This Master Services Agreement (“MSA”) is entered into by and between ValueClick Media, a division of ValueClick, Inc., (“Company”) and the advertiser or an agency on behalf of an advertiser (“Advertiser”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged.  Company and Advertiser agree to be legally bound as follows:

1. Agreement

   Both Company and Advertiser are parties to agreements with Commission Junction (“CJ”) and are participants in the CJ Network (the “CJ Program” or “Program”).  This MSA provides terms and conditions applicable to Advertiser’s and Company’s participation in the Program, which includes Company’s delivery or display of advertising campaigns and promotions on Advertiser’s behalf (“Campaigns”), that are in addition to any terms and conditions that Advertiser has agreed to with CJ. 

2. Advertiser’s Creative
   • Advertiser is solely responsible for the substantive content of each advertisement, creative and substantive materials (“Creative”) required for Company to market the Campaign, including but not limited to: banners, language/text for promotional e-mail text, links, video, rich media, and any other creative content required. In the event Company develops any Creative for Advertiser (“Custom Creative”), Advertiser may only use the Custom Creative for incorporation into Company’s network and Advertiser may not use the Custom Creative for placement with any other party.
   • Advertiser agrees to pay for all transactions.
   • Company cannot monitor all host sites for appropriate content and makes no representations with respect to content on any website where the Creative may be placed.
   • Advertiser agrees to allow Company to make changes or alterations to the Creative as necessary.  Advertiser hereby grants to Company and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Creatives and Campaign(s) in connection with its obligations hereunder.
   • Company reserves the right to pause or refuse any Campaign that does not meet or satisfy Company’s quality criteria, performance expectations, operational requirements or for any other reason effective upon notice to Advertiser. Company shall have no liability to Advertiser for failure to place any Campaign on its or any third-party network.
   • All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, Creative performance, and market pricing limitations.
   • Company reserves the right to pause any Campaign effective upon notice to Advertiser. If during or following the pause period Company deems that the Campaign will not meet minimum performance expectations or operational requirements, Company reserves the right to cancel the Campaign following twenty-four (24) hours written notice to Advertiser.
   • Company shall have no liability to Advertiser for failure to place any Campaign on its or any third-party publisher’s network. 
3. Display Advertising
   • Creative for display advertising may be placed on websites, mobile applications, and/or mobile websites unless otherwise designated. Company shall have the right to place pixels on Advertiser’s website as may be required to measure webpage activity, track and/or measure consumer response to the Campaign and provide estimated live statistics for Company’s affiliates. The technical specifications of the tracking system and its delivery methods must be met to the reasonable satisfaction of Company before any advertising or ad-serving will be provided by Company and any data collected shall be jointly owned by the parties. 
4. Advertiser Warranties
   • Advertiser represents and warrants that with respect to all Campaigns: (i) it holds all necessary rights to permit the use of all Creative provided to Company under this MSA; (ii) the use, reproduction, distribution, transmission or display of any Creative and any materials to which users can link through to from such Creative, or any products or services made available to users through the Creative will not (A) violate any law (including but not limited to the Federal Trade Commission Act, CAN-SPAM Act of 2003 and/or any applicable rules or regulations of the Federal Trade Commission and/or relating to online privacy), or infringe any third party right; or (B) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct; (iii) it has a reasonable basis for all claims made within the Creative, such Creative contains all disclosures required by law, and it possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns; (iv) the landing page for each Campaign contains a prominent link to Advertiser’s privacy policy, which policy which complies with all FTC requirements regarding transparency and notice and choice; (v) all consumer data collected pursuant to this MSA shall only be used for legal purposes; (vi) it shall clearly and conspicuously post notice on its website(s) regarding the collection, transfer and use of data collected on such website(s) by it and third parties, including an appropriate choice mechanism, that is in compliance with the 2008 Network Advertising Initiative’s Principles, as amended and the Interactive Advertising Bureau’s Code of Conduct; (vii) no data collected pursuant to this MSA shall be used for online preference marketing based on a consumer’s medical condition absent their express consent obtained after clear and conspicuous notice of such potential use; (viii) no Campaign is targeted to children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess or participate in; and (ix) its Campaigns shall be in compliance with the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising found at www.aboutads.info.
   • If Advertiser utilizes an electronic signature, it agrees that its e-signature is the legal equivalent of its manual signature on all contracts and any other contractual documents, including any insertion orders, shall be construed as an acceptance of the terms. 
   • Advertiser acknowledges and agrees that Company is merely a venue which facilitates relationships between the Advertiser and its sub-publishers. Company does not pre-screen the Creative for inclusion on the Company network and it shall not be responsible for policing, monitoring or editing any Creative.
   • Advertiser agrees to indemnify and hold Company, its third party publishers and list providers and their respective affiliates, employees, officers, agents, directors and representatives (“Company Indemnified Parties” or “CIP”), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses arising out of or related to any breach of warranty or breach of this MSA. The indemnity obligations of this paragraph are contingent on CIP giving prompt written notice of any such claim.  CIP will have sole control over the litigation or settlement of such claim.
   • Each party represents and warrants that it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this MSA and that its performance hereunder will fully comply with all applicable laws, rules and regulations, including but not limited to the CAN-SPAM Act of 2003.  Any agency executing this MSA on behalf of its client represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this MSA.
5. Limitations of Warranties and Liability
   • THE ADVERTISING SERVICE PROVIDED BY COMPANY, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. 
   • COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
   • COMPANY SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED. COMPANY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT FOR THE ADVERTISING CAMPAIGN IN QUESTION.
6. Termination
   • Termination of this MSA shall not relieve Advertiser from its obligation to pay any amounts due under this MSA.
   • Company reserves the right to suspend and/or terminate this MSA immediately in the event that Advertiser violates a material term of this MSA.
7. Proprietary Matters
   • Each party agrees that, for a period of one (1) year from the receipt of any confidential information from the other party such receiving party shall use such information only in connection with and in furtherance of the purposes of this MSA and shall use the same means it uses to protect its own confidential proprietary information. Information that is marked or identified (orally or in writing) as confidential, or any information that should, under the circumstances surrounding disclosure, reasonably be treated as confidential information.
   • Confidential Information does not include information that the receiving party can document: (a) is or becomes (through no improper action or inaction) generally known by the public; (b) was in its possession or known by it without restriction prior to receipt from the other party; (c) becomes available to it from a source other than the other party having no obligation of confidentiality; or (d) is requested pursuant to a legal or governmental order or subpoena; provided, however, the Receiving Party shall utilize reasonable efforts to notify the Disclosing Party of such order or subpoena in the event the Disclosing Party desires to seek a protective order. 
   • The parties agree and understand that a material breach of this Section will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage.  Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond.
8. Miscellaneous
   • Neither party shall be liable for any delay or failure to perform as required (except with respect to payment obligations) as a result of any causes or conditions which are beyond such party’s reasonable control.
   • This MSA shall be governed by the laws of the State of California without respect to choice of law rules and exclusive jurisdiction and venue shall be in the state and federal courts in Los Angeles County, California.  Personal services shall be waived and service may be effected by overnight mail or by U.S. mail with delivery receipt.  
   • All notices shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail, or recognized national overnight courier service, or delivered personally, to the address set forth in the Program. In the case of Company, a copy shall be sent to General Counsel. 
   • Advertiser may not assign this MSA without the express prior written consent of Company. 
   • Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. 
   • Advertiser agrees that Company may identify it as an Advertiser in client lists and other marketing materials. 
   • This MSA and exhibits or addenda thereto constitutes a valid and binding agreement between the parties, and has been duly executed by an authorized representative of each party and may only be modified in writing by authorized representatives of the parties.  Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this MSA shall survive and remain in effect after such happening.
   • Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter.