Spigot

These terms and conditions (the "Agreement') , together with the pay per acquisition rates and schedules, any amendments to those schedules and all additional guidelines and rules included in the Program Site or by email with respect to a Campaign (as defined below), which are incorporated by reference herein, govern your participation as a member (the "Affiliate") of the Eightpoint Interactive, Inc. (“Eightpoint Interactive”) Affiliate Network (the "Program"). By signing up for the Program, the Affiliate covenants and agrees to be bound by this Agreement, and the schedules attached, as may be amended by Eightpoint Interactive from time to time, as provided for herein.

A. DEFINITIONS

1. "Campaign" means a promotional offer published by Eightpoint Interactive on the Program Site, in an electronic mail or both, setting out an advertising offer and containing such additional terms and conditions as Eightpoint Interactive, in its discretion, considers necessary from time to time.
2. "Eightpoint Interactive Policies" means: (a) the Eightpoint Interactive Electronic Mail Policy, (b) the Eightpoint Interactive Downloadable Software Policy, and (c) the Eightpoint Interactive Acceptable Use Policy as may be amended or replaced, from time to time, by Eightpoint Interactive, as provided for herein, and published on the Program Site.
3. "Program Site" means the website for the Program operated by Eightpoint Interactive and situated at https://affiliates.spigot.com/ or any site designated for this purpose by Eightpoint Interactive.
4. "Sub-Affiliate" means an independent third party contracted by the Affiliate.

B. THE PROGRAM

1. Eightpoint Interactive will permit the Affiliate to participate in the Program, subject to compliance with the terms and conditions in this Agreement and in any policies or additional terms and conditions established by Eightpoint Interactive, from time to time, and incorporated by reference in this Agreement.
2. The Affiliate will be issued a unique username and password to access the Program Site, neither of which may be used by any person other than the Affiliate. Affiliate shall be solely responsible for ensuring the confidentiality of its username and password and for any actions undertaken with respect to the Program arising out of the use of such username and password.
3. The Affiliate may engage Sub-Affiliates to distribute Campaigns in accordance with the Program, provided that: (a) the Affiliate has written approval from an Eightpoint Interactive Representative to contract Sub-Affiliates; (b) a verifiable name, address and telephone number for each Sub-Affiliate is delivered to Eightpoint Interactive immediately upon request; (c) the proposed Sub-Affiliate agrees, in form satisfactory to Eightpoint Interactive, to abide by paragraph B.6, B.8, B.9, B.10, B.11, B.12, C.3, C.4, Sections E, F, G, H, I, J and K of this Agreement, the Eightpoint Interactive Policies and any additional terms and conditions (collectively, the "Sub-Affiliate Provisions"), as amended from time to time by Eightpoint Interactive in its sole discretion, along with such other terms and provisions of this Agreement as are necessary and/or appropriate to ensure that Affiliate, either directly or through its Sub-Affiliates, maintains compliance with the terms of this Agreement; and (d) at no time will the Affiliate engage a Sub-Affiliate who, in the opinion of Eightpoint Interactive is likely to bring the reputation or standing of Eightpoint Interactive into disrepute or is otherwise unsuitable. (e) at no time will the Affiliate allow an approved Sub-Affiliate to have further sub-Sub-Affiliates unless otherwise agreed to in writing by Eightpoint Interactive.
4. Any breach by a Sub-Affiliate of the Sub-Affiliate Provisions will be deemed to be a breach of this Agreement by the Affiliate.
5. It is expressly agreed that the parties intend by this Agreement to establish a relationship between Eightpoint Interactive and the Affiliate, but that it is not the intention of either party to undertake a joint venture or to make the Affiliate (or any Sub-Affiliate) in any sense an agent, employee, or partner of Eightpoint Interactive. The parties expressly agree that they are independent contractors, and that this Agreement does not in any way create a partnership, nor have the parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever.
6. It is further agreed that the Affiliate has no authority to create or assume in Eightpoint Interactive's name or on its behalf any obligation, express or implied, or to act or purport to act as its agent or representative for any purpose whatsoever, and the Affiliate shall not hold itself out as having any such authority.
7. Eightpoint Interactive may, in its sole discretion, confirm or otherwise verify or check, the truth and accuracy of any registration information provided by Affiliate and/or any of its Sub-Affiliates. If at any time Eightpoint Interactive, in its sole judgment and discretion, determines such registration information to be misleading, inaccurate or untruthful, Eightpoint Interactive may restrict, deny or terminate Affiliate's account, Affiliate's access and use of, and/or any benefits derived from Affiliate's participation in the Program; Eightpoint Interactive may also withhold payment of any commissions and/or other fees that may be or become due or payable to Affiliate.
8. Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate website and for all materials that appear on the Affiliate website. Such responsibilities include, but are not limited to, the technical operation of the Affiliate website and all related equipment; creating and posting product reviews, descriptions, and references on the Affiliate website and linking those descriptions to the Program Site; the accuracy and propriety of materials posted on the Affiliate website; ensuring that materials posted on the Affiliate website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. Eightpoint Interactive disclaims all liability and responsibility for such matters and Affiliate shall indemnify, defend and hold harmless Eightpoint Interactive from and against any and all claims, actions, proceedings, costs, claims, damages and/or losses arising therefrom.
9. Other than as provided in this Section B, Affiliate may not sublease, rent, lease, sell, resell, outsource or service any Offer, and any attempt to do so shall be null and void.
10. Eightpoint Interactive's Policies, specifications, and/or recommendations with respect to Affiliate websites, email distribution lists and/or marketing channels used by Affiliate should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, email distribution lists, and/or marketing channels comply with applicable law. Eightpoint Interactive does not represent or warrant that such Eightpoint Interactive Policies, specifications, and/or recommendations are legally compliant or appropriate. Eightpoint Interactive assumes no obligation and hereby disclaims any liability for Affiliate's use of and/or reliance upon any such Eightpoint Interactive Policies, specifications, and/or recommendations.
11. Eightpoint Interactive operates the Program and Eightpoint Interactive is not responsible or liable for the acts, omissions, agreements or promises of or by any Affiliate using the Eightpoint Interactive Program to enter into any arrangement or otherwise work with any other person or entity, including without limitation, any Sub-Affiliate.
12. The Affiliate shall not acquire any ownership rights to the Program, Campaigns and/or Program Site. The availability of the Program, Campaigns and Program Site does not constitute a waiver of any rights related thereto. No part of the Program or Program Site may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. The Affiliate may not remove any proprietary notices, copyrights, trademarks, or labels contained on or within the Program or Program Site or any graphical representation thereof. The Affiliate may not use, copy, emulate, clone, rent, lease, sub-license, distribute, sell, modify, decompile, disassemble, reverse engineer or otherwise transfer rights to access and use the Program or Program Site content or any portion thereof to any third party. Eightpoint Interactive reserves any rights not explicitly granted in this Agreement.

C. CAMPAIGNS

1. Campaigns will be posted to the Program Site.
2. Eightpoint Interactive grants the Affiliate a limited, non-exclusive, non-transferable, revocable right to download Campaigns from the Program Site and to publish the same, which must be done in accordance with this Agreement, the Eightpoint Interactive Policies, as amended from time to time, and the additional terms and conditions affixed to each of the said Campaigns.
3. The Affiliate agrees not to modify, alter, misrepresent or embellish the Campaign or any part of the Campaign including without limitation any text or images provided by or on behalf of Eightpoint Interactive in any way, directly or indirectly, without the express prior written consent of Eightpoint Interactive.
4. It is the Affiliate's responsibility to check the Program Site often and to ensure the Campaign or any part of the Campaign that the Affiliate publishes on the Affiliate's websites and in electronic mail correspondence matches what is posted on the Program Site, even if the Campaign or any part of the Campaign has been modified in the Program Site since the Affiliate initially downloaded the tracking link.

D. COMPENSATION

1. Eightpoint Interactive will pay to the Affiliate a commission (the "Commission"), calculated in accordance with the payment terms outlined in each Campaign posted by Eightpoint Interactive on the Program Site.
2. Eightpoint Interactivet may, in its sole discretion and from time to time, elect to advance to the Affiliate part or all of the Commissions, but in no event will Eightpoint Interactive be obligated to do so.
3. The Affiliate acknowledges and agrees that payment of Commissions may be delayed where the Affiliate has not provided Eightpoint Interactive with current particulars in accordance with paragraph F.2 of this Agreement and that in no case will Eightpoint Interactive be liable to the Affiliate for any penalties, loss, costs or expenses directly or indirectly incurred by the Affiliate as the result of such delay.
4. In no circumstance will Eightpoint Interactive be obligated to pay by bank transfer/wire Commissions to an Affiliate unless and until the aggregate amount of the Commissions due and payable to that Affiliate exceeds Five Hundred ($500.00) US Dollars, or such greater amount established by Eightpoint Interactive, from time to time. Other forms of commission payment are available and up to discussion between Eightpoint Interactive and Affiliate.
5. Commissions due and payable by Eightpoint Interactive to an Affiliate will not accrue interest.
6. Payments to an Affiliate in accordance with this Section will be based upon the records kept by Eightpoint Interactive and reported in Eightpoint Interactive's online reporting system.
7. Payments to an Affiliate in accordance with this Section shall be made within thirty (30) days following the end of the month in which such Commissions were earned by Affiliate, unless a shorter timeframe is set forth in the Campaign, subject in all cases Section E.2 hereof.
8. Affiliate acknowledges and agrees that the Commissions to be paid, as outlined in the Campaign, are intended as user data base creation activities on behalf of Eightpoint Interactive. Any failure of the Affiliate to comply with the terms of the Campaign could result in the Campaign not constituting a user data base creation activity, and, accordingly may result in non-payment of Affiliate of the applicable Commission in the event of such failure.

E. FRAUD

1. If Eightpoint Interactive determines, in its sole discretion, that the Affiliate or Sub-Affiliate has engaged in any activity that Eightpoint Interactive considers to be fraudulent activity (including without limitation, as defined in Section E.3 below) or which might bring the reputation or standing of Eightpoint Interactive into disrepute either with the general public or potential clients of Eightpoint Interactive, or otherwise that the Affiliate or Sub-Affiliate has engaged in activities which might be considered fraudulent, Eightpoint Interactive may, but will not be obligated to: (a) suspend or terminate the Affiliate's membership in the Program, without notice; and (b) release to any third party, information relating to the identity and location of the Affiliate if required to do so in order to enforce these terms and conditions.
2. In the event of a suspension or termination in accordance with paragraph E.1 above, any Commission due and payable to the Affiliate in accordance with Section D at the time of suspension or termination will be deemed to be forfeited. In the event of a suspension or termination in accordance with paragraph E.1 above, any Commission already paid to the Affiliate in accordance with Section D at the time of suspension or termination with respect to activity constituting a breach of Section E.1 hereof will be deemed to be forfeit and Affiliate shall promptly (not to exceed five (5) days), return all such amounts to Eightpoint Interactive. Eightpoint Interactive reserves all rights and actions to recover such amounts and to seek damages from Affiliate arising out of a breach of paragraph E.1.
3. For the purposes of this Agreement, “fraudulent activity” includes but is in no way limited to: (a) any activity which Eightpoint Interactive reasonably deems to have occurred in violation of the terms of this Agreement or the Affiliate Guidelines attached hereto as Exhibit A and hereby incorporated by reference (the “Affiliate Guidelines”) (b) activity by the Affiliate or anyone for whom in law the Affiliate is responsible and/or its Sub-Affiliates, which is directly or indirectly intended to inflate the Commissions payable to the Affiliate; (c) the generation of actions for which a Commission is otherwise payable other than by a mechanism approved by Eightpoint Interactive; (d) activity by the Affiliate or anyone for whom in law the Affiliate is responsible and/or its Sub-Affiliates which is not in accordance with the Program; and (e) activity which is determined by Eightpoint Interactive or the parties who have engaged Eightpoint Interactive to promote the Offers (hereinafter, the “Advertisers”), in their discretion, to be fraudulent.
4. Eightpoint Interactive may at any time audit Affiliate and/or its Sub-Affiliates for compliance purposes. Affiliate agrees to provide Eightpoint Interactive with any reasonable information necessary to conduct an investigation into Affiliate's and its Sub-Affiliate’s compliance with law and this Agreement.

F. COVENANTS, REPRESENTATIONS AND WARRANTIES

1. The Affiliate represents and warrants that: (a) it has the authority and capacity to enter into and to be bound by this Agreement; (b) it is at least eighteen (18) years of age; (c) to the best of its knowledge, there are no existing, pending or threatened claims or actions pending against the Affiliate; (d) none of the Affiliate's websites contain false or deceptive advertising or any machine readable code, including without limitation any virus, Trojan horse, work or other self-executing program; (e) the Affiliate websites are reputable and comply with all laws applicable in the jurisdiction where the Affiliate is situated and also where the Affiliate directly or indirectly conducts its business or markets an Offer; (f) it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites and in its electronic mail; and (g) it is not now a party to any agreement or business relationship which may conflict with this Agreement.
2. The Affiliate covenants and agrees that: (a) it will and shall cause its Sub-Affiliates to, at all times, comply with all laws applicable in the jurisdiction where the Affiliate (and/or Sub-Affiliates, as applicable) is situated and also where the Affiliate (and/or Sub-Affiliates, as applicable) directly or indirectly conducts its business or markets an Offer; (b) it will not and shall cause its Sub-Affiliates not to enter into any agreement or business relationship or otherwise incur any obligation which might, in the opinion of Eightpoint Interactive, conflict with this Agreement; (c) it will and shall cause its Sub-Affiliates to, at all times, comply with the terms of this Agreement, and the Eightpoint Interactivet Policies, as updated, amended and replaced by Eightpoint Interactive, from time to time, in its sole discretion; (d) it will not and shall cause its Sub-Affiliates not to, without the express written consent of Eightpoint Interactive, use or permit any person for who it is in law responsible to use any third-party trade-names or trade-marks; (e) it will not and shall cause its Sub-Affiliates not to publish on any website or send in any electronic mail a universal resource locator or other link to any content or otherwise engage in or condone any practice, which, in the opinion of Eightpoint Interactive is deceitful, defamatory, libelous, abusive, violent, prejudicial, obscene, pornographic, likely to bring the reputation or standing of Eightpoint Interactive into disrepute, or which otherwise would be illegal; (f) it will and shall cause its Sub-Affiliates to at all times comply with the terms and conditions of any agreement or policy established by an Offer in which the Affiliate elects to participate; (g) it will and shall cause its Sub-Affiliates to at all times comply with the provisions of the CAN-SPAM Act of 2003 and Canada's Anti-Spam Legislation ("CASL"), as amended or replaced, from time to time; (h) it will not and shall cause its Sub-Affiliates not to post any content relating to the Offer to any Usenet newsgroup, chat room, bulletin board or ‘blog' (save and excepting a chat room, bulletin board or blog which is operated or primarily owned by the Affiliate) without the express written consent of Eightpoint Interactive; (i) it will and shall cause its Sub-Affiliates to be responsible for the development, operation and maintenance of its website or websites and electronic mail, including without limitation the technical operation thereof, the creation, publication and accuracy of any content published on any such website or websites or in any electronic mail; (j) it will not and shall cause its Sub-Affiliates not to attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from Eightpoint Interactive; (k) it will not and shall cause its Sub-Affiliates not to "frame" or "mirror" any part of any pages hosted by Eightpoint Interactive unless expressly permitted by Eightpoint Interactive; (l) it will not and shall cause its Sub-Affiliates not to alter any website or electronic mail content provided by Eightpoint Interactive; and (m) it will and shall cause its Sub-Affiliates to, at all times and from time to time provide Eightpoint Interactive with written confirmation of a valid address, telephone number, electronic mail address and such other identifying or financial information as Eightpoint Interactive may reasonably require.

G. INDEMNIFICATION

1. The Affiliate covenants and agrees to indemnify and save harmless Eightpoint Interactive, its parent company, the Advertisers, and their respective shareholders, directors, officers, and employees (collectively, the "Indemnified Group") from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Affiliate and/or any Sub-Affiliate and/or the exercise by the Affiliate of any right under this Agreement and/or any act or omission of the Affiliate, a Sub-Affiliate or anyone for whom the Affiliate is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Affiliate and/or any Sub-Affiliate and/or any person for whom the Affiliate is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property. The obligation of the Affiliate to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. Eightpoint Interactive may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate. Eightpoint Interactive may participate in the defense of all claims as to which it does not assume defense and control, and Affiliate shall not settle any such claim without Eightpoint Interactive's prior written consent.

H. DISCLOSURE OF INFORMATION

1. Eightpoint Interactive or its directors, may, from time to time, disclose to the Affiliate certain information relating to Eightpoint Interactive's business or to Eightpoint Interactive's Advertisers, customers, affiliates, subsidiaries, Affiliates, agents, or employees; business and marketing plans, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of Eightpoint Interactive; or any data as found on the Program Site (all collectively referred to as the "Confidential Information"). The Affiliate acknowledges that Confidential Information will be provided at the sole discretion of Eightpoint Interactive, and nothing in this Agreement obligates Eightpoint Interactive, its directors, agents or employees to disclose or grant to the Affiliate access to any Confidential Information.
2. Unless expressly authorized in writing by Eightpoint Interactive, the Affiliate covenants and agrees: (a) to use the Confidential Information solely for the purposes expressly contemplated in this Agreement; and (b) that no Confidential Information will be disclosed to any third party, affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate without the prior written consent of Eightpoint Interactive, which may be unreasonably and arbitrarily withheld.
3. The Affiliate acknowledges that Eightpoint Interactive remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The Affiliate agrees that the Confidential Information will not be copied or otherwise reproduced without the express prior written consent of Eightpoint Interactive.
4. Upon termination of this Agreement, or otherwise on demand by Eightpoint Interactive, the Affiliate agrees that it will promptly deliver to Eightpoint Interactive all notes, data, tapes, reference items, sketches, drawings, memoranda, records, diskettes, electronic communications in any form and any other materials in any way relating to any of the Confidential Information in the possession of the Affiliate or any affiliate, subsidiary, Sub-Affiliate, agent, or employee of the Affiliate.
5. The Affiliate acknowledges and agrees that: (a) the provisions of this Section and the Affiliate's agreement with the same are of the essence and constitute a material inducement to Eightpoint Interactive to enter into this Agreement; (b) the provisions of this Section shall be construed independently of any other provision of this Agreement, and the existence of any claim or cause of action the Affiliate may have against Eightpoint Interactive, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Eightpoint Interactive of the provisions of this Section; (c) that any breach of this Section would cause irreparable harm to Eightpoint Interactive for which damages might not be an adequate remedy, and the Affiliate therefore agrees that in the event of any such breach Eightpoint Interactive will be entitled to seek, in addition to any other right accruing to Eightpoint Interactive under this Agreement or otherwise in law or equity, injunctive relief against the Affiliate without the necessity of proving actual damages; and (d) notwithstanding any other provision of this Agreement, this Section shall survive the termination of this Agreement, however caused.
6. The Affiliate agrees to indemnify and save harmless Eightpoint Interactive against any and all loss, costs or expenses, inclusive of court costs and legal fees which Eightpoint Interactive may incur as the direct or indirect result of any unauthorized disclosure of the Confidential Information by the Affiliate or any person for whom the Affiliate is responsible, in law.

I. NON-COMPETITION

1. During the term of this Agreement and for a period of six (6) months thereafter, the Affiliate will not seek, in any way, to undermine the goodwill of Eightpoint Interactive, and in particular, the Affiliate will not, directly or indirectly: (1) solicit or entice or attempt to solicit or entice, work away from Eightpoint Interactive, including without limitation, with respect to any Advertisers; or (2) solicit or entice or attempt to solicit or entice any of the employees of Eightpoint Interactive to enter into employment service with the Affiliate or a competitor of Eightpoint Interactive.
2. Affiliate will not (i) copy, create derivative works of or modify the extensions and/or other Eightpoint Interactive Applications or any parts thereof for the purposes of competing directly with Eightpoint Interactive; (ii) modify, remove or interfere with the extensions; and (iii) attempt to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the extensions or any part thereof, in whole or in part, or permit, authorize or encourage any other person or entity to do so.
3. Liquidated Damages. If Affiliate breaches its Confidentiality obligations as listed above or any of the provisions in this Section, Affiliate shall pay Eightpoint Interactive $50,000 as liquidated damages. The parties agree that quantifying losses arising from Affiliate’s breach of Affiliate’s Confidentiality obligations as listed in this Section or any of the provisions in this Section is inherently difficult insofar as the breach may impact Eightpoint Interactive’s reputation and intellectual property rights, and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the parties’ experience in the downloadable extension industry and given the nature of the losses that may result from such a breach.

J. DISCLAIMER AND LIMITATION OF LIABILITY

1. Eightpoint Interactive disclaims all warranties, conditions, representations, indemnities and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement), including without limitation with respect to the Program, the Program Site, the Offers, and/or any monetary benefit that could be derived by Affiliate from its participation in the Program.
2. Notwithstanding any other provision of this Agreement, Eightpoint Interactive additionally disclaims all obligations and liabilities on the part of Eightpoint Interactive and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys' and experts' fees, and court costs (even if Eightpoint Interactive has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.
3. In no circumstance will Eightpoint Interactive be liable to the Affiliate and/or its Sub-Affiliates, and/or any third party (including, without limitation, any customers obtained through Affiliate's marketing efforts) for any consequential, indirect, special, punitive or incidental damages or lost profits of the Affiliate and/or its Sub-Affiliates or their successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Without limiting the foregoing, Eightpoint Interactive will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Affiliate or third parties, Affiliate's equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of Eightpoint Interactive.
4. Link Formats. Eightpoint Interactive will provide Affiliate with special hyperlinks or URLs which must be used in order for Eightpoint Interactive to track actions. Eightpoint Interactive will have no liability for any failure by Affiliate to properly implement such special link formats in any Offer placements and the failure to do so shall result in no Commission being payable with respect thereto.

K. TERMINATION

1. Eightpoint Interactive may terminate this Agreement at any time. The Affiliate may terminate this Agreement, at any time, on forty-eight (48) hours Notice to Eightpoint Interactive.
2. Notwithstanding termination of this Agreement for any reason, the Affiliate covenants and agrees that it will continue to be bound by the terms and conditions set out in Sections D (as to Commissions earned prior to termination), E, G, H, I, J, K and L of this Agreement.

L. GENERAL

1. This Agreement, and any dispute arising from this Agreement or the Services, shall be governed by and construed in accordance with, the laws of the State of Florida, without giving effect to principles of conflicts of law. Venue for all disputes arising out of or related to this Agreement shall be the courts located in Miami-Dade County, Florida, USA, and the parties hereby irrevocably consent to such jurisdiction.
2. Eightpoint Interactive may assign this Agreement without the Affiliate's prior consent. The Affiliate may not assign this Agreement without the express written consent of Eightpoint Interactive.
3. From time to time, Eightpoint Interactive may amend, supplement or replace this Agreement or the Eightpoint Interactive Policies in part or in whole, on Notice to the Affiliate of not less than five (5) business days. If within five (5) business days following Notice of such amendment, supplement or replacement the Affiliate has not terminated this Agreement, the Affiliate will be deemed to have consented to the same.
4. Any notice or other communication ("Notice") permitted or required by this Agreement will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address provided to Eightpoint Interactive by Affiliate in its Eightpoint Interactive Program account. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or delivered.
5. No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties.
6. In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then this Agreement with respect to the remaining terms, covenants or conditions will continue in force.
7. This Agreement will inure to the benefit of and be binding upon the respective successors, heirs and assigns of both Eightpoint Interactive and the Affiliate.
8. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written. If Eightpoint Interactive is required to agree to online terms and conditions in order to access the Affiliate's online interface, the terms of this Agreement shall supersede any online agreement entered into by Eightpoint Interactive, and the terms of such online agreement shall not apply.

EXHIBIT A AFFILIATE GUIDELINES

As used within this Exhibit A, the term “You” means the Affiliate who signed up for the Eightpoint Interactive Affiliate Program and all of Your Downstream Affiliates.

1. You are not allowed to use any intellectual property of Eightpoint Interactive or affiliated companies to which it is related by ownership, other than the creatives made available to you. You must ask our written consent for any use of our web page screenshots or other content.

2. Unless specifically approved in writing, you may not direct traffic from any search engine directly to the landing page URL. All traffic must be directed through your own intermediary site, and our URLs must not be used as the “Display URL” in your ad copy, nor be in the title or description of your ad.

3. The content of your site or web pages or application may not be targeted towards children under thirteen years of age.

4. You may not place our ad creatives or links to our web pages in unsolicited email and other types of spam.

5. You may not interfere with our extension installation process in any manner. Practices such as invisible methods to generate a download or a click through to our web pages are strictly forbidden. All clicks or downloads must be initiated by affirmative end-user actions (i.e. human, unincentivized computer users).

6. You may not bundle our extension with other products or applications (or offers for other products, services or applications) without Eightpoint Interactive’s prior written consent, to be provided or withheld at Eightpoint Interactive’s sole and absolute discretion.

7. You may not condition the download of our extension upon any other download, action, or end-user act without Eightpoint Interactive’s prior written consent, to be provided or withheld at Eightpoint Interactive’s sole and absolute discretion.

8. You may not limit the functionality of our extension or make its functionalities dependent upon any other download, action, or end-user act without Eightpoint Interactive’s prior written consent, to be provided or withheld at Eightpoint Interactive’s sole and absolute discretion.

9. You may not cause our ad creatives to be displayed through downloadable applications that cause advertisements to pop up outside of the use of the application (adware) or that collects information about users and their behavior on the internet (spyware), without the prior written consent of Eightpoint Interactive. You may not engage in pop-up or pop-under advertising using any means involving third party software or websites. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results, without the prior written consent of Eightpoint Interactive. You may not display our ad creatives using any device, program, robot, Iframes, or hidden frames, without the prior written consent of Eightpoint Interactive.

10. You may not mislead users on the nature of our products.