or permit any person, firm, or entity to represent Client in any performance-based advertising relationship with any of Company web site partners, Media Sites, affiliates, including, without limitation, those that are part of the Company network of websites or any entity that was such a partner or affiliate of Company as of six (6) months prior to the conclusion or termination of this Agreement, without prior written approval by authorized party at Company.|
|10.1||Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.|
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