WEB PUBLISHER TERMS AND CONDITIONS

WEB PUBLISHER TERMS AND CONDITIONS
This agreement sets out the Terms and Conditions applicable to web publishers participating in the Tribal Fusion online advertising marketplace. In order for an applicant's site(s) to be considered for participation in the Tribal Fusion marketplace as a publisher, and as a condition of continued participation, applicants must agree to the following Terms and Conditions. By filling out the Join Form and completing the registration process, applicants are indicating their agreement to be bound by these Terms and Conditions in their entirety. In the event an applicant, after joining the marketplace as a publisher, breaches or otherwise fails to comply with any provision of these Terms and Conditions Tribal Fusion may terminate the participation of such publisher in the marketplace.
1 Tribal Fusion Category Tree
1.1 Category Tree. Tribal Fusion will maintain a Category Tree which provides in hierarchical form certain categories of advertising space according to the type of content on the web sites of Client Publishers. Tribal Fusion may change the form and content of the Category Tree from time to time at its sole discretion.
1.2 Location in the Tree. Tribal Fusion will determine which category in the Tribal Fusion Category Tree is most appropriate for Publisher's web site. Certain portions of Publisher's web site may be categorized in a different category of the Category Tree than other portions of the web site. Tribal Fusion at its sole discretion will determine the location of Publisher's web site in the Category Tree and whether and how Publisher's web site should be segmented into content areas and the placement of each content area in the Category Tree.
1.3 Advertisers. Tribal Fusion will make the Category Tree available to the public and to Client Advertisers and solicit Client Advertisers to place advertisements on the web sites represented in the Category Tree.
1.4 Delivery. Tribal Fusion will store advertisements from Client Advertisers on computer systems and will obtain all necessary rights, licenses, consents, waivers and permissions from Client Advertisers to allow Tribal Fusion to store and serve advertising materials of Client Advertisers on Client Publishers web sites.
2 Tribal Fusion Marketplace
2.1 Marketplace. Tribal Fusion provides web advertising services to web site publishers and web site advertisers and assists advertisers in placing their advertisements on the web sites of publishers using a system called the Tribal Fusion Marketplace.
2.2 Right to Refuse. Tribal Fusion reserves the right to refuse to accept any publisher at its sole discretion, as a member of the Tribal Fusion Marketplace. Publisher web sites shall not contain (or have direct links to) any content deemed inappropriate by Tribal Fusion at its sole discretion, which includes but is not limited to the following: content promoting the use of alcohol, tobacco or illegal substances; sex, pornography or adult-oriented content; violence, expletives or inappropriate language; content promoting illegal activity such as copyright infringement, racism, hate, mail fraud, spam, pyramid schemes, investment opportunities or other advice not permitted under applicable law; content that is libelous, defamatory, contrary to public policy or otherwise unlawful.
2.3 Ad Delivery. Tribal Fusion will serve on Publisher's web site certain advertising banners from Client Advertisers according to the Tribal Fusion Marketplace Procedures described below.
2.4 Procedure. The Tribal Fusion Marketplace operates according to procedures specified by Tribal Fusion on its web site, and Tribal Fusion may change its Marketplace procedures from time to time at its discretion. As presently designed The Tribal Fusion Marketplace operates as follows: Tribal Fusion provides specified minimum cost per thousand impressions ("CPM") for each category in the Category Tree. Client Advertisers specify a category or ad space in the Tribal Fusion Category Tree in which the Advertiser wishes to have its advertising displayed. Tribal Fusion sorts all Client Advertiser campaigns targeting each ad space and delivers the banner of the highest paying campaign to the web browser visiting the Client Publisher's web site.
2.5 Media Kit. Each client Publisher prepares a Media Kit describing its web site and uploads it into the Tribal Fusion web site where Tribal Fusion will make it available to the public and to Client Advertisers.
3 Reporting and Payment
3.1 Records. Tribal Fusion will maintain records of the placement of advertising banners, post reports of such placement on Tribal Fusion's web site for Publisher to access there, and make payments to Publisher.
3.2 Payment. Tribal Fusion will pay Publisher 55% of gross advertising revenue received by Tribal Fusion for advertising placed on Publisher's web site, and Tribal Fusion will retain 45% of the revenue for its services. Tribal Fusion will pay Publisher only for months in which earned revenue exceeds $50 for the month. Revenue which is not paid to Publisher in any month will be credited to the account of Publisher and paid later, when accrued revenue exceeds $50.00. If Publisher wishes to change this $50.00 limit, Publisher can do so through the Tribal Fusion web interface for Client Publishers.
3.3 Schedule. Tribal Fusion will pay Publisher within 45 days after the end of the month (Net 45). Publisher must keep its payment address, email address and telephone number in their account current.
3.4 Discrepancies. Publisher must report any claims that Tribal Fusion's report of ads served to Publisher's web site are inaccurate to Tribal Fusion within 30 days following the end of the month in which such inaccuracy is believed to have occurred. Tribal Fusion will make commercially reasonable efforts to resolve reported inaccuracies fairly. Resolution is at Tribal Fusion's sole discretion and all resolutions are final.
4 Publisher Responsibilities
4.1 Publisher's Web Site. Only the legal web site owner can apply to be a member of the Tribal Fusion Marketplace as a Client Publisher. The Publisher may only place advertising delivered by Tribal Fusion on web pages owned or controlled by Publisher. Free hosting, community or redirection services are not permitted. Framed content pages are not permitted. Publisher must notify Tribal Fusion whenever Publisher's content changes significantly.
4.2 Impressions. Publisher must deliver ad impressions to a minimum of 1000 unique users per day. Impressions must be made available in the Marketplace at approximately a constant rate throughout each month.
4.3 HTML Code. Publisher must add Tribal Fusion-provided HTML code on designated pages within the Publisher's web site. Publisher cannot make any changes to the code unless approved in writing by Tribal Fusion.
4.4 Banner Size and Location. All banners are 468x60 pixels. Publisher must place banners above the fold on a 800x600 screen. Banners must be viewable without scrolling, must be the only 468x60 banner above the fold, and must be placed on a page with content.
4.5 Valid Impressions. Publisher may not use robots, spiders, auto-spawning browsers, auto reloading or any other method of generating artificial or fraudulent impressions.
4.6 Ad Space Pricing. Publishers must set the minimum CPM (cost per thousand impressions) for each of their ad spaces in the Marketplace. The minimum CPM is the minimum price advertisers must pay if they specifically target the ad space. Publishers can change the minimum CPM for their ad space(s) at any time
4.7 Web Site Media Kit. Publisher shall provide a text description of its web site for inclusion on the Tribal Fusion web site as part of Publisher's Media Kit. Publisher must add information such as company logo, URL and a web site description to its online media kit. Tribal Fusion shall have the right to edit the Media Kit. Publisher hereby grants to Tribal Fusion a non-exclusive, revocable, royalty-free license to use and display all such information on the Tribal Fusion web site as part of the Publisher's Media Kit.
4.8 Co-operation. Publishers agree to co-operate with Tribal Fusion's reasonable requests for information to be used for auditing or similar purposes.
4.9 Proprietary Rights. Publisher shall not have, nor will it claim, any right, title or interest in any advertising content delivered by Tribal Fusion (other than Publisher's own advertising content). Publisher is granted no license to Tribal Fusion advertising content, the name "Tribal Fusion" or any derivative thereof, or any other trademarks, logos, copyrights, patents, trade secrets or other intellectual property rights which are owned or controlled by Tribal Fusion and made available to Publisher in any manner.
4.10 Ad Blocking. Publisher may specify domain names (specific companies) from which Publisher wishes no banners to be served. Publisher may also view reports showing which campaigns have appeared on its web site and can block specific campaigns from appearing again in the future by blocking the domain to which the campaign clicks through. Tribal Fusion will use commercially reasonable efforts to block such banners and campaigns. Publisher agrees that Tribal Fusion's ad blocking system is adequate to prevent unwanted or inappropriate banners from appearing on Publisher's site, and in no event will Publisher hold Tribal Fusion liable for the content of any advertisement delivered to Publisher.
5 Marketing and Promotional Use
5.1 Tribal Fusion Use. Publisher unconditionally authorizes Tribal Fusion to use Publisher's name and logo on the Tribal Fusion web site, in media collateral and in press releases.
5.2 Publisher Use. Publisher may use Tribal Fusion's name and logo upon obtaining written authorization from Tribal Fusion.
6 Term and Termination
6.1 Initial Term. The initial term shall be for six months from the "Effective Date" unless terminated earlier as provided in this Section 6. After six months, the term shall be one month and shall automatically renew each month unless terminated by either party.
6.2 Termination. Publisher may discontinue participating in the marketplace after the initial term by providing 30 days written notice to Tribal Fusion. However, Publisher has an obligation to fulfill any advertising campaign configured to run on their site in its entirety prior to termination. Tribal Fusion may terminate a Publisher's participation at any time if Publisher's web site quality falls below the standard set by other web sites in the marketplace, fails to deliver the minimum number of impressions, or if Publisher fails to comply with any other provision of these Terms and Conditions.
7 Indemnification
7.1 Tribal Fusion Indemnification. The Publisher agrees to indemnify and hold Tribal Fusion and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees resulting from (i) the participation of the Publisher in the Tribal Fusion marketplace, (ii) operation of the Publisher's web site in the Tribal Fusion marketplace, or (iii) otherwise resulting from the Publisher's relationship with Tribal Fusion. The Publisher also agrees to indemnify Tribal Fusion for any legal fees incurred by Tribal Fusion, acting reasonably, in investigating or enforcing its rights under these Terms and Conditions.
7.2 Publisher Indemnification. Tribal Fusion agrees to indemnify and hold Publisher and its affiliates, employees, agents and representatives harmless from and against any and all claims, demands, liabilities, expenses, losses, damages and attorney fees resulting from Tribal Fusion's breach of any of its obligations under this Agreement. Tribal Fusion also agrees to indemnify Publisher for any legal fees incurred by Publisher, acting reasonably, in investigating or enforcing its rights under the Agreement.
8 Disclaimers, Exclusions and Limitations
8.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THAT PARTY'S WEB SITE AND ANY PRODUCT, SERVICE OR INFORMATION THEREON OR OTHERWISE RELATING TO THESE TERMS AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER PARTY WARRANTS THAT ITS WEB SITE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
8.2 Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS AND CONDITIONS UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THESE TERMS AND CONDITIONS , INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL THE RECEIVING PARTY'S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS EXCEED THE PAYMENTS TO THE DIRECTING PARTY HEREUNDER. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION 8.2 SHALL NOT APPLY TO A PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 7.
9 Miscellaneous
9.1 Independent Contractors. Tribal Fusion and the Publishers are independent contractors. Neither party is an agent or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on the behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. These Terms and Conditions shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
9.2 Entire Agreement. These Terms and Conditions set forth the entire agreement between the parties and supercedes prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter contained herein. These Terms and Conditions may be changed only by mutual agreement of the parties in writing. These Terms and Conditions may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document.
9.3 Assignment. Publisher may not assign or otherwise transfer, whether voluntarily or by operator of law, any rights or obligations under these Terms and Conditions without the prior written consent of Tribal Fusion.
9.4 Governing Law/Notice. These Terms and Conditions shall be construed and interpreted according to the laws of the State of California without reference to conflicts of law provisions. The parties hereby consent to the exclusive jurisdiction of the courts of Alameda County, California. All written notices between the parties shall be deemed to have been given if personally delivered, sent by courier or certified, registered or express mail, or transmitted by electronic mail via the Internet (with copy sent by registered or certified airmail) to the address specified by applicant in the Join Form. Unless otherwise provided herein, all notices shall be deemed to have been duly given on (i) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally, by electronic mail or by courier, or (ii) three days after the date of posting if transmitted by mail.
9.5 Waiver/ Severability. The waiver by either party of a breach or right under these Terms and Conditions will not constitute a waiver of any other or subsequent breach or right. If any provision of these Terms and Conditions is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms and Conditions , which will remain in full force and effect.
9.6 Force Majeure. Tribal Fusion shall not be in default or otherwise liable for any delay in or failure of its performance under these Terms and Conditions where such delay or failure arises by reason of any Act of God, or any government or governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of Tribal Fusion.
2001.09.16 version 1.7