PUBLISHER AGREEMENT (as of 8/1/2010) This Publisher Agreement (the “Publisher Agreement”), is by and between Revenue Media Empire, Inc. d.b.a. Walla Media, a California corporation, (“Walla Media”) and your company or you individually (“Publisher”) (collectively, the “Parties”), and, together with any applicable Insertion Order (“IO”), shall govern Publisher’s participation in the Walla Media Marketing Program (the “Marketing Program”). The Publisher Agreement and any governing IOs may be collectively referred to as the “Agreement.” This Publisher Agreement shall replace any and all prior agreements between the Parties, which, by entering into this Publisher Agreement, are rescinded. 1. DEFINITIONS “Publisher” means the individual or entity defined as “Publisher” above, including all partners, shareholders, officers, directors, members, managers, partners, employees, agents, Publishers, subsidiaries, trustees and independent contractors. “Offer” or “Offers” means any of advertisements, solicitations, promotions or marketing materials of Walla Media or its third party advertiser clients. “Proprietary Information” means any confidential, proprietary and trade secret information concerning Walla Media, and its parent, subsidiaries, Publishers, and acquired businesses, including, but not limited to, Walla Media’s contracts and terms of contracts with Publishers, customers, consumers, merchants, vendors, suppliers and agents; the terms of this Publisher Agreement and any IO; pricing policies, including the payout rates in any IO; programs, software, scripts or technology; from and subject lines; email creatives and tracking links; the identities, contact information and purchasing patterns of customers, consumers, merchants, vendors, suppliers and agents; methods of operation; proprietary computer programs or scripts; sales, profit, cost and other financial information; market information; business strategies; employee personnel information; technical processes and designs; information processing standards and practices; customer service and service quality standards; Trade Secrets (as defined below); and confidential information concerning or relating to the Walla Media’s employees, customers, merchants, vendors and suppliers. “Trade Secret” shall have the same meaning proscribed by California Civil Code § 3426.1(d). It shall include, without limitation, any and all of Walla Media’s software, programs, scripts and techniques, Walla Media’s customers and information concerning its customers and suppliers, including customer contract terms, services provided, vendors used, and other confidential and proprietary information relating to Walla Media’s customers and suppliers. 2. PUBLISHER TERMS, REQUIREMENTS AND STANDARDS a. General. Walla Media shall provide Publisher with materials and information that will allow Publisher to distribute Walla Media’s Offers. b. Acceptance of Terms. Publisher shall follow all terms, conditions, policies and procedures for an Offer that Publisher distributes as set forth in this Publisher Agreement, an applicable IO or as otherwise communicated to Publisher. This requirement shall include, but not be limited to, the use of approved (1) from and subject lines, (2) email content and/or creatives, and (3) placement and positioning criteria. c. Discretion to Distribute. Subject to the express restrictions herein or in an applicable IO, Publisher shall have the discretion to choose when to distribute an Offer (if at all) and to what extent. Publisher may cease distributing any Offer at any time unless doing so would cause Publisher to violate Section 2(b). d. Purpose and Quality Standard. The express purpose of this Agreement, for Wall Media, is that Publisher will generate valid and legitimate leads, sales, registrations or events for Walla Media and/or its third party advertisers (as the case may be). Accordingly, to the extent Publisher distributes Walla Media’s Offers, it shall perform this Publisher Agreement and any applicable IO in a manner that ensures the generation of legitimate Actions (defined in Section 6 below) to Walla Media and/or its third party advertisers. At a minimum, this requires Publisher to refrain from conduct in violation of Section 4. The provisions contained in this paragraph are a condition precedent to Walla Media’s payment obligations as set forth in Section 6. e. Suppression. Prior to distributing any Offer via email, Publisher shall download an Offer’s most current suppression list. Publisher shall use the suppression list to remove individuals who have lawfully “opted out” of receiving Offers from a particular advertiser, so that those individuals are excluded from any email distribution by Publisher. Thereafter, at least every seven days, Publisher shall download and use the most current suppression list for an Offer. Publisher shall never use suppression lists for any purpose except to remove email addresses from its distribution lists. Publisher shall take any and all measures necessary to ensure the security and secrecy of any suppression list. f. Unsubscribe Requests. In the event that Publisher receives a request from a consumer to be removed from all future email distributions by Walla Media, then Publisher shall provide all information provided by that consumer, including email address and a copy of the consumer’s communication, to Walla Media within forty-eight (48) hours of receipt. g. Modification or Termination of an Offer or IO. Publisher shall only distribute the most recent version of an Offer upon notification that Walla Media has altered, modified or amended the Offer. Publisher shall immediately cease any and all use of an Offer upon notification that an Offer has been terminated, and cease any and all use of prior versions of an Offer upon notification that an Offer’s creative materials, or from/subject lines, have been modified or altered. Where an alteration or modification to an IO affects the payout rate or permitted distribution dates, such changes shall take effect immediately, and Publisher’s continued distribution of an Offer after such notice shall be deemed acceptance of any such modification or amendment. Walla Media may provide notification of any change to an IO or Offer via email, telephone or instant message. h. Rules Governing Display Advertising. Publisher shall not promote any Offers on or through websites, blogs, social media sites or other search/display forums or media, even if permitted by an Offer’s terms and conditions, unless Publisher: (1) discloses any and all such websites prior to promotion (the “Website”); (2) discloses all sites on which Publisher placed links or redirects to the Website, including any representations made on those sites in connection with the link or redirect, prior to promotion; and (3) ensures that any and all redirects and referring URLs are visible and/or made available to Walla Media for tracking and compliance purposes; provided, the first two requirements shall not apply if Publisher distributes the Offer on: (1) websites owned/operated by a third party and through a reputable third party ad server, or (2) a third party’s website where the owner/operator is a public company that is traded on the NYSE or NASDAQ. Walla Media shall have the right to review Publisher’s Website(s) both before and after promotion of any Offer, and may approve or reject any Website(s) in its sole and absolute discretion. i. Reproduction of Offers. Publisher shall not copy, imitate, or reproduce any of Walla Media’s Offers, or the contents of any Offer (such as trademarks or copyrighted materials), except as necessary to carry out its obligations under this Agreement. j. Contact with Third Party Advertisers. With respect to any of Walla Media’s third party advertisers, Publisher shall not contact the owner (or its agent) of any such Offer for any reason. Publisher shall direct any questions or comments relating to such an Offer to Walla Media. k. Costs of Compliance. In the event Publisher is required, in connection with its performance of this Agreement, to incur any costs in order to comply with any federal or state laws, rules or regulations, then Publisher shall bear such costs at its own expense. l. Sub-Publishers; Prohibition on Network Syndication. Publisher may use Sub-Publishers in connection with its performance of this Agreement, subject to the following: i. Sub-Publishers shall not use any further Sub-Publishers and may not be a network. Network syndication of Walla Media Offers is explicitly prohibited. ii. Publisher assumes and accepts all responsibility and liability for the acts and omissions of its Sub-Publishers. The acts and omissions of any Sub-Publishers shall be deemed the acts of the Publisher. iii. Nothing contained herein is intended to confer any rights or third party beneficiary status on any Sub-Publishers, and Walla Media expressly disclaims any such rights. iv. Publisher shall assign separate sub-IDs and tracking links for each of its Sub-Publishers for compliance and tracking purposes. Walla Media shall have the right to terminate (for any reason) any Sub-Publisher from distributing an Offer, and notice of such termination may be communicated to Publisher by Walla Media orally or in writing. In the event Walla Media terminates any Sub-Publisher, Publisher shall carry out such termination within twenty four (24) hours of Walla Media’s notice of termination. 3. LIMITED LICENSE a. General. Publisher is granted a non-exclusive, non-transferable, license to use Walla Media’s Offers (including any trademarks or copyrighted material connected thereto) and Proprietary Information for the limited purpose of carrying out its obligations under this Agreement. Publisher shall not sublicense any rights or duties under this Agreement without the express written consent of Walla Media. This license shall terminate, and Publisher shall immediately cease any and all use and/or distribution of Walla Media’s Offers and Proprietary Information upon the termination of this Agreement b. No Ownership. Nothing in this Agreement, shall transfer the ownership of any intellectual property owned or controlled by Walla Media (or licensed to Walla Media by its clients) to Publisher, nor grant any right or license other than the limited license stated above. c. Access to Walla Media’s Website. Walla Media shall provide Publisher with login information in order to access Walla Media’s website for the purpose of carrying out its obligations herein. Publisher shall only share or disclose its login information with its internal employees; it shall not share or disclose its login information with any Sub-Publisher, subsidiary, independent contractor or other third party. Publisher shall not attempt to modify, alter, hack, manipulate or otherwise misuse Walla Media’s website. Walla Media shall be entitled to immediately revoke Publisher’s access to Walla Media’s website and terminate this Agreement in the event that Publisher violates this paragraph. 4. PROHIBITED CONDUCT a. Fraud. Publisher shall not distribute or promote any Offer using Fraudulent means. “Fraudulent” means shall include, but not be limited to, the following: i. Creating additional Actions through fraudulent traffic generation techniques such as pre-populated forms, bots, scripts or other, similar techniques. ii. “Impression spam,” which is the frequent or automated searching of a search term, in connection with paid search campaigns, in order to reduce a competitor’s click-through rates on their advertisements. iii. Any other form, method, program, script or technique that artificially inflates the number of Actions generated for an Offer, including the use of gift cards. b. Incentivized Actions. Publisher shall not distribute any Offer on or through an Incentivized website, or using Incentivized means, unless explicitly allowed by the Offer’s terms and conditions. “Incentivized” means that a host website or media offers incentives to users, including, but not limited to, cash, points, prizes, gift cards or other thing of value, if the user engages in conduct that would generate an Action for an Offer. c. Unapproved or Unlawful Websites. Publisher shall not distribute any on or through a Website that fails to comply with the criteria set forth in Section 2(h), or include any unlawful content on its Website, including, but not limited to, false, misleading or deceptive representations. d. Unapproved Alterations to Offers. Publisher shall not alter any Offer, including the text, pictures, from or subject lines, graphics, sound, video, programming code and other data used to comprise an Offer unless approved in writing by Walla Media. In the absence of written approval by Walla Media, any alteration by Publisher shall invalidate any Action generated from the use of the altered Offer, thereby forfeiting Publisher’s right to payment that might otherwise exist e. Opt-Out Links and Physical Address. Publisher shall only use opt-out links and physical addresses in an email advertisement that are provided by Walla Media and/or set forth in an Offer’s terms, conditions, policies or procedures. Publisher shall not include any alternative or additional opt-out links or physical addresses in an email, including, but not limited to, an opt-out link or physical address of Publisher, unless authorized in writing by Walla Media. f. Unlawful Conduct. Publisher’s performance of this Agreement shall comply with all applicable laws, rules and regulations, whether federal or state; any and all United States treaties; and the laws of any nation that has reciprocal treaty rights with the United States. Without limiting the foregoing, Publisher shall not use, in connection with its performance of this Agreement, any third party’s trademark, publicity rights, or other intellectual property in any From/Subject line, domain name, website content, email creative, or as a keyword. g. Unlawful Use of Suppression Lists. Publisher shall not use any suppression list for any purpose other than the removal of consumer email addresses from its distribution lists. Publisher shall never use any suppression list, or the information contained therein, for the purpose of distributing a commercial email advertisement, solicitation or promotion. h. Use of Name or Intellectual Property of Walla Media or Its Clients. i. Publisher shall not send any emails using or including the name Walla Media, Revenue Media Empire, or any link to a Walla Media website, unless such use is expressly required to comply with an Offer’s terms and conditions or is part of the Walla Media approved creative materials. Publisher shall not send any emails using Walla Media or Revenue Media Empire as the indentified sender, or in the from or subject line of any email. ii. Publisher shall not use Walla Media’s name or any portion of the name as part of any business entity name, trade name or internet domain, with any prefix, suffix or other modifying words, terms, designs or symbols or in any modified form, without the prior written consent of Walla Media. iii. Publisher shall not use Walla Media’s trademarks, service marks, trade dress, copyrights or other intellectual property without the prior written consent of Walla Media. iv. Publisher shall not use the trademarks, service marks, trade dress, copyrights or other intellectual property of Walla Media’s clients, including, but not limited to Dish Network. Publisher shall not register or use any internet domain or sending domain using the name (in whole or in part, including any derivations) of any of Walla Media’s clients or third party advertisers, unless such use is required or permitted in the Offer’s terms and conditions, as reflected in the applicable IO. i. Miscellaneous Prohibitions. Publisher shall not promote any Offer using any of the following explicitly prohibited techniques or methods: i. A website that solely contains a list of links or advertisements; ii. A website that only contains an Offer; iii. A website that is not fully functional (i.e. no “under construction” sites or sections); iv. A website that includes spawning process pop-ups or that generates or creates multiple pop-up windows; v. The use of third party websites’ internal communications systems, including, but not limited to, internal email (e.g. myspace.com or facebook.com email), bulletin boards, chat rooms, Craig’s List (or similar websites), or comments; vi. Associating or linking an Offer to a website or content that includes any of the following: (i) racial, ethnic, gender, age, religious, political, or sexual orientation discrimination; (ii) investment or business opportunities or advice prohibited by law; (iii) obscenity, profanity, pornography, violence or adult content; (iv) defamatory, abusive or threatening language, images or content; (v) promotion of illegal substances or narcotics, gambling, or other criminal conduct such as bomb building or counterfeiting; (vi) pirating software or media; (vii) hacking, spoofing, phishing or phreaking; or (viii) any person or entity associated with fraud, felonious crime, or unethical business practices. vii. Spoofing, redirecting or trafficking from or to websites containing adult content. viii. Use of spyware, adware or any other form of malware that generates new web browser windows. 5. COMPLIANCE a. General. Walla Media monitors Publisher’s performance of this Agreement in order to ensure that Publisher and its Sub-Publishers comply with all laws, rules and regulations, as well as to ensure compliance with this Agreement. b. Test Emails. Prior to distributing an Offer through email messages, Publisher shall send a test or sample email to Walla Media at an email address or addresses provided by Walla Media. c. Duty to Cooperate. Publisher shall cooperate with Walla Media in the event that Walla Media requests any information that is related to Publisher’s compliance with this Agreement or any law, rule or regulation, including making available any and all employees, agents, Sub-Publishers, subsidiaries or independent contractors whose statements and/or knowledge are necessary to provide the information requested. Publisher shall provide requested information (or make available the appropriate individual) within five (5) business days of Walla Media’s request unless a different timeframe provided by Walla Media (which may be greater than or less than five (5) days); provided, however, that Publisher shall provide a consumer’s opt-in information to Walla Media within one (1) business day of any request. d. Notice and Consent to Monitoring. Publisher acknowledges and consents to Walla Media using any means to monitor Publisher’s compliance with this Agreement and all applicable laws, rules and regulations, which may include the use of “seed” accounts and third party services such as Lashback, UnsubCentral or Email Analyst. 6. PAYMENT a. General. Walla Media shall pay Publisher for each Action that it generates. The payout amount per Action, and the criteria setting forth what constitutes an Action, shall be defined in the applicable IO. Unless the IO specifies otherwise, Payments shall be made to Publisher within seven (7) days of the end of the calendar month in which Publisher generated any Actions. Additionally, payments to Publisher shall be governed by the following: i. Payments to Publisher shall be made by check, which shall be delivered to the address that Publisher provides to Walla Media in connection with its application or registration, until Walla Media receives written notice otherwise. However, if the amount of a payment exceeds $10,000 U.S., then payment shall be made via ACH or wire transfer. ii. If any monthly payment due is less than $50.00 U.S. (the “Payment Floor”), then Walla Media shall hold any such payments (interest free) until the cumulative amount due to Publisher, from all unpaid amounts, exceeds the Payment Floor, at which time such time all such monies shall be paid as set forth in this Section 6. Provided, the terms in this paragraph shall not apply following termination of this Agreement, where the amounts due to Publisher represent a final payment. b. Exclusions. No payments shall be made to Publisher, and Publisher agrees to forfeit any such payments, if Walla Media determines, in its reasonable discretion, that any Action is: i. Incomplete; ii. Contains duplicate information in any respect; iii. Made by a person residing outside of the United States or Puerto Rico (unless expressly allowed by the Offer’s terms); iv. Made by a person under the age of 18 (unless expressly allowed by the Offers terms); v. The product of an Offer containing an unapproved alteration; vi. Incentivized, unless the offer is an incentivized offer; or vii. Fraudulent, involves the use of Prohibited Conduct or is otherwise invalid. To the extent that excluded actions are limited to one or more Sub-Publishers, then Publisher’s forfeiture of payment shall be limited to such Sub-Publishers. c. Tracking. Walla Media utilizes a tracking system that will log consumer responses and calculate the number of Actions. The information logged and reported by Walla Media’s tracking system will be used to compute the amounts owed to Publisher. In the event that Walla Media’s tracking system fails, then Walla Media shall pay Publisher, for the period of the failure, an amount equal to the actual number of valid Actions (assuming such calculation can be made reliably from independent sources). If Walla Media is unable to reliably calculate the number of actual Actions, it shall calculate Publisher’s Actions for the downtime as follows: Walla Media shall multiply the duration of the failure by the average number of daily Actions generated and tracked by Publisher during that same calendar month; duration shall be calculated, where it involves less than a full day, as a percentage of a full day, where a full day is from 9:00 a.m. PST to 5:00 p.m. PST. d. W-9. Walla Media’s payment obligations, as set forth herein, are contingent upon it receiving a W-9, or equivalent documentation, from Publisher. e. Audit. Walla Media’s calculation of the number of Actions shall be final and binding, subject to any adjustments for any violation of this Agreement, including, but not limited to, acts of Prohibited Conduct. Any questions or comments about Walla Media’s calculation of the number of Actions must be submitted in writing within fifteen (15) days of receipt of payment, otherwise all claims relating to the accuracy of Walla Media’s calculations shall be expressly waived. f. Chargeback and Offset. Walla Media shall have the right to chargeback and recover any monthly payment already made to Publisher where Walla Media discovers or determines, after paying Publisher, that: (i) any Actions for which Publisher was already paid were generated through Fraud or Prohibited Conduct; or (ii) a third party advertiser of an Offer failed to pay Walla Media for any reason (provided, however, that Walla Media shall only be permitted to chargeback and recover an amount equal to what it paid Publisher for Actions generated for that Offer); or (iii) a third party advertiser refused to pay Walla Media and, in Walla Media’s reasonable discretion, the refusal was attributable to Publisher (provided, however, that Walla Media shall only be permitted to chargeback and recover an amount equal to what it paid Publisher for Actions generated for that Offer). Walla Media shall further have the right to offset against outstanding or future payments any (1) chargebacks (as set forth in this paragraph), or (2) costs, damages, expenses, fees, fines or other losses that Walla Media actually incurs or may incur as a result of: (i) Publisher’s breach of any provision in this Agreement (including, but not limited to, Prohibited Conduct or submission of fraudulent Actions); (ii) any action by Publisher that causes Walla Media to breach an agreement with a third party; or (iii) Publisher’s violation of any law, rule or regulation. 7. TERM AND TERMINATION a. Term. This Agreement shall commence upon Publisher’s indication of acceptance of this Publisher Agreement and remain in full effect until terminated. Either Party may terminate this Agreement upon three (3) days written notice. b. Termination. Either Party may immediately terminate this Agreement upon the occurrence of any of the following: i. A violation of any law, rule or regulation by the non-terminating Party that arises from or relates to its performance of this Agreement, including, but not limited to, a violation of the CAN-SPAM Act of 2003; ii. A material breach of this Agreement by the non-terminating Party, which shall expressly include any breach of Sections 4, 5, 8 or 9; iii. The dissolution or insolvency of either Party; or iv. A Party petitions for bankruptcy or seeks other relief under bankruptcy laws. c. Notice and Effect. Notice of termination shall be provided in writing and will take effect on the date specified in the notice, subject to any minimum notice requirements set forth above. Any payments owed to Publisher shall be paid consistent with the provisions in Section 6. 8. REPRESENTATIONS AND WARRANTIES a. Authority. Publisher represents and warrants that it has full power and authority to enter into this Publisher Agreement. b. Lawful Purpose. Both Parties represent and warrant that their execution, delivery and performance of this Agreement will not violate any applicable law, statute or governmental regulation, nor will it violate any contract or agreement with any third party. c. Licenses. Both Parties represent and warranty that they have full power and authority to grant the licenses granted herein. d. No Guarantees. Neither Party represents, warrants or makes any specific or implied promises as to the outcome of or income generated by any Offer. e. Legal Compliance. Publisher represents and warrants that it will comply with all applicable laws, rules and regulations, including the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), and acts amendatory thereto or rules promulgated thereunder, and any state Child Protection Registry Acts. f. Consumer Consent. Publisher represents and warrants that it will only distribute Offers by email to consumers who have provided affirmative consent to receive email advertisements from Publisher or third parties such as Publisher. g. Suppression. Publisher represents and warrants that it will timely obtain and use all Offer suppression lists, and that it shall not use any suppression for any purpose other than the removal of email addresses of consumers who have opted-out of receiving future advertisements from a sender (as defined by the CAN-SPAM Act of 2003). h. Use of Approved Content Only. Publisher represents and warrants that it will only use approved Offer content, including approved from and subject lines, and shall not alter or modify any Offer content without the express written consent of Walla Media. i. No Controversial or Inappropriate Content or Links. Publisher represents and warrants that it will not promote any Offer in an email or on a Website, or linked to or from an email or Website, that contains any pornographic, obscene, discriminatory or political content, or that includes content relating to software pirating, hacking or other forms of on-line fraud. j. No Illegal Content or Links. Publisher represents and warrants that it will not promote any Offer in an email or on a Website, or linked to or from an email or Website, that contains or promotes illegal activities, including, but not limited to, gambling, illegal narcotics, prostitution, bomb building or counterfeiting. 9. PROPRIETARY INFORMATION, TRADE SECRETS AND NON-SOLICITATION a. Confidentiality. Publisher recognizes and acknowledges that it has acquired and will acquire Proprietary Information and Trade Secrets (as defined above) from and/or concerning Walla Media, and its parent, subsidiaries, Publishers, and acquired businesses. Publisher shall not, during or after the Term, use or disclose any Proprietary Information to any person, firm, corporation, association, or any other person or entity for any reason or purpose whatsoever, directly or indirectly, except as required to perform Publisher’s job duties hereunder or as required by law. In the event of termination of this Agreement, whether voluntary or involuntary, and whether initiated by Walla Media or Publisher, or upon request of Walla Media at any time, Publisher shall deliver to Walla Media all documents and data pertaining to the Proprietary Information and shall not take or remove from Walla Media (or its website) any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to any Proprietary Information. Publisher will not, at any time during or after the term of this Agreement, use, copy, publish, summarize, or remove from Walla Media’s premises any Proprietary Information, except, during the term of this Agreement, to the extent necessary to carry out Publisher’s duties and responsibilities under this Agreement. b. Protection of Trade Secrets/Nonsolicitation. Publisher acknowledges that Walla Media has spent significant time, effort and resources protecting its Trade Secrets (defined above). Any Trade Secret shall cease being a protectable trade secret if the information becomes part of the public domain or is rightfully disclosed to Publisher outside of the scope of his performance of his duties under this Agreement, by a third party not under a duty of confidentiality to Walla Media. In order to protect the Trade Secrets, and in consideration for the benefits provided to Publisher, Publisher hereby agrees that during the term of this Agreement and until the Trade Secrets cease being protectable trade secrets as set forth herein, or pursuant to applicable law, Publisher will not, using or relying on any Trade Secret, directly or indirectly, call on, induce or solicit, on behalf of Publisher or any third party, any current or prospective customer, merchant, vendor or supplier of Walla Media for the purpose of diverting, taking away or reducing the amount of current or prospective business of Walla Media, or otherwise interfere with the relationship between Walla Media, on the one hand, and its clients, customers, merchants, vendors or suppliers, on the other hand. In addition, Publisher will not, for a period of two (2) years following the termination of this Agreement, whether initiated by Publisher or Walla Media, directly or indirectly, as an agent, executive, consultant, representative, stockholder, manager, partner, or in any other capacity, recruit or solicit any person who is at that time employed or engaged by Walla Media, to terminate his or her relationship with Wall Media, or otherwise interfere with the relationship between Walla Media and its employees. c. Reasonableness of Covenants. Publisher acknowledges that the duration and restrictions set forth in Section 9(b) are reasonable in scope. If, at any time, the provisions of Section 9(b) shall be finally adjudicated to be invalid or unenforceable by a court of competent jurisdiction, the Parties hereby agree that the court making this determination will have the power to reduce the scope, duration, or area of the term or provision to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and that this Agreement will be enforceable as so modified. d. Third-Party Proprietary Information. Publisher acknowledges that Walla Media has received, and in the future will receive, from third parties, confidential information, subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes. Publisher will treat such information in a manner consistent with Walla Media’s agreement with such third parties, which, at a minimum, shall require Publisher to take any and all such actions as required in Paragraph 9(a)-(b). Without limiting the foregoing, Publisher will not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party any such confidential information, other than as necessary to perform Publisher’s duties under this Agreement. 10. LIMITATION OF LIABILITY; DISCLAIMER; LIMITED REMEDY a. Limitation of Liability; Time for Action. In no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Publisher Agreement, even if such party has been advised of the possibility of such damages. Any cause of action arising from or in connection with this Agreement shall be asserted within one (1) year of the date upon which such cause of action accrued, or the date upon which the complaining party should have reasonably discovered the existence of such cause of action, whichever is later. b. Disclaimer. The information, content and services on Walla Media’s website are provided on an “as is” basis, without warranty. Except as expressly provided herein, both Parties disclaim any and all representations and warranties, including the implied warranties of merchantability or fitness for a particular purpose. Publisher may use Walla Media’s website and promote Offers at its own risk. Walla Media does not represent nor warrant that the information on its website or provided by Walla Media is accurate, complete or current. c. Limited Remedy. Excluding claims for Indemnity as set forth in Section 11, the Parties agree that the maximum liability that either shall incur to the other, in the event that either party is found to have damaged the other, shall not exceed the sum of all payments made by Walla Media to Publisher during the six (6) month period immediately preceding the acts or omissions that caused the liability. 11. INDEMNITY Both Parties agrees to indemnify and hold the other Party and its members, officers, directors, employees and agents (collectively, the “Indemnitees”) harmless from and defend each such Indemnitee against any damages, liabilities, losses, taxes, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature whatsoever that are or may be incurred to a third party, which may be sustained or suffered by an Indemnitee in connection with any present or future threatened, pending or contemplated investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, to which any such Indemnitee is or was a party or is threatened to be made a party, and that arises from or is related to this Agreement. 12. MISCELLANEOUS a. Assignment. Publisher may not assign any of its rights hereunder without the prior written consent of Walla Media, which may be withheld for any reason. Walla Media shall have the right to assign or transfer the Agreement and its obligations hereunder to any successor-in-interest by way of sale, merger, consolidation, reorganization, or restructuring. b. Waiver. No delay or omission by either Party hereto in exercising any right, power or privilege hereunder shall impair such right, power or privilege, nor shall any single or partial exercise of any such right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege. c. Force Majeure. Unless expressly provided otherwise in this Publisher Agreement, either Party shall be excused from any delay or failure in performance caused by reason of any occurrence or contingency beyond its reasonable control, including, without limitation, acts of God, fire, flood, war, civil disturbance, power outage, sabotage, and accident or dispute with organize labor. The time for performance shall be extended for a period equal to the period that the force majeure event prevented performance, but the non-delaying party may terminate this Agreement in the event the delay continues for more than sixty (60) consecutive calendar days. d. Severability. To the extent any provision of this Agreement or application of it to any person, place, or circumstance shall be determined to be invalid, unlawful or otherwise unenforceable, in whole or in part, the remainder of this Agreement and such provisions as applied to other persons, places, and circumstances shall remain in full force and effect, and this Agreement shall be reformed to the extent necessary to carry out its provisions to the greatest extent possible. The Parties agree that this Agreement shall be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable law. e. Independent Contractors. The Parties to the Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power, or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Agreement will not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either party. f. Authorship of the Agreement. Both Parties to this Agreement will be considered the Agreement’s author. Any ambiguities that exist shall be interpreted equally between the parties and shall not be construed against either party on account that it was the drafter. g. Survival of Obligations. Termination of this Agreement shall not affect Publisher’s continuing obligations as set forth in this Agreement, including under Section 9 of this Agreement. h. Cumulative Rights. The rights and remedies provided herein are cumulative, and the exercise of any right or remedy, whether pursuant hereto, to any other agreement, or to law, shall not preclude or waive the right to exercise any or all other rights and remedies. i. Attorneys’ Fees and Costs. In the event that a dispute arises between the Parties that relates to or arises out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs. j. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without respect to choice of law rules and the Parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Los Angeles County, California for such purpose. k. Electronic Signature. This Publisher Agreement shall be deemed accepted by Publisher upon its electronic assent to these terms, which Publisher shall make on or through Walla Media’s website. l. Rescission of Prior Agreements. All prior agreements or terms and conditions between or governing the Parties, with respect to the subject matter of this Publisher Agreement, are hereby mutually rescinded and replaced by this Publisher Agreement. Any terms in those prior agreements or terms and conditions requiring written notice of modification or termination are hereby expressly waived. m. Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter of this Agreement, and supersedes all prior agreements, negotiations and understandings relating to the subject matter of this Agreement, including specifically, any oral or written agreements between Publisher and Walla Media, its parent and/or subsidiaries. n. Modification. Walla Media reserves the right to amend or modify the terms of this Publisher Agreement from time to time. Walla Media shall post such amended or modified terms on its website and/or they shall be made available to Publisher upon request. Publisher’s continued participation in the Marketing Program shall be deemed acceptance of any modifications or amendments. No other amendments or modifications shall be effective unless in writing and signed by Publisher and an authorized signatory of Walla Media. o. Conflict with IO. In the event of a conflict between the terms in this Publisher Agreement and any IO, the terms of this Publisher Agreement shall supersede any conflicting terms in the IO, and the terms contained in this Publisher Agreement shall govern, unless the IO contains the following language (in all caps as provided herein), which shall immediately follow the conflicting term in the IO: “THE PARTIES EXPRESSLY INTEND FOR THE PRECEDING TERM TO SUPERCEDE ANY CONFLICTING TERMS IN THE PUBLISHER AGREEMENT.” p. Notice. Any notice under this Agreement shall be in writing and delivered by personal delivery, express courier, confirmed facsimile, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with express courier, upon confirmation of receipt of facsimile, or five (5) days after deposit in the mail. Notices shall be sent to Publisher at the address and fax number provided by Publisher during registration, or to such other address or fax number as it specifies in a writing delivered to Walla Media pursuant to this paragraph. Notice shall be given to Walla Media at its address set forth below, or to such other address as it specifies in a writing delivered to Publisher pursuant to paragraph: Walla Media 3122 Santa Monica Blvd Ste 302 Santa Monica, CA 90404 Fax: 888-444-6052 q. Publicity. Neither Party will create, publish, or distribute, directly or indirectly, any written material that makes reference to the other Party or its products or services, without the express written consent of the other Party.