The Commission Wizard Premium Network Publisher Agreement

This Network Publisher Agreement (this “Agreement”) specifies the terms and Agreement that govern your participation as a "Publisher" and member of the Commission Wizard Publisher Program (the "Publisher Program"), an online, performance-based marketing network sponsored by Commission Wizard. As used herein, the term "Publisher" shall refer to a web site, e-mail or search engine marketer or other distributor of offers ("Offers") and the terms "you" and "your(s)" shall refer to the corporate or individual entity owning, either directly or indirectly, the referring URL of each Publisher.

From time to time, Commission Wizard may amend, supplement or replace entirely this Agreement by

(i) Posting an updated Agreement or supplements, amendments or exhibits thereto (collectively the "Updated Agreement") on the Commission Wizard web site and

(ii) If, in the reasonable judgment of Commission Wizard, the Updated Agreement is material, notifying each affected party via e-mail at the address specified on the Account Information page of the Commission Wizard web site. Thereafter, the Updated Agreement shall be deemed effective five (5) business days after the later of such posting or e-mail transmission (the "Effective Date") AND you will be conclusively deemed to have consented to, and agreed to be bound by, the Updated Agreement UNLESS your termination notice is received by us prior to the Effective Date; provided, that no Updated Condition will affect your right to receive any Commissions earned by you prior to the Effective Date.

If this Agreement is being executed in connection with an insertion order ("IO"), the applicable insertion order (including the Terms And Conditions attached thereto) is incorporated herein by reference, and the terms of the Agreement are hereby incorporated into the applicable insertion order by reference. In the event of any inconsistency between the applicable insertion order and this Agreement, the applicable insertion order shall control. NO TERM OR CONDITION PLACED BY PUBLISHER IN AN APPLICABLE INSERTION ORDER SHALL BE BINDING UPON COMMISSION WIZARD, UNLESS EXPRESSLY AGREED TO IN WRITING BY COMMISSION WIZARD

I. Application. You may apply to join the Publisher Program by completing the form insertions appearing on the account application page of the Commission Wizard web site and then clicking the "Submit" button. By clicking on the "Submit" button you acknowledge that you have read, accepted and agreed to be bound by this Agreement, as it may be modified from time to time by any Updated Agreement.

1.1 Pre-Condition of Membership. As a condition to your membership, you represent and warrant, and covenant on an ongoing basis, that your web site:

(i) Does not violate any law or regulation governing (a) false or deceptive advertising, (b) sweepstakes or (c) gambling;

(ii) Does not contain any trade disparagement or libelous, defamatory or infringing content; and

(iii) Does not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing computer program);

(iv) Is written in English and contains only English language content;

(v) Cannot offer incentives to users to click-on ads or complete offers; incentives include but are not limited to awarding them cash, points, prizes, contest entries;

(vi) Does not place our advertisements into your framed environment.

II. Content Ineligible Websites and Guidelines. If Commission Wizard, in the exercise of reasonable discretion, determines your web site to be ineligible, all commissions, whether earned or unearned, shall be forfeited. The content of the website and/or newsletter shall not contain the following:

(i) Explicit, vulgar or obscene language;

(ii) Posting or referencing of sexually explicit images or other offensive content;

(iii) Infringe on any personal, intellectual property or copyrights:

(iv) Gratuitous violence or profanity;

(v) Material that defames, abuses, or threatens physical harm to others or to you;

(vi) Promotion of illegal substances or activities;

(vii) Software Pirating (e.g., Warez, Hotline);

(vii) Hacking, Phreaking or any spoofing, redirecting, or trafficking websites in an effort to gain traffic.

2.I Advertising Guidelines. Publisher must adhere to the following criteria: (i) Co-Reg advertising is prohibited, which includes campaigns that generate leads using a "registration path" process. "No thanks" or "Skip" links are insufficient disclaimers for Registration Path sites; (ii) Paid search is prohibited unless approved by Commission Wizard in writing; (iii) Downloadable software advertising is prohibited; (iv) Incentives are prohibited, which includes but is not limited to compensation, rewards points, lotteries, contests, sweepstakes, give-aways, prizes, gifts or cash to entice a visitor to complete the lead registration form; (v) Objectionable material is prohibited. You will only run approved creative and text in your advertising of the lead registration form; (vi) You must not alter or modify creative without the prior written consent of Commission Wizard; (vii) You must not alter the user's experience. By way of illustration and not limitation, you shall not insert a page between the link in your email to users and advertiser's landing page.

2.2 Creative Guidelines. If Commission Wizard grants you permission to build creative materials, all such materials must be approved by Commission Wizard prior to deployment. Furthermore, such materials must adhere to the following guidelines:

2.2.(i) Language to avoid. Creatives must not include any references to the following (including similar language) or any related content:

·        “Free money”

·        “Guaranteed financing”

·        “A loan you do not need to repay”

·        “Financing is available” – Instead it needs to state that financing may be available

·        “Employment guaranteed”

·        “Pell Grants up to $5500”

·        “Get your grants” & “grant application”

·        “You have been approved/pre-approved for…”

·        “BS in Religion” (or any subject religion related) – The “BS” could be perceived as profanity

2.2.(ii) Imagery to avoid (including similar items):

·        Imply promises that cannot be fulfilled by the website to which the marketing is directed

·        Anything in reference to The President, Obama, or a political figure

·        Nothing that could create the idea that there is endorsement from the Government (government seals, symbols, buildings, or agencies)

·        Creative and/or copy with incentives for material items (see below)

·        Email from lines and subject lines that do not accurately reflect the content of the message

·        Anything sending the message that all schools can/will provide aid. Do not indicate financing is available, it may be available but it is up to the school based on the student profile and government qualifications that determine financing.

·        Use fake urgency or deadlines

·        Imply job opening opportunity such as ‘teacher training opening’ misleading the user to think they are viewing a job listing.

·        Placement statistics without naming the source of the statistics

·        Use of student loans to pay rent, mortgages, etc.

·        Any terms that directly or indirectly imply that the consumer will not have to finance their education, examples include ‘get money/loans you do not have to pay back’ & ‘free money’

·        Checks with a person’s named pre-filled, or an amount pre-filled

·        A diploma with a school’s logo and a user’s name on it

2.2.(iii) Guidelines regarding incentives:

·        Acceptable incentives are anything that provides information on degrees or education or helps users find out more about the benefits of an online degree, the steps it takes to get a degree, etc.

·        Unacceptable incentives are any offers of electronics or other goods that do not further a user’s knowledge of education or degrees.

·        Bottom line: Any offers for information or educational material are acceptable; otherwise if it is an offer for any other material item it is unacceptable.

III. Membership Approval. All websites, newsletters, companies, or individuals need official approval from Commission Wizard before they can become a member of the Publisher Program. Only websites and newsletters that have been reviewed and approved are permitted to use the Offers. Commission Wizard reserves the right to withhold or refuse approval on any website, newsletter, company, or individual for any reason, whatsoever.

IV. User Name and Password. Upon submission of your application and upon approval of your membership, you will be issued a user name and a password. Your use of these identifiers is limited only to you, and may not, under any circumstances, be distributed to any other person, including without limitation any Sub-Publisher (as defined below). You will be held responsible for all unauthorized use of your User Name and/or Password.

V. Offers. You may use your user name and password to access the Commission Wizard Offer Library (the "Offer Library"). The Offer Library contains Offers along with associated commission schedules and restrictions or Agreement specific to each Offer (including, but not limited to, restrictions on incentives that may be associated with any Offer) that may be downloaded by you only for the purposes described herein.

5.1 Integrity of Offers. You may not add, subtract or in any way alter or edit any Offer (including, for this purpose, any machine-readable code which may be a part of any Offer), nor may you make any use whatsoever of any Offer other than for the purposes of, and as contemplated by this Agreement. Offers may only be published in accordance with the terms and restrictions associated therewith. If you are approved to run PREMIER Bankcard advertisements, you agree to abide by the PREMIER Bankcard program standards at: http://premiercentral.com/Guidelines.aspx

5.2 Offer Fraud. If you are found to have fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Commission Wizard in its reasonable business judgment, such as pre-population of forms), you agree that the entire commission for all programs will be forfeited.

 

5.3 Identifying Sub Affiliate id's in 'c1' is Required. We require all affiliates to populate their sub affiliate id values or list name/id into our 'c1' variable.  This will allow us to pinpoint a sub affiliate that drove a batch of bad traffic and easily isolate the source allowing us to pause future traffic. If there are no 'c1' values and we detect fraud or bad data, you risk not being paid for all leads generated through your affiliate id. 

 

5.4 Non Email Traffic. The vast majority of our campaigns will accept only email traffic unless otherwise stated in the IO. This includes call center leads which are specifically forbidden unless otherwise expressly permitted in the IO.

 

5.5 Proxies are Forbidden. Proxy servers are often used to mask traffic fraud. If the number of leads generated through a proxy server is determined by us to be significantly higher than our norm, we will consider all leads generated through that proxy server to be fraudulent. For a definition of proxy, see http://en.wikipedia.org/wiki/Proxy_server

 

5.6 Iframes are Forbidden. You may not mask our URL in the user's web browser through an iframe, proxy or similar mechanism or device.

 

5.7 Suppressing Referring Source is Forbidden. Although the referring source may not get passed at times due to a technical error, it must exist for at least two thirds of the clicks and leads you or your affiliates generate.  The referring source of the original click cannot be suppressed in any way. We will assume that traffic with suppressed referring sources is not email traffic and if the IO states "email only", all leads generated by the sub affiliate (or if the sub affiliate value is not populated, the entire affiliate) in question will not be paid for.

5.8 Incentivized Traffic is Forbidden. The use of incentivized websites (including registration paths, give-aways, etc.) or incentivizing visitors through call centers or any other online or offline technique where the user is compensated to generate leads is prohibited for our campaigns unless otherwise stated in the IO.

5. 9 Form Filling is Forbidden. Only consumers are allowed to fill out leads via the landing page. Employees and contractors of our affiliates are prohibited from doing so. Also, any type of proxy or form filling service is prohibited. If you need a test lead placed, please contact your Commission Wizard account manager.

 

5.10 Unapproved Creative Assets are Forbidden. The use of unapproved subject lines, from lines, or creatives is strictly forbidden. Any creative assets not obtained from our network must go through an approval process prior to deployment

.

5.11 Seeding Compliance Team is Highly Recommended. Please add  emailcompliance@secureping.com to your email list for all email campaigns that run through our network. If your affiliates are mailing our campaign, we ask that you have them seed this address as well. This will allow us to reference any mailings that have been sent in the event of a dispute. In the event of a breach of our terms and your email campaigns or those of your affiliates are not seeded, you and your affiliate partners risk forfeiting all or a portion of your commission.

 

5.12 Re-brokering our Campaign. You may not re-broker our campaign unless explicitly stated in the IO. If we find that the campaign has been re-brokered in violation of an IO, you risk forfeiting your entire commission.

 

5. 13 Scrubs are Forbidden. In the event that the IO permits re-brokering of the campaign and it is re-brokered, lead scrubs or any other mechanism used to inflate the campaign price point are forbidden.

VI. Limited License. Commission Wizard hereby grants to you a limited, non-exclusive, non-transferable, revocable, worldwide right to

1. (i) Download one or more Offers for posting on your web site and

(ii) Use, in connection with publishing such Offers, all copyrighted, trade or service marked or other protected intellectual property contained therein for the purposes described in this Agreement.

VII. Rules Governing Sub-Publishing. A member of the Publisher Program may solicit non-member Publishers to distribute Offers (collectively "Sub-Publishers"), provided that each Sub-Publisher agrees in writing to be bound by and subject to the restrictions and conditions set forth in this Agreement and Commission Wizard approves such Sub-Publishers in writing.

7.2 Relationship among Publisher, Sub-Publisher(s) and Commission Wizard. Each Sub-Publisher shall, for purposes of this Agreement, be deemed to be an agent of the Publisher Program member, with the Publisher Program member responsible in all respects for the activities of its Sub-Publishers. Any breach by your Sub-Publishers of this Agreement shall be deemed a breach by you. It is understood and agreed between you and Commission Wizard that

(i) Commission Wizard is not and shall not be party to any Agreement between you and any Sub-Publisher,

(ii) You are not authorized to make any commitments on behalf of Commission Wizard to any Sub-Publisher, including but not limited to any payment or other commitment by Commission Wizard, and

(iii) No license other than the license set forth in this Agreement may be extended by you to any Sub-Publisher.

7.3 No Third-Party Beneficiary Status. Nothing in Commission Wizard’s permission to engage Sub-Publishers may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any Agreement between Commission Wizard and you, including without limitation this Agreement.

VIII. Special Rules Governing Click-Through Campaigns. From time to time, a Client may request a campaign wherein payment is based not on customer conversion but on the number of recipients clicking on an Offer (a "click-through rate" or "CTR"). For any CTR deal, you will not employ any device that has the effect of inflating the click-through rate, including but not limited to automatic page-spawning, automatic redirects, "robots" or incentives offered to any recipient.

Commission Wizard reserves the right to audit any web site traffic at any time and for any reason, or no reason at all. Should Commission Wizard determine, in the exercise of its reasonable business judgment, that you have employed any device to artificially inflate the click-through rate,

(i) Your membership in the Publisher Program will be immediately terminated,

(ii) Any unpaid Commissions attributable to the subject CTR deal will be immediately voided, whether or not earned and

(iii) Upon demand, you will return to Commission Wizard immediately any Commissions attributable to the subject CTR deal that had been previously paid.

IX. Publisher Responsibilities Governing Email Advertisement. Publisher agrees and warrants that it will not send, transmit and/or distribute any Commission Wizard Offer via e-mail unless such e-mail is not deemed "SPAM e-mail" (as defined below). An e-mail shall be deemed to be "SPAM e-mail" if such e-mail satisfies any one or more of the following criteria:

(i) The e-mail fails to identify the Publisher as the sender of the e-mail;

(ii) The e-mail contains a falsified sender domain name or non-responsive IP address;

(iii) The e-mail contains or includes a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;

(iv) The e-mail fails to notify the recipient that he or she may unsubscribe or "opt out" from further e-mail solicitations from the Distribution Partner/Publisher; and

(v) The e-mail fails to contain or include a valid return e-mail address or other internet based mechanism whereby recipients can unsubscribe or "opt out" from receiving further e-mail solicitations from the Publisher. Such return e-mail address or other internet based mechanism shall remain valid for no less than thirty (30) days from the date of transmission of the e-mail and the Distribution Partner/Publisher shall implement all requests to unsubscribe or "opt out" within ten (10) days of receipt of such request;

(vi) The e-mail fails to contain or include a valid physical postal address for the Publisher (which shall not include a P.O. Box address);

(vii) The e-mail is sent to an individual who was not provided with an accurate, clear and conspicuous description of the marketing purposes for which his or her e-mail address may be used at the time such e-mail address was provided by the individual;

(viii) The e-mail fails to provide clear and conspicuous notice that the message is an advertisement or solicitation;

(ix) The e-mail is sent for the purpose (but not necessarily the sole purpose) of harvesting the e-mail addresses in order to send future unsolicited e-mails; or

(x) The e-mail contains nudity, profanity, sexually oriented materials, hate speech, or other obscene content.

9.1 CAN-SPAM ACT Publisher further agrees and warrants that it will comply with all local, state and federal laws (including, but not limited to, the "CAN-SPAM" Act, 47 U.S.C. Sections 7701-7713 and the related Federal Trade Commission regulations (47 CFR Part 316), regarding the sending of e-mails.

9.2 Opt-in Information Commission Wizard will notify Publisher of any complaint regarding their e-mail practices or any alleged violation of the above warranties. Within forty-eight (48) hours of notification, Publisher must respond to Commission Wizard and provide source information as to any questionable e-mails including, but not limited to, the time, date, IP address and content of the questionable e-mails along with the applicable "opt-in" information (e.g. time, date and IP address of opt-in source) of the recipient. If the Publisher fails to provide source information satisfactory to Commission Wizard to demonstrate that the Publisher did not send SPAM e-mail or otherwise breach the above warranties, then Commission Wizard has the right to immediately suspend payment to and further performance of any services by the Publisher.

X. Compensation. Commission Wizard will pay you commissions ("Commissions") in the amounts, and at the times, set forth in the commission schedule associated with each Offer and posted in Commission Wizard’s reporting system. Commission Wizard shall only pay Publishers for Commissions "earned" (as set forth below). Regardless of the timing of any payment made by Commission Wizard to Publisher hereunder, Commission Wizard shall be authorized to recoup any commission paid to Publisher that specifically relates to

(i) Leads/sales returned or rejected by client within ninety days from the date of generation;

(ii) Overpayments to Publishers, duplicate entries or other clear bona-fide errors.

10.1. When Commissions are Earned. Commissions will not be "earned" until Commission Wizard receives payment from the its client (the "Client"). Notwithstanding the foregoing, Commission Wizard may elect to advance to you Commissions prior to those commissions having been earned. You acknowledge and agree that your receipt of commission payments prior to those payments having been earned is conditional and subject to Commission Wizard’s right to demand return of unearned Commissions for any reason or for no reason at all.

10.2. Commission Wizard’s Records to Control. Commission Wizard maintains records of all traffic passing over the Commission Wizard Program. Commission Wizard’s records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.

10.3. Minimum Commission Requirement For Regular Payment. Commission Wizard shall not be obligated to make any payment of Commissions to you unless the aggregate amount of earned Commissions equal or exceed fifty dollars ($50.00). Any earned but unpaid Commissions shall carry over to the next regularly scheduled payment period.

10.4. Suspension of Payment. If Commission Wizard determines, in the exercise of its reasonable business judgment, that you are in breach of any material term of this Agreement, in addition to any other remedies provided for in this Agreement or by law, Commission Wizard will

(i) Use commercially reasonable best efforts to notify you promptly of such breach and

(ii) Suspend any payment of any earned but unpaid Commissions until such breach has been cured.

10.5. Reporting and Payment . Payment from Commission Wizard shall not be due until payment from Client is received by Commission Wizard. Commission Wizard shall pay you on or before the later to occur of (i) seven (7) days after Commission Wizard’s receipt of payment from Client or (ii) 30 days after end of month in which the campaign is run. Client is ultimately liable for payment, and Commission Wizard, as a disclosed broker/agent, shall not be liable for payment unless and until payment is made by Client. All CPC or CPA campaigns will be billed off Commission Wizard's click or lead counts respectively, as reported at http://www.CommissionWizard.com with login information provided by Commission Wizard.

10.6 Rules governing Cost Per Click (CPC) campaigns. For Publishers running any of our CPC campaigns, below are the reasons why Publishers may see a discrepancy in the click count between their system and ours.  The following will also explain potential discrepancies between our click and conversion counts.

(i) IP of Clicker is Blocked. There are a number of bots out there that are clicking on seeded emails for various purposes.  For instance, Lashback and Email Data Source are used for competitive analysis and compliance.  If we cannot identify the source through an IP lookup (i.e. http://private.dnsstuff.com/tools/ipall.ch?ip=207.206.148.78), then we look at IP's that generate a significant number of clicks and $0 in revenue (across all affiliates historically) to determine the validity of the click.  If we were to count these clicks, the EPC values would be skewed in our reporting and on the advertiser side.  Therefore, we have blocked those clicks before the redirect occurs.  We can consolidate a list of IP addresses that are blocked and send them to you as often as you request (the list will not include foreign clickers).

(ii) Duplicate Clicks From Same IP. We only count one click per cookie and one click per IP in a 24 hour period (with the exception of ISP proxies like AOL).  We also have more sophisticated ways of tracking clicks from the same computer.  This could cause a discrepancy between our click count and the affiliate's tracking.  This may also cause a discrepancy between our click count and our conversion count.

(iii) IP of Clicker is Foreign. Our PPC product is only for US based traffic, so we do not count foreign traffic as a valid click in our CPC system.

(iv) Cookies are Disabled. We have found that the conversion % of clicks without cookies is extremely small and that the vast majority of clicks without cookies are robot clickers.   Therefore, we have created a temporary page (i.e.http://www.openpaths.com/click/nocookie.cgi?&sid=742&pub=400001) to inform the user to enable cookies.  Once they enable and reclick the URL, the click and any subsequent conversion will be recorded in our system.

(v) JavaScript is Not Enabled. We have found that the conversion % of clicks without JavaScript is extremely small and that the vast majority of clicks without JavaScript are robot clickers.  Therefore, we have created an intermediary page.  Once they interact with our intermediary page, the conversion will take place in our system.

(vi) Other factors. In addition to any other factor determined by Commission Wizard in its sole discretion, too many clicks from the same IP range, ISP or other environment factors may trigger an audit of your traffic.

XI. Confidentiality. All information relating to your participation in the Publisher Program, including but not limited to your unique user name and password, the identities of any Commission Wizard Client, Commission Wizard’s commission rates and pricing strategies, any calculation of amounts paid to you hereunder and the number of sales, leads or customers acquired by you for any Client, shall be considered proprietary information of Commission Wizard, shall be held in strictest confidence by you and will not, without the prior written consent of Commission Wizard, be disclosed by you to any other person, in any manner whatsoever, in whole or in part, and will not be used by you directly or indirectly for any purpose other than confirming the correctness of the commission calculation.

11.1. Ownership and Proprietary Nature of Data and Reports. All data, including but not limited to campaign results, user data, statistical information, traffic analysis or other data produced or provided by you, shall be deemed to be the property of Commission Wizard.

XII. Covenants and Agreements. Commission Wizard covenants and agrees to use its commercially reasonable best efforts:

(i) To provide, monitor and maintain the necessary technology applications required to link you to the Client Web sites;

(ii) To provide you with Offers in appropriate format; and

(iii) To provide changes to Offers or cancellations as quickly as is commercially feasible in advance of requested change date or time.

12.1. Non-Competition. Publisher recognizes that Commission Wizard has proprietary relationships with the Advertisers. Publisher agrees not to circumvent Commission Wizard's relationship with Advertisers, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Advertiser for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either party’s services herein during the term of any IO and for the six (6) month period following termination or expiration of the last IO then in effect. Notwithstanding the foregoing, to the extent that Publisher can show that any such Advertiser already obtained or, where applicable, provided, such services from/to Publisher prior to the date of the first IO, then Publisher shall not be prohibited from continuing such relationship, provided that in doing so Publisher does not circumvent Commission Wizard's relationship with the Advertiser or attempt to induce the Advertiser to reduce the amount of business it conducts with Commission Wizard. Without limiting any other right or remedy of Commission Wizard under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if Publisher should violate this Section 12.1, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher agrees to forfeit all Publisher Fee earned but not yet paid by Commission Wizard and to return to Commission Wizard all Publisher Fees received by Publisher from Commission Wizard under this Agreement.

XIII. Termination. This Agreement may be terminated by either of us at any time and for any reason or for no reason at all. Termination may be effected by delivery to the non-terminating party of appropriate notice, delivered via e-mail, fax or other means of public communication, and will be effective on the earlier of

(i) Receipt by the non-terminating party or

(ii) Three (3) business days following the sending of the termination notice.

13.1. Responsibilities Following Termination. Immediately upon termination, you will

(i) Remove any and all Offers from any web site owned or operated by you and/or

(ii) Suspend any e-mail campaign that has not already been sent. As a precondition to receiving any earned but unpaid compensation you will certify to us, via e-mail, that this condition has been met within two (2) business days following termination.

XIV. Liability Policies.

14.1. Warranties. NO WARRANTIES ARE MADE BY EITHER OF US AS TO THE SERVICES OR TECHNOLOGY DESCRIBED IN THIS AGREEMENT AND EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AS IT RELATES TO THE TECHNOLOGY AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.

14.2. Limitation on Damages. Neither of us shall be liable to the other for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses (including lost or imputed profits), costs or expenses of any kind arising out of this Agreement or your participation in or termination from the Publisher Program, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Except for liabilities resulting from willful misconduct or recklessness, any liability of Commission Wizard shall not exceed the total amount of the Commissions actually paid by Commission Wizard to you with respect to your participation in the Publisher Program.

14.3. Indemnification. Each party hereto agrees to indemnify and hold harmless the other party and each of its agents, officers, directors and employees against all liability to third parties resulting from the acts, or failure to act, of such indemnifying party, or any acts of its customers or users.

14.3.1. You agree to indemnify Commission Wizard, without limitation, for any costs, charges, fines, expenses, settlements or other liabilities resulting from any violation, intentional or otherwise, by you or any of your Sub-Publishers of the undertakings, responsibilities, covenants, representations and warranties contained in this Agreement.

XV. Dispute Resolution. In the event of disputes between us arising from or concerning in any manner the subject matter of this Agreement or your participation in or termination from the Publisher Program, we shall first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties shall refer the dispute(s) to a mutually acceptable mediator for hearing in New York, New York. Thereafter, if mediation cannot resolve the dispute(s), we shall submit the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The arbitration shall be held in New York, New York, and the decision reached by such arbitrator shall be entered as a judgment in any court of competent jurisdiction. The prevailing party in any dispute between the parties arising from this Agreement or other matter shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with such dispute.

XVI. Miscellaneous.

16.1. Transferability. Your right to participate in the Publisher Program is non-transferable, without the prior written consent of Commission Wizard. Commission Wizard may transfer its rights to the Publisher Program without restriction.

16.2. Public Statements. Any press release or other public announcement by you regarding your participation in the Publisher Program shall require the prior approval of Commission Wizard.

16.3. Force Majeure. Neither of us shall be deemed in default of this Agreement to the extent that performance of our obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

16.4. Relationship. The relationship between us established by this Agreement is that of non-exclusive independent contractors. Neither of us may represent to any third party, or otherwise be deemed to be, an employee, agent, partner or joint venturer with respect to the other.

16.5. Notices. Unless otherwise specified herein, any notice, communication or statement relating to this Agreement shall be in writing and deemed effective:

(i) Upon delivery when delivered in person;

(ii) Upon transmission when delivered by verified facsimile transmission; or

(iii) When delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally recognized overnight courier service to Commission Wizard at 18124 Wedge Parkway #208, Reno, NV 89511 or to you at the address indicated in your application to join the Publisher Program (as updated by you).

16.6. Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.

16.7. Corporate Authority; Non-Breach. Each party represents and warrants to the other that:

(i) Such party has all necessary right, power and authority to agree to this Agreement and to perform its obligations hereunder; and

(ii) Nothing contained in these Terms & Agreement or required by such party's performance hereunder will place such party in breach of any other contract or Agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and

(iii) The performance of either party’s obligations under this Agreement shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.

16.8. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined to be invalid, illegal, or otherwise unenforceable as part of a final non-appealable ruling, government action or binding arbitration, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.

16.9 Update of User Information. It is your responsibility to advise us immediately of any change in any of the information furnished by you as part of your application. The individual submitting this application certifies that she/he is authorized to act on behalf of Publisher and that she/he, on behalf of Publisher, has read and accepted the terms, conditions and disclosures associated with this Agreement.

Updated 08/25/10