HasOffers™ Services Agreement

This HasOffers™ Services Agreement (the “Agreement”) is between HasOffers™, an Internet property of HasOffers, Inc., a Washington State corporation, located at 2220 Western Avenue, Seattle WA 98121 (“HasOffers™”, “we” or “us”) and You ( “Network Operator,” or “you”). HasOffers™ and Network Operator shall collectively be known herein as the “Parties”

1. Conditions Precedent.

HasOffers’ obligations under this Agreement are expressly conditioned upon: (i) HasOffers’™ receipt of your online application submission to become a Network Operator (the “Application”) which, receipt by HasOffers of such Application constitutes your agreement to the terms of this Agreement, HasOffers’™ use of cookies, and your acceptance of the HasOffers™ Privacy Policy, which can be found at http://www.hasoffers.com/privacy-policy/; and (ii) HasOffers’™ approval of your Application, at HasOffers’™ sole discretion.

This Agreement, including the HasOffers™ Privacy Policy, may be amended or modified by HasOffers™ after providing Network Operator, with seven (7) days prior written notice sent to the email address supplied by you with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Should we make any such amendments or modifications and notify you of same as set forth above and you continue to use the HasOffers™ Platform, as defined below, at any time after seven (7) days from the date of the notice, such use shall be conclusive evidence that Network Operator has received, read and consented to the Agreement as amended or modified and further has agreed on a going-forward basis to comply with, and be bound by, all of the terms and conditions contained within the Agreement as amended or modified at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, below, which shall be governed by the Dispute Resolution provisions then in effect at the time of the subject dispute). The latest version of the Agreement will be posted on the Site, and you should review the Agreement prior to each use of the HasOffers™ Platform. Therefore, you should regularly check the HasOffers™ website for updates and/or changes.

2. Enrollment in the HasOffers™ Platform.

2.1 Application Submission Requirements. To begin the enrollment process, you must submit a complete and accurate Application via the Site. To join the HasOffers™ affiliate tracking platform (“HasOffers™ Platform”) as a Network Operator, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the HasOffers™ Platform. HasOffers™ will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supplied with your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform HasOffers™ of same to reflect such changes in your Network Operator profile.

2.2 Effective Date. You accept the terms and conditions contained in this Agreement by completing the Application and clicking “Create Account.” The Agreement is effective as of the date that Network Operator submits the Application (the “Effective Date”), provided that HasOffers does not reject the Application. HasOffers may reject your Application in its sole discretion.

2.3 HasOffers™ does not represent or warrant that the information posted in the HasOffers™ Platform is accurate, complete or appropriate. You understand and agree that HasOffers™ is not responsible or liable in any manner whatsoever for your inability to use the HasOffers™ Platform. You understand and agree that HasOffers™ shall not be liable to you or any third party for any claim in connection with your use of the HasOffers™ Platform.

2.4 You agree not to access (or attempt to access) the HasOffers™ Platform by any means other than through the interface that is provided by HasOffers™, unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and HasOffers™. You specifically agree not to access (or attempt to access) the HasOffers™ Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the HasOffers™ Platform.

2.5 You agree that you shall not engage in any activity that interferes with or disrupts the HasOffers™ Platform (or the servers and networks which are connected to the HasOffers™ Platform).

2.6 Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and HasOffers, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the HasOffers Platform or any element of the custom network interface website generated through use of the HasOffers Platform (“Custom Network”) for any purpose whatsoever. The rights and services which are the subject matter of these Sections 2.4-2.8 and 8, below, are of a special, unique, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and which would cause HasOffers great irreparable injury and damage. Accordingly, HasOffers shall be entitled to injunctive relief, specific performance and other equitable relief to preserve its rights and interest in and to such rights and services as set forth herein. This provision shall not, however, be construed as a waiver of any rights HasOffers may have for any and all damages as set forth under this Agreement as well as those provided for by all applicable federal and state law.

2.7 You agree that you are solely responsible for (and that HasOffers™ has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which HasOffers™ may suffer) of any such breach.

3. Privacy and Custom Network Security.

Your privacy is very important to us. HasOffers™ will at all times use commercially reasonable efforts to maintain the security, integrity and confidentiality of any and all confidential and/or proprietary information, whether in electronic form or otherwise, and to prevent the direct or indirect, loss, theft, unauthorized, unintended, or accidental access to and dissemination, duplication, distribution, or publication of such confidential and/or proprietary information. For more information please see our Privacy Policy at http://www.hasoffers.com/privacy-policy/.

To ensure the optimal level of protection for your confidential and/or proprietary information you agree to take proactive measures to restrict access to your computer, the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for maintaining the confidentiality of your account and password and for restricting access to your computer and the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for all activities that occur under your account or via use of your password. If you become aware of any unauthorized use of your password or of your account, you agree to notify HasOffers™ immediately.

4. Network Operator/Custom Network.

4.1 HasOffers™ grants to Network Operator a non-exclusive, non-transferable, revocable and limited license to use the HasOffers™ Platform for a fee, if applicable, as set forth herein below, in accordance with the terms of the Agreement. The HasOffers™ Platform enables interested affiliate network operators to: (a) attract and register third party publishers (“Publishers”) that may then access advertiser-provided advertisements (“Ads”) on the applicable Custom Network; (b) attract and register third-party advertising partners (“Advertisers”) that may then make their Ads available to Publishers on the applicable Custom Network; and (c) manage all aspects of the Custom Network including, without limitation, calculating commissions, tracking sales or other compensable actions, making payments and establishing rules for campaigns and (d) serve Ads and/or any media files including, but not limited to videos, images, flash banners, and html files on the HasOffers™ Platform.

4.2 Individuals/entities who purchase any product and/or service (collectively, “Custom Network Products”) made available through your Custom Network or who perform any other transaction through your Custom Network (“Custom Network Customers”) shall not be deemed to be the customers of HasOffers™. Publishers and Advertisers that enroll in Network Operator’s Custom Network shall not be deemed to be the customers, clients or business associates of HasOffers™. HasOffers™ has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Network Operator and its Custom Network Customers, Advertisers or Publishers. HasOffers™ shall have no obligation to resolve any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers. Network Operator expressly agrees to indemnify and hold HasOffers™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers.

4.3 HasOffers™ may use the personal information of a Network Operator in any manner consistent with the Privacy Policy. For additional information regarding HasOffers’™ collection and use of information, please refer to the Privacy Policy.

5. Ads.

5.1 Your Custom Network shall contain Ads made available by your registered Advertisers. As a Network Operator, you agree that you are solely responsible for the Ads that you and/or your Advertisers publish, transmit and/or post by and through the HasOffers™ Platform. You agree, and shall require that your Advertisers and Publishers agree in writing, to use the HasOffers™ Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Ads that you and/or your Advertisers post on the HasOffers™ Platform, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Ads are endorsed by HasOffers™, without our specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express advance consent and in conformance with all applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Ads that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Ads that do not fully comply with all applicable local, state and federal laws, rules and regulations. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate Termination of this Agreement and your Custom Network without notice, in the sole discretion of HasOffers™. HasOffers™ reserves the right to pursue any and all legal remedies against Network Operators that engage in the aforementioned prohibited conduct. If we receive reports from our upstream service provider that you, your Publishers, or Advertisers are transmitting chain letters, spam or junk-email, or conducting any other form of abuse, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence and HasOffers™ reserves the right to automatically disable the tracking link for the affiliate and Ad.

5.2 Without limiting the foregoing, HasOffers™ may Terminate and/or suspend any Ads at any time and for any reason, in HasOffers’™ sole discretion. Network Operator must immediately remove such Ads after any such suspension or Termination, as applicable.

5.3 Notwithstanding the foregoing, HasOffers™ undertakes no responsibility to monitor or otherwise police: (a) the Ads posted by you and/or your Advertisers on the HasOffers™ Platform; (b) the website (“Advertiser Website”) linked to from the Ad; (c) the websites of your Publishers (“Publisher Websites”); and/or (d) any of the products and/or services offered on such Advertiser Websites and/or Publisher Websites including, without limitation, the applicable Custom Network Products. You agree that HasOffers™ shall have no obligations and incur no liabilities to you in connection with any such Ads, Advertiser Websites or Publisher Websites.

6. Custom Network Products.

HasOffers™ reserves the right to prohibit the marketing of any Custom Network Products at any time and for any reason, in HasOffers’™ sole discretion. Network Operator must immediately cease marketing such Custom Network Products after receipt of notice of any such prohibition.

7. Non-Endorsement.

HasOffers™ operates the HasOffers™ Platform as a neutral host, and HasOffers™ does not regularly monitor, regulate or police the use of the HasOffers™ Platform by any of its participants. The participation in the HasOffers™ Platform by a Network Operator, Publisher, Advertiser, Custom Network Customer or otherwise does not constitute an endorsement by HasOffers™ of that Network Operator, Publisher, Advertiser, Custom Network Customer or other third party. HasOffers™ is not responsible or liable for the acts, omissions, agreements, promises, Ads, Custom Network Products, Publisher Websites, Advertiser Websites, other products, services, comments, opinions, advice, statements, offers and other information of any Network Operator, Publisher, Advertiser, Custom Network Customer or other third party using the HasOffers™ Platform.

8. Proprietary Rights.

8.1 Network Operator grants to HasOffers™ a royalty free, worldwide license (“Network Operator License”) to: (a) display on, and distribute through, the HasOffers™ Platform, Site and in related marketing material produced and distributed by HasOffers™, the Ads and any other information posted in the HasOffers™ Platform or otherwise made available by Network Operator, its Advertisers and/or Publishers by and through Network Operator’s Custom Network. The Network Operator License shall last for the duration of the Agreement.

8.2 HasOffers™ grants to Network Operator a limited, revocable, non-transferable license to use the HasOffers™ Platform solely and exclusively as contemplated by the Agreement (“HasOffers™ License”).

8.3 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, and other matters related to the HasOffers™ Platform, (and any products or services that HasOffers™ does now or at any time in the future may make available to you), is protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Network Operator of any part of the HasOffers™ Platform, other than as contemplated hereunder, is strictly prohibited.

8.4 Network Operator agrees that its use of the HasOffers™ Platform, any HasOffers™ logos, trademarks, Transaction Tracking Codes (as defined below) and other material made available by and through the HasOffers™ Platform is subject to the HasOffers™ License granted hereunder.

8.5 Network Operator does not acquire any ownership rights to the HasOffers™ Platform or any material made available by and through the HasOffers™ Platform. The availability of the HasOffers™ Platform, and the associated material, does not constitute a waiver of any rights related thereto.

9. Term and Termination.

9.1 The services under this agreement are provided by HasOffers™ to Network Operator on a month-to month basis, and as such each of the Parties, may, in its sole discretion, terminate the Agreement (and thereby the services) at any time, with or without cause, upon thirty (30) days prior written notice to the other party (“Terminat(ion)”). HasOffers may suspend (“Suspend(tion”) Network Operator’s services at any time, without advance notice, for any reason that it finds valid in its sole discretion until cured, including but not limited to where HasOffers believes that: (a) you are in any way in breach of the Agreement; (b) any Ads or Custom Network Products are unsuitable for the HasOffers Platform for any reason including, without limitation, that the Ads contain, or link to, or that the Custom Network Products consist of, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (c) you or your Advertisers, at any time, are conducting commercial activities that do not fully comply with all applicable local, state, federal and foreign laws, rules and regulations; and (d) you fail to pay any of the fees herein within seven (7) days of receipt of invoice.

9.2 Network Operator may Suspend or remove any Ads, Publishers and/or Advertisers at any time with or without notice.

9.3 If Network Operator’s participation in the HasOffers™ Platform Terminates or HasOffers™ Suspends such participation for any reason, HasOffers™ may, with or without notice remove all Ads and cancel any Custom Network activity immediately or, in HasOffers discretion, at any time thereafter.

9.4 Upon any Termination or Suspension of the Agreement and/or Network Operator’s participation in the HasOffers™ Platform: (a) the HasOffers™ License and any and all other licenses and rights granted to Network Operator in connection with the Agreement shall immediately expire; and (b) any and all confidential or proprietary information of HasOffers™ that is in Network Operator’s possession or control must be immediately returned or destroyed. If requested, Network Operator will certify in a writing signed by Network Operator or an authorized officer of Network Operator that all such confidential and/or proprietary information has been returned or destroyed.

9.5 If HasOffers™ Terminates Network Operator’s services for breach of the Agreement, including for non-payment: (i) Network Operator shall not be eligible to enter into a new Network Operator Agreement with HasOffers™, or any other agreement for other HasOffers™ products and/or services, and any attempt to do so shall be null and void; and (ii) Except where such action would violate any applicable law, HasOffers™ reserve the right to sell Network Operator’s personally identifiable information, but specifically excluding sensitive information, to Network Operator’s Advertisers and Affiliates or to any debt collection company in an effort to recoup any outstanding balances. HasOffers may use Network Operators data in the process to sell the data. Any profit gained in such a transaction will be realized by HasOffers only.

9.7 Obligations that, by their nature, would survive any Termination of the Agreement including, without limitation, Sections 10, 15, 16, 17, 18, 19, 20, and 21 shall survive any Termination of the Agreement.

10. HasOffers™ Platform Fees.

10.1 In consideration for Network Operator’s use of the HasOffers™ Platform, Network Operator agrees to pay the fees described in this Section 10. The monthly billing cycle begins on the Effective Date and all monthly fees reoccur on the same calendar date each month (“Monthly Billing Cycle”).

10.2 One (1) Month Trial of Pro or Enterprise Edition. HasOffers™ may, when available, offer Professional Edition, or Enterprise Edition Services for a period of One (1) Month from the Effective Date (the “Trial Month Period”), during which time the Professional Edition Monthly Fee, or the Enterprise Edition Monthly Fee (as both terms are defined below) shall not be charged. All other applicable Fees will be charged, including Impression Request Usage Fees, Conversion Request Usage Fees, Click Request Usage Fees, and CDN Media Usage Fees as set forth below, and you will be required to pay all such applicable fees that accrue during the Trial Month Period. Upon registering for the Trial Month Period of the HasOffers™ Professional Edition, the credit or debit card that you provided during registration (“Active Credit Card”) will be authorized for two hundred and seventy-nine dollars ($279.00) for a duration of three days. Upon registering for the Trial Month Period of HasOffers™ Enterprise Edition, the Active Credit Card will be authorized for seven hundred and ninety-nine dollars ($799.00) for a duration of three days. Network Operator agrees that its use of the HasOffers™ Platform during the Trial Month Period is provided for the purpose of sampling the HasOffers™ Services. Before expiration of the Trial Month Period, you must submit to HasOffers™, in writing, notice to Terminate the Agreement, thereby Terminating your Custom Network. If no such request is received by HasOffers™ by the expiration of the Trial Month Period, on a going-forward basis either: (a) the Active Credit Card will be charged the Professional Edition Monthly Fee or the Enterprise Edition Monthly fee, respectively, for each Custom Network that you operate through the HasOffers™ Platform; or (b) you will receive an invoice for the Professional Edition Monthly Fee or the Enterprise Edition Monthly Fee, respectively, for each Custom Network that you operate through the HasOffers™ Platform. For so long as your HasOffers™ account is active, upon each Billing Cycle (as defined below) you will be required to pay either the Professional Edition Monthly Fee or the Enterprise Edition Monthly Fee, respectively, and any and all applicable usage fees for that month’s access to the HasOffers™ Platform.

10.3 Basic Edition Fees. As of February 5, 2012 the Basic Edition is no longer being offered for ongoing registration. For customers who registered for the Basic Edition before February 5, 2012: the Active credit card will be charged the monthly fee of Ninety-Nine Dollars ($99.00) per Custom Network that you registered for the Basic Edition through the HasOffers™ Platform (“Basic Edition Monthly Fee”).

a. Basic Edition Impression Request Usage Fee. Your Basic Edition Monthly Fee includes, at no extra charge, five hundred thousand (500,000) impression requests on the Ads used in connection with the applicable Custom Network in any given Monthly Billing Cycle (“Five Hundred Thousand Impression Request Threshold”). An additional fee will be assessed, on top of the Basic Edition Monthly Fee, of One Half Cent ($.005) per thousand impression requests recorded over the Five Hundred Thousand Request Threshold in any given Monthly Billing Cycle (“Basic Edition Impression Request Usage Fee”).

b. Basic Edition Conversion Request Usage Fee. Your Basic Edition Monthly Fee includes, at no extra charge, fifty thousand (50,000) conversion requests on the Ads used in connection with the applicable Custom Network (“Fifty Thousand Conversion Request Threshold”) in any given Monthly Billing Cycle. An additional fee will be assessed, on top of the Basic Edition Monthly Fee, of Two Twenty-Fifth Cents ($.0008) for every conversion request recorded over the Fifty Thousand Conversion Request Threshold (“Basic Edition Conversion Request Usage Fee”).

c. Fifty Thousand Click Request Threshold. Your Basic Edition Monthly Fee includes, at no extra charge, fifty thousand (50,000) Gross Click Requests on the Ads used in connection with the applicable Custom Network (“Fifty Thousand Click Request Threshold”) in any given Monthly Billing Cycle. “Gross Click Requests” shall be defined as the accumulation of every click request received by HasOffers via Customer’s Custom Network in a given Monthly Billing Cycle, regardless of origin. Unique click requests comprise only a subset of Gross Click Requests that are originated by a unique identifier as opposed to a repeated click request by a particular identifier. Network Operator may view the performance of its offers in the Platform by ‘unique’ clicks and/or by ‘gross’ clicks; nonetheless, every Gross Click Request that HasOffers records will be subject to the Fifty Thousand Click Request Threshold and all other click request thresholds set forth herein. An additional fee will be assessed, on top of the Basic Edition Monthly Fee, of One Fifth Cent ($.002) for every Gross Click Request recorded over the Fifty Thousand Click Request Threshold (“Basic Edition Click Request Usage Fee”).

d. Basic Edition Impression Request Usage Fees, Basic Edition Conversion Request Usage Fees and Basic Edition Click Request Usage Fees (collectively, “Basic Edition Usage Fees”) will be calculated and billed based on the amount of respective impression requests, conversion requests and Gross Click Requests recorded for each Monthly Billing Cycle, and either: (a) the Active Credit Card will be charged the total amount due for the Basic Edition Usage Fees; or (b) you will receive an invoice for the total amount due for the Basic Edition Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion. There shall be no proration or refund of the Basic Edition Monthly Fee, or either of the Basic Edition Usage Fees in connection with any Termination.

e. HasOffers™ provides Basic Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the click requests associated with the Fifty Thousand Click Request Threshold, the impressions associated with the Five Hundred Thousand Impression Request Threshold, and the conversion requests associated with the Fifty Thousand Conversion Request Threshold. All determinations with respect to the Fifty Thousand Click Request Threshold, the Five Hundred Thousand Impression Request Threshold, and the Fifty Thousand Conversion Request Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. For so long as your Basic Edition account is activated, the Basic Edition Monthly Fee will be due and payable upon the same day of each new month, and you will be required to pay all applicable Basic Edition Fees for that month’s access to the HasOffers™ Platform.

f. Network Operator may upgrade its account to the Professional Edition or Enterprise Edition at any time by contacting the account representative assigned to its account. Upon registering for an upgrade to the Professional Edition, Network Operator shall be charged and/or invoiced according to the terms of this Agreement an amount equal to One Hundred Eighty Dollars ($180); and at such point Network Operator shall immediately receive access to the thresholds that correspond with the Professional Edition and shall be charged on a going forward basis pursuant to Section 10.4 below. Upon registering for an upgrade to the Enterprise Edition, Network Operator shall be charged and/or invoiced according to the terms of this Agreement an amount equal to Seven Hundred Dollars ($700); and at such point Network Operator shall immediately receive access to the thresholds corresponding with the Enterprise Edition and shall be charged on a going forward basis pursuant to Section 10.5 below. The fees that Network Operator shall be charged to upgrade to either the Professional Edition or the Enterprise Edition are fixed, according to this subsection 10.3.f, and shall not be prorated based on any remainder of the then current Monthly Billing Cycle.

10.4 Professional Edition Fees. Upon registering for a Professional Edition account, either: (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the monthly fee of Two Hundred Seventy-Nine Dollars ($279.00) for each Custom Network that you operate on the Professional Edition through the HasOffers™ Platform (“Professional Edition Monthly Fee”); or (b) you will receive an invoice for the Professional Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion.

a. Three Million Impression Request Threshold. Your Professional Edition Monthly Fee includes, at no extra charge, three million (3,000,000) impression requests on the Ads used in connection with the applicable Custom Network Cycle (“Three Million Impression Request Threshold”) in any given Monthly Billing Cycle. An additional fee will be assessed, on top of the Professional Edition Monthly Fee, of One Half Cents ($0.005) Per Thousand Impression requests that HasOffers™ records over the Three Million Impression Request Threshold (“Professional Edition Impression Request Usage Fee”).

b. One Hundred Twenty-Five Thousand Conversion Request Threshold. Your Professional Edition Monthly Fee includes, at no extra charge, one hundred twenty-five thousand (125,000) conversion requests on the Ads used in connection with the applicable Custom Network in any given Monthly Billing Cycle (“One Hundred Twenty-five Thousand Conversion Request Threshold”). An additional fee will be assessed, on top of the Professional Edition Monthly Fee, of Two Twenty-Fifth Cents ($0.0008) for every subsequent conversion request recorded over the One Hundred Twenty-five Thousand Conversion Request Threshold in any given Monthly Billing Cycle (“Professional Edition Conversion Request Usage Fee”).

c. Three Hundred Thousand Click Request Threshold. Your Professional Edition Monthly Fee includes, at no extra charge, three hundred thousand (300,000) Gross Click Requests on the Ads used in connection with the applicable Custom Network (“Three Hundred Thousand Click Request Threshold”). An additional fee will be assessed, on top of the Professional Edition Monthly Fee, of One Fifth Cent ($0.002) for every subsequent Gross Click Request recorded over the Three Hundred Thousand Click Request Threshold in any given Monthly Billing Cycle (“Professional Edition Click Request Usage Fee”).

d. Professional Edition Impression Request Usage Fees, Professional Edition Conversion Request Usage Fees and Professional Edition Click Request Usage Fees (collectively, the “Professional Edition Usage Fees”) will be calculated and billed based on the respective amount of impression requests, conversion requests and Gross Click Requests recorded for each Monthly Billing Cycle, and either: (a) the Active Credit Card will be charged the Professional Edition Usage Fees; or (b) you will receive an invoice for the Professional Edition Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion.

e. Once you have registered for the Professional Edition, you shall remain at such level and you shall continue to be charged the Professional Edition Monthly Fee unless and until you choose to upgrade your account to the Enterprise edition, as more fully set forth in Section 10.5 below, or you provide HasOffers™ with written notice of your desire to Terminate your account, pursuant to Section 9.1, above. There shall be no proration or refund of the Professional Edition Monthly Fee, the Professional Edition Impression Request Usage Fee, the Professional Edition Conversion Request Usage Fee or the Professional Edition Click Request Usage Fee in connection with any Termination. For so long as your Professional Edition account is activated, the Professional Edition Monthly Fee will be due and payable upon registering for a Professional Edition account and will recur on the same day of each new month, and you will be required to pay all applicable Professional Edition Fees for that month’s access to the HasOffers™ Platform.

f. HasOffers™ provides Professional Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the click requests associated with the Three Hundred Thousand Click Request Threshold, the impression requests associated with the Three Million Impression Request Threshold, the conversion requests associated with the One Hundred Twenty-five Thousand Conversion Request Threshold and the Gross Click Requests associated with the Three Hundred Thousand Click Request Threshold. All determinations with respect to the Three Hundred Thousand Click Request Threshold, the Three Million Impression Request Threshold, and the One Hundred Twenty-five Thousand Conversion Request Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator.

g. Network Operator may upgrade its account to the Enterprise Edition at any time by contacting the account representative assigned to its account. Upon registering for an upgrade to the Enterprise Edition, Network Operator shall be charged and/or invoiced according to the terms of this Agreement an amount equal to Five Hundred Twenty Dollars ($520) and at such point Network Operator shall immediately receive access to the thresholds corresponding with the Enterprise Edition; and shall be charged on a going forward basis pursuant to Section 10.5 below. The fee that Network Operator shall be charged to upgrade to the Enterprise Edition is fixed, according to this subsection 10.4.g, and shall not be prorated based on any remainder of the then current Monthly Billing Cycle. For purposes of clarification, Network Operator shall not have the right to downgrade from the Professional Edition to the Basic Edition.

10.5 Enterprise Edition Fees. Upon registering for an Enterprise Edition account, either: (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the monthly fee of Seven Hundred and Ninety-Nine Dollars ($799.00) for each Custom Network that you operate on the Enterprise Edition through the HasOffers™ Platform (“Enterprise Edition Monthly Fee”); or (b) you will receive an invoice for the Enterprise Edition Monthly Fee which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion.

a. One Million Click Request Threshold. The Enterprise Edition Monthly Fee includes, at no extra charge, one million (1,000,000) Gross Click Requests on the Ads used in connection with the applicable Custom Network in any given Monthly Billing Cycle (“One Million Click Request Threshold”). An additional fee will be assessed, on top of the Enterprise Edition Monthly Fee, of Two Twenty-Fifth Cents ($0.0008) for every subsequent Click Request recorded over the One Million Click Request Threshold in any given Monthly Billing Cycle (“Enterprise Edition Click Request Usage Fees”).

b. Ten Million Impression Request Threshold. The Enterprise Edition Monthly Fee includes, at no extra charge, ten million (10,000,000) impression requests on the Ads used in connection with the applicable Custom Network in any given Monthly Billing Cycle (“Ten Million Impression Request Threshold”). An additional fee will be assessed, on top of the Enterprise Edition Monthly Fee, of One Half Cents ($0.005) per every subsequent One Thousand (1,000) impression requests recorded over the Ten Million Impression Request Threshold in any given Monthly Billing Cycle (“Enterprise Edition Impression Request Usage Fee”).

c. Five Hundred Thousand Conversion Request Threshold. The Enterprise Edition Monthly Fee includes, at no extra charge, Five hundred thousand (500,000) conversion requests on the Ads used in connection with the applicable Custom Network in any given Monthly Billing Cycle (“Five Hundred Thousand Conversion Request Threshold”). An additional fee will be assessed, on top of the Enterprise Edition Monthly Fee, of Two Twenty-Fifth Cents ($0.0008) for every subsequent conversion request recorded over the Five Hundred Thousand Conversion Request Threshold in any given Monthly Billing Cycle (“Enterprise Edition Conversion Request Usage Fee”).

d. Enterprise Edition Click Request Usage Fees, Enterprise Edition Impression Request Usage Fees and Enterprise Edition Conversion Request Usage Fees, (collectively, “Enterprise Edition Usage Fees”) will be calculated and billed based on the amount of click requests, impression requests and conversion requests recorded for each Monthly Billing Cycle, and either: (a) the Active Credit Card will be charged the Enterprise Edition Usage Fees; or (b) you will receive an invoice for the Enterprise Edition Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion. Should you upgrade your account to the Enterprise Edition, it shall remain at such level and you shall continue to be charged the Enterprise Edition Monthly Fee and where applicable, the Enterprise Edition Usage Fees unless and until you provide HasOffers™ with written notice of your desire to downgrade to the Professional Edition (an Enterprise Edition Custom Network shall not be eligible to downgrade to the Basic Edition). After receipt of such notice, such downgrade shall be effective beginning with the first day of the next Monthly Billing Cycle after such downgrade notice is delivered to HasOffers™. There shall be no proration or refund of the Enterprise Edition Monthly Fee or the Enterprise Edition Usage Fees in connection with any downgrade or Termination. You shall be permitted to downgrade one time only. Any subsequent upgrade shall result in a permanent return to the Enterprise Edition, and you shall remain an Enterprise Edition subscriber unless and until you Terminate this Agreement thereby cancelling your Custom Network.

e. HasOffers™ provides Enterprise Edition users with live reporting tools and it is the Network Operator’s responsibility to monitor the Custom Network regarding the click requests associated with the One Million Click Request Threshold, the impression requests associated with the Ten Million Impression Request Threshold and the conversion requests associated with the Five Hundred Thousand Conversion Request Threshold. All determinations with respect to the One Million Click Request Threshold, the Ten Million Impression Request Threshold and the Five Hundred Thousand Conversion Request Threshold shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. For so long as your Enterprise Edition account is activated, the Enterprise Edition Monthly Fee will be due and payable upon registering for an Enterprise Edition account or reaching the Three Hundred Thousand Click Request Threshold and will recur on the same day of each new month, and you will be required to pay all applicable Enterprise Edition Fees for that month’s access to the HasOffers™ Platform.

10.6 Media Usage Fees. Upon registering for any HasOffers™ edition, all media files used as, or in conjunction with any Ads served on the HasOffers™ Platform shall be subject to a fee. Custom networks that utilize the CDN Media Usage will be charged a fee of Two Dollars ($2.00) per Gigabyte (1,000,000,000 bytes) transferred (“CDN Media Usage Fees”). Media files include, but are not limited to videos, images, flash banners, and html files. The total amount of all Gigabytes transferred in your Custom Network will be subject to CDN Media Usage Fees. The amount of Gigabyte transfers for which you will be charged includes all media files served by both you AND your affiliates using your Custom Network. Network Operator shall be responsible for paying any and all applicable CDN Media Usage Fees. CDN Media Usage Fees will be calculated and billed based on the amount of Gigabytes recorded for each Monthly Billing Cycle at which time either (a) the credit or debit card that you provided during registration (“Active Credit Card”) will be charged the CDN Media Usage Fees; or (b) you will receive an invoice for the CDN Media Usage Fees which must be paid, in full, upon receipt, with the payment method to be determined by HasOffers™ in its sole discretion. All determinations with respect to the amount of Gigabytes transferred shall be made by HasOffers™, in its sole discretion, and any such determinations shall be final and binding on Network Operator. You shall continue to be charged CDN Media Usage Fees for each Gigabyte transfer recorded unless and until you Terminate this Agreement thereby cancelling your Custom Network. You will be responsible for all unpaid CDN Media Usage Fees accrued prior to account Termination and those fees will become due immediately upon account Termination.

10.7 You authorize HasOffers™, by agreeing to the terms of this Agreement and submitting your Application, to provide and bill for your use of the HasOffers™ Platform. All fees are payable in United States currency, and such fees will appear on your Active Credit Card bill as “HasOffers, Inc.” You acknowledge and agree that HasOffers™ will not be required obtain additional authorization from you for each monthly billing.

10.8 Network Operator shall be solely responsible for paying any and all applicable sales, use, and/or withholding tax (if any) due to all applicable taxing authorities arising from, or in connection with, Network Operator’s participation in the HasOffers Platform including, without limitation, taxes and related fees, costs and penalties incurred by Network Operator, its Advertisers and/or Publishers pursuant to those tax laws of any applicable state in which, pursuant to the terms of this Agreement, HasOffers shall be considered a vendor for tax. purposes.

10.9 Failure to use the HasOffers™ Platform does not constitute a basis for refusing to pay any of the associated fees indicated herein. The following conditions apply to any Termination: (a) you shall not receive any pro-rata refund of your fees charged pursuant to this Agreement, for partial months; and (b) you shall not receive any refund for amounts previously paid up to the date of Termination and you remain liable for any and all unpaid charges billed by HasOffers™.

10.10 You agree to be bound by Billing Practices of HasOffers™ in effect at any given time. Upon prior written notice to you (with e-mail sufficing), HasOffers™ reserves the right to change its Billing Practices whenever necessary, in its sole discretion. HasOffers™ may change any HasOffers™ Platform fees upon thirty (30) days prior written notice sent to the email address supplied by Network Operator with your original Application, unless a formal change of e-mail address has been submitted to us in writing. Continued membership in the HasOffers™ Platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification. If you do not agree with these changes, you may cancel your Network Operator account at any time by Termination of this Agreement, but you will remain responsible for timely payment of any and all fees charged pursuant to this Agreement that you have already incurred (including any applicable late fees).

10.11 Where Network Operator fails to make any scheduled payment for accrued fees billed pursuant to this Agreement, such overdue amounts will be subject to interest charges in the amount of one and one half percent (1.5%) per month, compounded monthly. Network Operator’s account may be deactivated, and access to the HasOffers™ Platform and/or Site denied, for non-payment.

10.12 Click requests, impression requests, and conversion requests include the total of all requests regardless if they result in any action. An Impression Request is any request that the ad servers receive to track an impression, usually from an impression pixel and includes all requests that were not tracked. A Click Request is any request that the ad servers receive to track a click and redirect the user and includes all clicks that were not tracked or the user wasn’t redirected. A Conversion Request is any request that the ad servers receive from a conversion pixel or postback URL including all requests that do not result in conversions.

11. HasOffers™ Platform Service.

The Network Operator of any of the Basic Edition, Professional Edition and Enterprise services will be provided with the HasOffers™ tracking of Ad impression requests and/or click requests and transactions made in connection with the Ads and commissions derived therefrom (“Transaction Data”) using HasOffers™ proprietary transaction tracking codes (“Transaction Tracking Codes”). However, there are specific differences to the services for each edition, as laid out below:

11.1 Basic Edition Services. In connection with the services made available by HasOffers™ to its Basic Edition Network Operators, HasOffers™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) access to email support services during regular business hours, excluding weekends and national and HasOffers™ recognized holidays, for which the first one (1) hour of support services utilized in any Monthly Billing Cycle shall be without charge, and thereafter shall be billed at a rate of up to Fifty Dollars ($50) per hour or fraction thereof, at HasOffers’ sole discretion; (d) tracking of Transaction Data using Tracking Codes; (e) reporting tools to be used in connection with monitoring Custom Network activities; (f) up to fifty thousand (50,000) click requests on the Ads during each Monthly Billing Cycle; (g) up to five hundred thousand (500,000) impression requests on the Ads during each Monthly Billing Cycle (with additional impression requests billed pursuant to the Basic Edition Impression Request Usage Fee terms set forth in Section 10.3 above); and (h) up to fifty thousand (50,000) conversion requests on the Ads during each Monthly Billing Cycle (with additional conversion requests billed pursuant to the Basic Edition Conversion Request Usage Fee terms set forth in Section 10.3 above) (collectively, “Basic Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, HasOffers™ guarantees 99.5% Custom Network availability to its Basic Edition customers and such availability shall include the functioning of all Basic Edition Service infrastructure.

11.2 Professional Edition Services. In connection with the services made available by HasOffers™ to its Professional Edition Network Operators, HasOffers™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) a Custom Network domain (optional); (d) a Custom Tracking URL (optional); (e) access to chat support services during regular business hours (excluding weekends and HasOffers recognized Holidays) and 24/7 access to email support services, for which the first two (2) hours of cumulative chat and/or email support services utilized in any Monthly Billing Cycle shall be without charge, and thereafter shall be billed at a rate of Fifty Dollars ($50) per hour or fraction thereof; (f) tracking of Transaction Data using Transaction Tracking Codes; (g) a Custom Tracking URL (optional); (h) Fraud Score™, a fraud detection and prevention technology designed to assist Network Operators with their Custom Networks; (i) Advertiser Management, a feature that allows you to add and manage advertiser accounts; (j) reporting tools to be used in connection with monitoring Custom Network activities; (k) up to three hundred thousand (300,000) click requests on the Ads during each Monthly Billing Cycle; (l) up to three million (3,000,000) impression requests on the Ads during each Monthly Billing Cycle (with additional impression requests billed pursuant to the Professional Edition Impression Request Usage Fee terms set forth in Section 10.4 above); and (m) up to one hundred, twenty-five thousand (125,000) conversion requests on the Ads during each Monthly Billing Cycle (with additional conversion requests billed pursuant to the Professional Edition Conversion Request Usage Fee terms set forth in Section 10.4 above) (collectively, “Professional Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, HasOffers™ guarantees 99.8% Custom Network availability to its Professional Edition customers and such availability shall include the functioning of all Professional Edition Service infrastructure.

11.3 Enterprise Edition Services. In connection with the services made available by HasOffers™ to its Enterprise Edition Network Operators, HasOffers™ shall provide such Network Operators with: (a) Custom Network hosting; (b) a Custom Network sub-domain; (c) a Custom Network domain (optional); (d) a Custom Tracking URL (optional); (e) unlimited access to all features within the HasOffers™ Platform, including the HasOffers™ Network API, only available to Enterprise users; (f) access to chat and telephone support services during regular business hours (excluding weekends and national and HasOffers recognized holidays) and 24/7 access to email support services, for which the first five (5) hours of cumulative email, chat and/or telephone support services utilized in any Monthly Billing Cycle shall be without charge and thereafter shall be billed at a rate of Fifty Dollars ($50) per hour or fraction thereof; (g) customized branded layout of the Custom Network by HasOffers’™ graphics team; (h) tracking of Transaction Data using Transaction Tracking Codes; (i) Fraud Score Plus™, a fraud detection and prevention technology designed to assist Network Operators with their Custom Networks; (j) Advertiser Management, a feature that allows you to add and manage advertiser accounts; (k) live reporting tools to be used in connection with monitoring Custom Network activities; (l) increased storage limits; (m) advanced data migration of offers, Advertisers and Publishers from an existing database which is owned by Network Operator (n) up to one million (1,000,000) click requests on the Ads during each Monthly Billing Cycle (with additional click requests billed pursuant to the Enterprise Edition Click Request Usage Fee terms set forth in Section 10.5 above); (o) up to ten million (10,000,000) impression requests on the Ads during each Monthly Billing Cycle (with additional impression requests billed pursuant to the Enterprise Edition Impression Request Usage Fee terms set forth in Section 10.5 above); and (p) up to five hundred thousand (500,000) conversion requests on the Ads during each Monthly Billing Cycle (with additional conversion requests billed pursuant to the Enterprise Edition Conversion Request Usage Fee terms set forth in Section 10.5 above) (collectively, “Enterprise Edition Services”). Such tracking and reporting tools shall include, but not be limited to, the tracking of Transaction Data. In addition, HasOffers™ guarantees 99.8% Custom Network availability to its Enterprise Edition customers and such availability shall include the functioning of all Enterprise Edition Service infrastructure.

11.4 HasOffers™ Support. All HasOffers™ support, including, but not limited to email, chat, and phone support will be provided in the English Language only. Although HasOffers™ may make the HasOffers™ Platform available in different languages, all customer support will be provided in English only.

11.5 HasOffers™ may make available, for additional fees that HasOffers™ shall publish from time-to-time, enhanced reporting capabilities and/or other services that are not included in the standard HasOffers™ services packages.

11.6 HasOffers™ has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). Sometimes, these companies will be providing services to you on behalf of HasOffers™ itself. You acknowledge and agree that the Subsidiaries and Affiliates will be entitled to provide the Services to you.

11.7 HasOffers™ is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the HasOffers™ Platform which HasOffers™ provides may change from time to time without prior notice to you.

11.8 The HasOffers™ Platform which you use may be updated from time to time by HasOffers™. These updates are designed to improve, enhance and further develop the HasOffers™ Platform and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit HasOffers™ to deliver these to you) as part of your use of the HasOffers™ Platform.

11.9 You acknowledge and agree that while HasOffers™ may not currently have set a fixed upper limit on the number of transmissions you may send or receive through your Custom Network or on the amount of storage space used for the provision of your Custom Network, such fixed upper limits may be set by HasOffers™ at any time, at HasOffers’™ discretion.

12. API Rate Limiting.

12.1 The HasOffers™ Platform API only allows you to make a limited number of calls in a given hour. The default rate limit for calls to the REST API is sixty (60) requests per hour. The REST API does both account and IP-based rate limiting. Authenticated API calls are charged to the authenticating user’s limit while unauthenticated API calls are deducted from the calling IP address’ allotment. Rate limiting only applies to methods that request information with the HTTP GET command. API methods that use HTTP POST to submit data to HasOffers™, such as user information do not affect rate limits. Additionally, requests to account/rate_limit_status are not charged to a limit. Your Custom Network should recognize it is being rate-limited by the REST API if it begins to receive HTTP 400 response codes. It is best practice for Custom Networks to monitor their current rate limit status and dynamically throttle requests if necessary. The REST API offers two ways to observe this status: (a) the account/rate_limit_status method. Calling this method does not count against the requestor’s API limit and (b) HTTP response headers included in all REST API responses which count against the rate limit: (1) X-RateLimit-Limit the current limit in effect; (2) X-RateLimit-Remaining the number of hits remaining before you are rate limited and (3) X-RateLimit-Reset the time the current rate limiting period ends in epoch time.

12.2 Whitelisting. Some Custom Networks find that the default limit proves insufficient. Under such circumstances, we offer whitelisting. It is possible to whitelist both accounts and IP addresses. Each whitelisted entity, whether an account or IP address, is allowed 3600 requests per hour. If you have a Custom Network that should be considered for whitelisting, please fill out the whitelisting request form. Our manual review process can take up to a week. In some cases, additional fees will apply for additional API requests. Upgrading to a Dedicated Solution edition may be required to accommodate Custom Networks with high volume API requests. If you have a whitelisting that needs to be updated through the addition or removal of IP addresses, reapply with an explanation of the change. Approval or rejection for whitelisting requests is emailed to the email address associated with the account that filed the application.

12.3 Avoiding the Rate Limiter. The same general techniques and design decisions can be used to avoid the crunch of the rate limiter: (a) Caching: Store API responses in your application or on your site if you expect high-volume usage. For example, don’t try to call the HasOffers™ API on every page load of your hugely popular website. Instead, call our API infrequently, cache the response on your end, and display the local version on page loads. (b) Prioritize active users: If your site keeps track of many Custom Network users (for example, fetching their statistics), consider only requesting data for users who have recently signed into your site. (c) Search back-offs: If your application monitors a high volume of search terms, query less often for searches that have no results than for those that do. By using a back-off you can keep up to date on queries that are hot but not waste cycles requesting queries that very rarely change.

12.4 Blacklisting. We ask that you honor the rate limit. Consistent failure to avoid the rate-limiter will signal HasOffers™ to automatically blacklist your Custom Network. You know that you are blacklisted if your user is unable to get a response for a request sent to the API. It appears as if API calls are sent down a blackhole. If your Custom Network has been blacklisted and you would like service reinstated please do the following: (a) if you are using the REST API, make a call to the account/rate_limit_status from the account or computer in question; (b) explain why you think your Custom Network was blacklisted and (c) describe how you have fixed the problem that resulted in blacklisting. Send that information in an email to our support email so we can get you back online.

13. Other Content.

13.1 The HasOffers™ Platform and this website may contain links to third party sites. These websites are not under the control of HasOffers™ and HasOffers™ is not responsible for the content or availability of any linked website. HasOffers™ provides these links as a convenience to its customers, and the inclusion of any link does not imply endorsement of the linked website by HasOffers™. You acknowledge and agree that HasOffers™ is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

13.2 Sometimes when you use the HasOffers™ Platform, you may (as a result of, or through your use of, the services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software, or goods may be subject to separate terms between you and the company or person concerned. If so, the Agreement does not affect your legal relationship with these other companies or individuals.

14. Network Operator Representations and Warranties.

Network Operator hereby represents and warrants to HasOffers™ as follows:

14.1 Network Operator has the full legal right, power and authority to enter into and perform this Agreement;

14.2 Submission of the Application represents valid execution and delivery by Network Operator of this Agreement and constitutes Network Operator’s legal, valid and binding obligation which is fully enforceable against Network Operator in accordance with its terms;

14.3 Network Operator understands and agrees that HasOffers™ will enter into similar agreements with other HasOffers™ Network Operators in direct competition with Network Operator;

14.4 Network Operator understands and agrees that Network Operator has independently evaluated the desirability of participating in the HasOffers™ Platform and that Network Operator has not relied on any representation and/or warranty other than those set forth in the Agreement;

14.5 The execution, delivery and performance by Network Operator of the Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Network Operator is subject; (b) any order, judgment or decree applicable to Network Operator; (c) any provision of Network Operator’s corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Network Operator;

14.6 Network Operator’s performance under the Agreement, the Ads, Custom Network, Custom Network Products, Advertiser Websites and Publisher Websites, and any and all material featured and/or linked to therein, will not: (a) invade the right of privacy or publicity of any third person; (b) involve any libelous, obscene, indecent or otherwise unlawful material; (c) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (d) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.

14.7 The Ads and any and all other information posted by Network Operator to the HasOffers™ Platform will comply with the provisions of Section 5.1, and Network Operator will be solely responsible for the material and Ads that appear in the Custom Network.

14.8 There is no pending or, to the best of Network Operator’s knowledge, threatened claim, action or proceeding against Network Operator regarding breach of any Agreement with material terms similar to those of this Agreement.

14.9 With respect to the Fraud Score™ and Fraud Score Plus™ tools, HasOffers™ makes no warranties or representations as to the accuracy of the results, and encourages all Network Operators to conduct full due diligence on potential affiliates and to actively manage their networks to most effectively prevent, detect and eliminate fraudulent activity.

15. HasOffers™ Warranties and Disclaimers.

15.1 HasOffers™ hereby represents and warrants to Network Operator that: (a) HasOffers™ has the full legal right, power and authority to enter into and perform this Agreement; (b) Upon accepting Network Operator’s Application, this Agreement has been duly and validly executed and delivered by the Parties and constitutes HasOffers’™ legal, valid and binding obligation which is fully enforceable against HasOffers™ in accordance with its terms; and (c) HasOffers™ understands and agrees that Network Operator may enter into similar agreements with other tracking companies in direct competition with Network Operator; and (d) HasOffers™ will use reasonable efforts to cure any defects in the operation or functionality of any software provided to Network Operator as part of the HasOffers™ Platform, site, Transaction Tracking Codes and/or associated products and/or services (collectively, the “HasOffers™ Products and Services”) that have been brought to HasOffers’™ attention, but HasOffers™ EXPLICITLY DISCLAIMS ANY WARRANTY THAT ANY SUCH DEFECT IN THE HASOFFERS™ PRODUCTS AND SERVICES WILL ACTUALLY BE CURED OR CORRECTED.

15.2 TO THE FULLEST EXTENT PROVIDED FOR BY LAW, THE HASOFFERS™ PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SUBJECT TO SECTION 15.1, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). HasOffers SPECIFICALLY DISCLAIMS ANY WARRANTY TO YOU THAT YOUR USE OF THE HASOFFERS™ PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE FREE OF BUGS, ERRORS, PROBLEMS, INTERRUPTIONS, OR OTHER LIMITATIONS, OR THAT ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE HASOFFERS™ PRODUCTS AND SERVICES WILL BE ACCURATE OR RELIABLE.

15.3 HasOffers™ MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE HASOFFERS™ PRODUCTS AND SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY NETWORK OPERATOR FROM HasOffers™ THROUGH THE HASOFFERS™ PRODUCTS AND SERVICES OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.

15.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HASOFFERS™ PRODUCTS AND SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

16. Limitation of Liability.

16.1 HasOffers™ HAS NO LIABILITY, WHETHER DIRECT OR OTHERWISE, TO NETWORK OPERATOR, ANY CUSTOM NETWORK CUSTOMER, ADVERTISER, PUBLISHER OR ANY OTHER THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR NETWORK OPERATOR’S USE OF, OR INABILITY TO USE, THE HASOFFERS™ PRODUCTS AND SERVICES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, HasOffers™ IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN HasOffers™ AND NETWORK OPERATOR. THE HASOFFERS™ PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO NETWORK OPERATOR WITHOUT SUCH LIMITATIONS TO THE FULLEST EXTENT OF SUCH APPLICABLE LAWS.

16.2 UNDER NO CIRCUMSTANCES SHALL HasOffers™ BE LIABLE TO NETWORK OPERATOR, CUSTOM NETWORK CUSTOMERS, PUBLISHERS, ADVERTISERS OR ANY OTHER THIRD PARTY IN ANY MANNER WHATSOEVER ARISING FROM NETWORK OPERATOR’S PARTICIPATION IN THE HASOFFERS™ PLATFORM. HasOffers’™ MAXIMUM AGGREGATE LIABILITY TO NETWORK OPERATOR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE FIVE HUNDRED DOLLARS ($500.00). NETWORK OPERATOR ACKNOWLEDGES AND AGREES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE.

17. Publicity and Announcements.

The Parties intend to make a good faith effort to jointly and independently promote their relationship as service-provider/client through press releases, websites and related media (collectively, the “Promotion”), and such Promotion may include not just the Network Operator and HasOffers™ brands but also those of HasOffers’™ other clients using the Services. The Parties will use best efforts to coordinate any such Promotion and shall notify each other of any planned Promotion relating to this Agreement and the Services described herein. The Parties acknowledge that the consent of the other Party is required prior to any use of the other Party’s marks, rights, images or copyrighted materials, and you agree herein that you have given HasOffers™ such consent to use your trademark and/or logo on its Website for the sole purpose of listing you as a client of HasOffers™, and that any Termination of this Agreement, with thirty (30) days notice, will serve to rescind such consent by you for any use by HasOffers™ of your trademark and/or logo. Network Operator shall not create, publish, distribute or permit any written material that makes reference to HasOffers™ or HasOffers™ without first submitting such material to HasOffers™ and receiving prior written consent from HasOffers™, which HasOffers™ may withhold in its sole discretion; provided, however, that Network Operator can promote its Content and/or its CP Channel by publishing and promoting the Uniform Resource Locator (“URL”) associated with the applicable Content and/or CP Channel in accordance with any and all applicable state and federal laws, statutes, rules and regulations.

18. Collection and Use of Data.

HasOffers™ does not collect information about a Network Operator’s Custom Network-related transactions, other than what it receives directly from Network Operator or through the installed Transaction Tracking Codes. HasOffers™ reserves the right to utilize this data on a non-personally identifiable, aggregate basis, which may include Network Operator’s information, to analyze the performance of the HasOffers™ Platform and/or Site, monitor the use of the Transaction Tracking Codes and promote HasOffers™ Platform and/or Site performance and functionality. When Network Operator’s account is disabled, inactive or paused, including for non-payment, HasOffers™ reserves the right to utilize Network Operator’s personally identifiable information for their advertisers and affiliates.

19. Governing Law.

The Agreement, and your relationship with HasOffers™ under this Agreement, shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and HasOffers™ agree to submit to the exclusive jurisdiction of the courts located within the county of King, Washington to resolve any legal matter arising from the Agreement.

20. Indemnification.

Network Operator agrees to indemnify, defend and hold HasOffers™, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from any claim related to: (1) Ads, Advertiser Websites, Publisher Websites, Custom Network Products and any and all other information, products and/or services posted, made available and/or linked to in connection with the Ads, Advertiser Websites, Publisher Websites and/or Network Operator’s participation in the HasOffers™ Platform; (2) Any act or omission of any Publisher, Advertiser and/or Custom Network Customer; (3) Network Operator’s breach of the Agreement and/or any representation or warranty contained herein; (4) Any claim that HasOffers™ is obligated to pay any taxes in connection with Network Operator’s participation in the HasOffers™ Platform; and/or (5) Network Operator’s participation in the HasOffers™ Platform in any manner whatsoever.

21. Dispute Resolution Provisions.

Should a dispute arise concerning the terms and conditions of the Agreement, or the breach of same by any party hereto, the parties agree to binding arbitration conducted in King County, Washington in accordance with the then current Commercial Arbitration rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude HasOffers™ from seeking injunctive relief in any jurisdiction, without posting bond, in order to protect its rights pending arbitration. To the extent permitted by law, you agree that you will not bring, join or participate in any class action lawsuit as to any claim, dispute or controversy that you may have against HasOffers™ and its employees, officers, directors, members, representatives and assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorney’s fees and court costs that HasOffers™ incurs in seeking such relief. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement and does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above.

22. Force Majeure.

Both parties agree that neither party will be liable, or be considered to be in breach of the Agreement, on account of either party’s delay, or failure (other than for payment obligations arising hereunder), to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond either party’s reasonable control and such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

23. Electronic Signatures.

You acknowledge and agree that by clicking on the “submit” button, or such similar links as may be designated by HasOffers™ as a means of accepting the Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE PRODUCTS AND/OR SERVICES OFFERED BY HasOffers™. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

24. Language of the Agreement.

Where HasOffers™ has provided you with a translation of the English language version of the Agreement, you agree that the translation is provided for your convenience only and that the English language versions of the Agreement will govern your relationship with HasOffers™. If there is any disparity between the English language version of the Agreement and the translated version provided for your convenience, the English language version shall control.

25. Entire Agreement.

The Agreement, collectively with The HasOffers™ Privacy Policy, all other applicable HasOffers™ operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference shall constitute the entire agreement between you and HasOffers™ and governs your use of the HasOffers™ Platform (but excluding any services which HasOffers™ may provide to you under a separate written agreement), and completely replaces any prior agreements between you and HasOffers™ in relation to the HasOffers™ Platform. There are no third party beneficiaries of the Agreement. The headings of sections or other subdivisions of the Agreement will not affect in any way the meaning or interpretation of the Agreement.

26. Miscellaneous.

26.1 Should any part of the Agreement be held invalid or unenforceable, by any court of law, having the jurisdiction to decide on this matter, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

26.2 Network Operator agrees that any unauthorized and/or unlawful use of the HasOffers™ Platform would result in irreparable injury to HasOffers™ for which monetary damages would be inadequate. In such event, HasOffers™ shall have the right, in addition to other remedies available to it pursuant to the Agreement, to seek immediate injunctive relief against Network Operator without the need to post a bond. Nothing contained in the Agreement shall be construed to limit any legal remedies available to HasOffers™.

26.3 The Parties expressly agree that the relationship between them under this Agreement is that of two principles dealing with eachother as independent companies subject to the terms and conditions of this Agreement, at no time, past, present or future, shall the relationship of the parties be deemed, nor is anything in this Agreement intended to constitute an agency, partnership, joint venture, franchise, sales representative or employment relationship. Network Operator has no authority to make or accept any offers or representations on behalf of HasOffers™. Network Operator is prohibited from making any statement, whether on the HasOffers™ Platform or otherwise, that could possibly contradict anything in this Section 26.3.

26.4 To the extent that anything in or associated with the Site, HasOffers™ Platform, HasOffers™ Privacy Policy, or any other applicable HasOffers™ operating rules, policies, price schedules and other supplemental terms and conditions or documents, is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

26.5 HasOffers’™ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any waiver by HasOffers of any provision hereunder on one or more occasions shall not preclude HasOffers from thereafter requiring strict adherence to such provision or any other provision of this Agreement.

26.6 Any attempt by any individual, whether or not Network Operator, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the HasOffers™ Platform is a violation of both criminal and civil law and HasOffers™ will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity, including injunctive relief, without being required to post bond.

26.7 Network Operator is not permitted to transfer any rights and obligations pursuant to the Agreement without the express written consent of HasOffers™. Any attempt to do so will be null and void and may result in the immediate Termination of the Agreement. HasOffers™ may assign or transfer any rights and obligations pursuant to the Agreement without the consent of Network Operator. The Agreement will be binding on, inure to the benefit of and be enforceable against HasOffers’™ successors and assigns.

26.8 HasOffers™ may provide notices to Network Operator by posting notices or links to notices in the Network Operator account area. Notices to Network Operator may also be made via e-mail, regular mail, overnight courier or facsimile at Network Operator’s contact addresses of record as posted on the Site. If Network Operator wishes to provide notice to HasOffers™, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: 2220 Western Avenue, Seattle, WA 98121. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by authorized HasOffers™ personnel.