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1. Agreement. This Agreement sets forth the terms and conditions whereby a party that wishes to advertise its product or service (“Advertiser”) and a party that owns media inventory including but not limited to email lists, for the purpose of allowing advertising to appear on its media properties (“Publisher”), direct and indirect access to and use of an advertising application which allows Advertisers to post Offers of advertising on the system, and Publishers, who agree to the terms of said Offers, the right to place that advertising automatically on their media properties. Red Turtle Media.com.is solely owned and offered by Red Turtle Media.com (“Company”), pursuant to a limited license. Advertiser may be referred to as “Clients” or individually as “Client”. Company and Clients may be individually referred to herein as a “Party” and collectively as “Parties”. Clients agree to use Red Turtle Media.com and any additional services offered by Company in the future only in accordance with this Agreement, and any amendments thereto. 2. Limited License. Company grants Client a non-transferable, exclusive limited license to use and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein, including the limitations on disclosure set out below. Client may only access the system via email or Web Browser or in a manner approved in writing by Company. Client agrees that Client does not have, nor will Client claim any right, title or interest in the application, system, method of doing business or any elements thereof (including, without limitation, the grant of a license in or to any software, web-based applications, source codes, modifications, updates, enhancements, data obtained through use or any other aspects of Company’s service), the names "Red Turtle Media.com, " "Red Turtle Media,.com" "Red Turtle Media” or any derivations thereof, or any other trademarks or logos owned or controlled by Company and made available to Client (collectively, the "Red Turtle Media, INC Intellectual Property"). 3. Service. Advertisers shall establish in its Offer, the amount and terms under which a Publisher will be paid for generating events (“Specified Events”). Such Specified Events may include but are not limited to click-throughs, clicks, sales, leads, qualified leads, impressions, registrations, and downloads. Clients agree that the definitions of the aforementioned Specified Events are listed on the , and such definitions shall govern this Agreement. Unless otherwise specified, Advertisers may change their Offers via at any time. Similarly, unless otherwise specified, Publishers may drop previously accepted Offers at any time. Company is responsible for displaying all active Offers to Publishers, administering the serving of accepted Offers, and tracking the payments due from Advertisers and those due to Publishers. Advertisers are obligated to pay Company for all ads served under the terms of an Offer, provided the Specified Event in the Offer has occurred, as determined by Company. Clients agree that the invoices submitted to Advertisers and corresponding payments made to Publishers shall be based on the Specified Events as reported solely by Company. Company shall have sole responsibility to compile, calculate and deliver data required to determine billings to Advertisers and compensation to Publishers. Company's figures and calculations shall be final and binding upon all Clients. Any questions regarding the data provided by Company need to be submitted in writing within 10 days of receipt, otherwise the information will be deemed accurate and accepted as such by the receiving Party. Invoices are due upon receipt unless otherwise agreed to in writing. If prior credit arrangements have been made with Company, an Advertiser has up to thirty (30) days to pay an invoice. To reflect the added costs Company incurs as a result of Clients who are delinquent, a monthly service charge of 10% per annum accruing from the due date will be added to statements which remain unpaid for 30 days or more. In no event will the service charge be greater than the maximum rate permitted by any applicable law. In the unlikely event Company is required to institute legal proceedings to collect fees or other amounts due to Company, the Company will be entitled to recover all attorney’s fee and other costs of collection. In cases where a Client is participating as a Publisher and Advertiser, the Company reserves the right to offset payments and integrate the monthly billing so as to obviate the need to issue payments and invoices to the same Client. Company will use commercially reasonable efforts to collect all fees owed and due to Publisher. 6. Term and Termination. This Agreement shall commence upon the acceptance of this Agreement by both Company and Client. Company reserves the right to terminate Clients’ access to at any time without notice, and shall inform Clients’ designated representative via email within 48 hours of such termination. Restrictions contained in Sections 4, 14, and 16 shall remain in full force and effect despite any such termination. All payment obligations of Advertisers accruing prior to the termination date (and payment received by Company) shall survive until fully performed, as well as any obligations for facilitated offline transactions for a term of one (1) year from the termination date. This Agreement shall also be terminated upon the happening of any of the following: (i) the written agreement of both Parties; or (ii) the filing of any type of a petition in bankruptcy by either Party; or (iii) the dissolution or insolvency of either Party; or (iv) a breach of this Agreement by either Party, which breach is not cured within ten (10) calendar days of the receipt of the notice of breach. 7. General Company Representations and Warranties. Company represents and warranties that: (1) it shall use commercially reasonable efforts to maintain and operate the Red Turtle Media system ; (2) it has the legal right to operate the Red Turtle Media system ; (3) that it will use commercially reasonable efforts to collect all fees owed to Clients, and to pay such fees in the time agreed to; and (4) that it shall not disclose any information gathered from Clients to anyone outside the Company except under legal subpoena or with Company’s agents without the permission of Client. 8. General Client Representations and Warranties. Client represents and warrants that: (1) they own or have the legal right to use and distribute all content, products, and services displayed on its website, on others' websites and or on ; (2) they own or have the legal right to use any and all copyrighted material on its website, on others' websites or on ; (3) any use of as contemplated herein does not violate or infringe upon any United States copyright, trademark, patent or other intellectual property right of any third party; (4) Client is currently not and will continue to not be in violation of all applicable State and Federal laws, including the CAN-SPAM Act of 2003; (5) they have the right, power, and authority to grant the rights specified in this Agreement; (6) if instructed to do so by Company and/or if this Agreement terminates, Client will immediately remove from , their site or servers any ads, tags, links, pixels, module software or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service; (7) that Client will not attempt in any way to alter, modify, destroy, eliminate, conceal, or otherwise render inoperable or ineffective the source codes, tags, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Service Data”); (8) Client will remove any Service Data provided by Company upon request or upon termination of this Agreement; (9) from time to time, Client may authorize Company, in the form of an email or other written notice, to modify, place or accept on its behalf Offers for the purpose of testing, optimizing, or managing a campaign, and Client acknowledges that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of such campaigns; (10) they expressly represent that Client will not directly, indirectly, or via a third party, circumvent the Company in matters relating to this Agreement including matters relating to collections of fees owed or any other written agreements between Client and Company related to the . If such circumvention occurs, Company is entitled to fees and other costs that it would have earned had Client not circumvented Company plus any other costs or fees as mentioned in section 22; (11) Client agrees that from time to time Company may contact them via telephone, fax, email or other means to inform them of new Offers, analysis or developments that may be of interest to them; and (12) Company undertakes no obligation to guarantee Client's adherence to these representations and warranties. 9. Data Representations and Acknowledgements. Red Turtle Media represents and acknowledges that any data transferred to client is derived from partner websites wherein consumers have given permission to be contacted regarding any such advertisement set forth by partner marketing including but not limited to email marketing, cooperative registration pathways, and banner advertising. Red Turtle Media further acknowledges that client has the right to contact consumer by any means given the information supplied by consumer including, but not limited to email and phone. Red Turtle Media further warrants that client is hereby notified and accepts that any data transferred or sold to client has not been verified against the National Do Not Call List. Client hereby agrees to further verify all data transferred or sold by Red Turtle Media to client against the National Do Not Call List before any activity including but not limited to telephone marketing, email marketing or postal mail marketing begins. 10. Advertiser Specific Representations, Warranties, and Acknowledgements. If Client is a Advertiser, Client further represents, warrants, and acknowledges that: (1) it will not run any advertisements that contain on their face or link to sites that contain or promote sexually explicit or obscene materials, promote violence, hate or discrimination of any type based on race, sex, religion, nationality, disability, sexual orientation, and/or age, and/or constitute or promotes illegal activities, and/or is deemed by any reasonable person to be offensive in nature; (2) if Advertiser moves, alters, changes, modifies, augments, or diminishes the pixel code or any other method used for tracking the occurrence of the Specified Event within any creative without Company written approval, Advertiser is still responsible for any activities reported and will be charged based on an average of past performance, as determined by Company; (3) if it is found solely by Company that Advertiser has made any attempt after an Offer has been submitted and accepted by Publisher to alter or change the Offer in a matter not authorized by Company, then Advertiser will be charged on a $5.00 CPM basis; (4) if Advertiser does not explicitly target their Offer to particular Publishers, Advertiser’s ads may appear on sites not contemplated or expressly approved by Advertiser; and (5) if after Advertiser is notified that fraudulent activities may be occurring in its campaign, and Advertiser does not take any actions to stop the fraudulent activities from occurring, then Advertiser is responsible for all costs associated with such campaign. 11. Campaign Termination. Company reserves the right, in its sole and absolute discretion, to immediately remove any ads from or any area of the Client's site without advance notice. Company will provide written notice to Clients, within 48 hours, of any such advertising removal. Additionally, Company reserves the unilateral right to terminate any campaign at any time for any reason without prior notice. 12. Privacy Policy. The Parties agree to be bound by the privacy policy as set forth on Company's Web site at www.Red Turtle Media.com 13. Publicity. Company shall be permitted to identify Client as a customer, to use Client’s name in connection with proposals to prospective customers, to hyperlink from Company's web site to Client’s home page, to display Client’s logo on the Company web site, and to otherwise refer to Client in print or electronic form for marketing or reference purposes. Client agrees to serve as a reference in Company's proposals for contact by prospective Company customers and analysts. 14. Non-Disclosure. Clients acknowledge that all information, data, reports, and analyses received from the Company hereunder or as part of the services specified within this Agreement that is not public information, are proprietary to and owned by the Company and constitutes the basic stock in trade of the Company and its licensees. The information provided to the Clients is proprietary to and the property of the Company and is protected by copyright, trademark and/or trade secret. Clients agree not to reproduce, retransmit, disseminate, sell, distribute, publish, broadcast, circulate or commercially exploit the information in any manner without the express written consent of the Company. The non-disclosing Party also agrees not to use the information for any unlawful purpose. These non-disclosure obligations shall survive the renewal or termination of this Agreement. 15. Passwords. Passwords selected by Client grant restricted access to for the duration of this Agreement. Client further agrees and acknowledges that the passwords are to be held in the strictest of confidence and that any willful disclosure to or use for the benefit of any third party other than as specifically provided herein is strictly prohibited. Client will be responsible for all Offers entered through and under Client’s access number(s), password(s) and account name(s), and any Offers so received by Company will be deemed to have been received from Client or its authorized representative. All Offers shall be deemed made at the time received by Company and in the form received. From time to time during the term of this Agreement, Company may change passwords for security reasons, in its sole discretion; provided, however, that in the event Company changes passwords for any reason not associated with a violation of or discovery of non-compliance with the Agreement, Company shall give Client immediate written notification of such change if the change affects in any way Client's access to . 16. Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 14, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES THAT MAY RESULT FROM THE USE OF EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND, AS A CONDITION TO ACCESSING THE VALUABLE SERVICES OFFERED BY , CLIENT EXPRESSLY WAIVES ANY CLAIM IT MAY HAVE AGAINST COMPANY. THERE IS NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING . NO ACTION ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE DATE THE CAUSE OF ACTION FIRST AROSE, REGARDLESS OF ANY STATUTE PROSCRIBING A LONGER PERIOD IN WHICH TO BRING A CLAIM. IN NO EVENT SHALL COMPANY'S LIABILITY EXCEED THE FEES EARNED FROM CLIENTS ON THE PARTICULAR OFFER IN QUESTION. UNLESS OTHERWISE SET FORTH BY THE COMPANY IN A SEPARATE WRITTEN AGREEMENT, CLIENTS AGREE TO HOLD COMPANY LIABLE FOR PAYMENTS SOLELY TO THE EXTENT PROCEEDS HAVE CLEARED FROM THE ADVERTISER TO THE COMPANY FOR ADVERTISING PLACED IN ACCORDANCE WITH ADVERTISER’S SPECIFIC OFFER. SUBJECT TO SECTIONS 7,8, AND 9 FOR SUMS OWING BUT NOT PAID TO COMPANY, CLIENTS AGREE TO HOLD EACH OTHER SOLELY LIABLE. CLIENTS UNDERSTAND THAT ADVERTISER IS THE COMPANY’S DISCLOSED PRINCIPAL AND THE COMPANY, AS AGENT, HAS NO OBLIGATIONS HEREUNDER, EITHER JOINT OR SEVERAL, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR SEPARATE WRITTEN AGREEMENTS SIGNED BY ALL PARTIES. CLIENTS’ CREDIT IS ESTABLISHED ON A CLIENT BY CLIENT BASIS. ADVERTISERS ACCEPT SEQUENTIAL LIABILITY AND AUTHORIZATION TO HAVE THE COMPANY REPRESENT THE ADVERTISER. 17. Indemnity. Client shall indemnify, defend and hold Company harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) by third parties arising out of Client's improper use of , or arising out of a breach or violation of this Agreement by Client. Company shall indemnify and hold Client harmless from and against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and expenses) resulting from or arising out of any improper use of by Company, or arising out of a breach or violation of this Agreement by Company. In no event shall Company's liability hereunder exceed the fees earned from Client. 18. Assignment, Notices and Governing Law. Company may assign this Agreement to a controlled subsidiary or business successor of Company. Client may not assign this Agreement without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. This Agreement shall be construed and governed by the law (including choice of law doctrines) of the state of California, regardless of whether Client resides or transacts business with Company in California or elsewhere. Client expressly consents to the exclusive venue and personal jurisdiction of the state and federal courts located in Los Angeles County, California for any actions arising from or relating to this Agreement. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. 19. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 20. Modifications. Company reserves the right to change the Terms and Conditions of use, or policies regarding the use of at any time. Company shall notify Clients, via email, at least five (5) business days before such changes are implemented. Continued use of after any such modification and notification shall constitute Client's consent to such modifications. 21. Force Majeure. Neither party to this Agreement shall be liable to the other by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in Internet services to an area where Company servers are located or co-located, or any other cause which is beyond the reasonable control of such party. 22. Attorneys' Fees. In any action or proceeding arising out of this Agreement, the prevailing party shall be entitled to an award of its reasonable costs and expenses, including attorney' fees except in collection matters, whereby Company will never be liable for any attorney’s fees. 23. Entire Agreement. This Agreement contains the sole and entire agreement and understanding between the parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by two authorized officers of each party. 24. Notice. All notices shall be sent to the addresses submitted by Client to the when signing up for the service by certified mail, fax, email or courier. 25. Non-compete. Party agrees that during this agreement, and for a period of 6 months after this agreement has expired, Advertiser will not willfully enter into any arrangement for marketing services with Red Turtle Media, inc.’s clients that have advertised Party’s products and or services during this agreement unless otherwise agreed to in writing by Red Turtle Media, INC. 26 Exclusivity. Party agrees that Red Turtle Media, INC. has exclusive rights to market Party’s products and or services Online. This includes, but is not limited to, e-mail, Search Engine Optimization, Cooperative Registration, Site Banner Advertising, Survey Sponsorship, Key Word Placement, Interstitial Advertising, and Network Optimization. Party further agrees to give Red Turtle Media the highest cost per acquisition for its products and services (Favored Nation Pricing) as it pertains to Online Marketing.
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