Advertiser Agreement
Online Marketing Agreement

This agreement by and between Interactive Marketing Solutions (“Company” and/or "IMS" ) and the Marketer, which includes and incorporates the following terms and conditions, govern the placement and delivery of advertising ("Ad") to which these terms and conditions are attached

1. Terms of Agreement.  The term of this Agreement commences on the Acceptance Date set forth upon registration in the IMS affiliate program and terminates on such later date as the parties may agree in writing.
2. Advertisements; Restrictions and Conditions. (i) As used herein, Advertisements means, without limitation, the banners, buttons, clicks, co-registrations, emails, audio and video files, content, text, graphic files and similar media and or data described in this insertion order. (ii) The services and content produced by and performed by Marketer for IMS pursuant to this insertion order including discoveries, inventions, know-how, technology, plans, writings, drawings, graphics, concepts, finished and unfinished outlines, drafts, notes, printed materials, designs, models, processes, software, and all evidence and physical embodiments thereof (collectively referred to as the “Work Items) shall be approved for use only after review by IMS. IMS does not convey any ownership rights or licensing rights to the Marketer for the development of any of the Work Items. 
3. Payment.  Marketer agrees to be paid by Company for all advertising published by Company to Marketer on a CPA, CPC, or CPM basis in accordance with the terms of this agreement and the Campaign Specifications set forth herein. All payments made pursuant to this tracking system and shall be denominated in US Dollars and shall be made by IMS company check or by other means expressly agreed to in writing by the parties. Unless otherwise stated, Marketer will submit invoices to Company for amounts due from the 1st of the month to the end of the month. Unless otherwise stated, Company shall remit payment to the Marketer on each invoice within fifteen (15) days of receiving the invoice.
4. Reporting.  IMS will provide reports and Marketer agrees to invoice IMS based on IMS reporting, which shall be binding based on terms set forth under “Payment” in this Insertion Order. If IMS permits Marketer to host the Advertisement in a CPA campaign, Marketer will allow IMS to place a tracking pixel on the Advertisement and IMS reporting generated from such tracking pixel will be binding on Marketer. IMS may allow use of Marketer’s reporting only if agreed to expressly in writing and in addition to the terms and conditions of this Insertion Order.
5. Advertiser’s Representations; Indemnification. Advertiser represents and warrants to Marketer that Advertiser holds all necessary rights to permit the use of the advertisement by Marketer for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any criminal laws or any rights of any third parties, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law.  Advertiser agrees to indemnify, defend and hold Marketer and Third Parties (if any) harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to breach of any of the foregoing representations and warranties
6. Additional Content Control.  Marketer will be solely responsible for creating, managing, reviewing, deleting and otherwise controlling any additional content other than that covered by this insertion order in the advertisement. This will include but is not limited to any negative option programs, lead generation programs, redirect campaigns, and unrelated banner advertisements. Advertiser acknowledges that, in providing Marketer with the ability to publish and distribute the additional content, IMS is acting only as a passive conduit for the distribution and publishing of such content. Marketer retains complete discretion over the additional content published and distributed by Marketer. IMS has no obligation to Marketer, and undertakes no responsibility to review the additional content to determine whether such content may result in liability to third parties.
7. Right to Reject Advertisement; Positioning. All contents of advertisements are subject to IMS approval.  IMS reserves the right to reject or cancel any advertisement, Insertion Order, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by IMS that any placement thereof may subject IMS to criminal or civil liability).
8. Confidentiality. During the term of this Agreement, and until such time as the “Confidential Information” (as defined below) is no longer protected as a trade secret under NY law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein.  “Confidential Information” means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally know to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.  Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Insertion Order.  Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Agreement; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority.  At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
9. DISCLAIMER OF WARRANTIES. IMS PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, IMS’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. IMS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL IMS BE LIABLE TO MARKETER OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION OR DATA, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT WILL IMS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, ATUAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLDUING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT IMS HAS BEEN ADVISED AND/OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY THEREOF.
11. Termination. In addition to any other remedies that may be available to it, IMS may immediately terminate the agreement in the event of any breach by Marketer of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. Either party may cancel this agreement, for any reason, on (48) forty-eight hours written notice receipt. Sections 1 through 9, 12 through 15, and any accrued but unpaid payment obligations, shall survive termination.
12. Privacy.  All parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal and state regulations. All parties shall also provide notice for, and fully disclose, their respective privacy policies and practices to visitors to their websites(s). Advertiser warrants that engaging in the services provided by the Company pursuant to this Insertion Order shall not violate Advertiser’s privacy policy.
13.  General Provisions.  The parties hereby represent and warrant that they will at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses including, without limitation, the CAN SPAM Act of 2003, laws governing deceptive trade practices and/or online marketing and/or advertising. Furthermore, the parties hereto expressly agree that the Customer Database generated under the Insertion Order shall be shared by the parties. Each of the parties shall be free to use this database as each sees fit, in its sole discretion, provoded that such use complies with all applicable state and federal laws, rules and regulations, including, without limitation, the CAN-SPAM Act of 2003, as amended from time to time (CAN-SPAM). The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation, CAN-SPAM, laws governing deceptive trade practices and/or online marketing and/or advertising. Advertiser agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with CAN-SPAM. Advertiser agrees to maintain an updated unsubscribe suppression list for the offer and will make such list available to the Marketer. Marketer agrees to 1) check such suppression list on a daily basis; 2) maintain similar suppression lists for opt-out requests that Marketer receives directly from its email recipients in association with the offer covered under this insertions order 3) transmit all unsubscribe requests back to the Advertiser within five (5) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such email address(es) from its lists and/or databases. Marketer explicitly agrees not to use any suppression list for purposes of e-mail marketing (or provide a suppression list, or any part thereof, to any third party for said purpose) and will not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression lists. Marketer agrees not to use suppression list for purposes of e-mail appending in any manner whatsoever. Marketer further agrees to include a physical address for both itself and Advertiser in the body of every e-mail. Marketer will only insert the address given to it by the Advertiser, in writing, prior to deployment of any e-mail marketing campaign. Marketer may not, at its discretion, insert an address on behalf of the Advertiser. 
14. Indemnity. Marketer agrees to indemnify, defend, and hold harmless IMS for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) made against IMS by a third party or parties as a result of the acts or omissions or breach of this Agreement by Marketer. IMS agrees to indemnify, defend, and hold harmless Marketer for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) made against Marketer by a third party or parties as a result of acts of gross negligence or willful misconduct by IMS. In the event either of these indemnities include claims against the employees, agents or affiliates of IMS or Marketer, those employees, agents, or affiliates shall be indemnified just as their principal would be.
15. Miscellaneous. This Agreement will be governed and construed in accordance with the laws of the State of New York without giving effect to conflict of laws principles. Marketer/client and IMS agree to submit to jurisdiction in New York and venue in the courts of Rockland County, New York. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Marketer may not assign this Agreement without the prior written consent of IMS. The parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
16. Other Agreements. This Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement.