TRAFFIC PARTNER AGREEMENT

 

         This TRAFFIC PARTNER ADVERTISER LISTINGS SYNDICATION AGREEMENT (the “Agreement”) is entered into by and between Search123.com Inc., a California corporation (“Search123”) and the individual or entity named in the online application to participate in Search123's Traffic Partner Program located at http://www.search123.com (“Online Application”) submitted by the prospective partner (“Partner”).

 

         WHEREAS, Search123 operates a pay-per-click ("PPC") search engine service located at http://www.search123.com in which online advertisers list their websites and bid on keywords in order to attract visitors searching for their products and services (the “Search123 Service”);

 

         WHEREAS, Partner operates a website, search directory, search engine or other approved service as designated in the Online Application  (the “Partner Service”);

 

         WHEREAS, Partner desires to include Search123's paid advertiser listings within the search results displayed on the Partner Service and Search123 desires to enable such integration of its advertiser listings under certain terms and conditions;

 

         NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.            Definitions.

 

a.      “Accepted Countries” means the following countries: Australia; Canada; Great Britain; Ireland; Spain, Austria, Germany, Italy, Denmark, Finland, Sweden, France,  United States of America; Virgin Islands (U.S.); and, Virgin Islands (British).  Search123 will only accept and credit Partner for Referrals originating from IP addresses from Accepted Countries, the determination of which shall be based solely on Search123's proprietary tracking and validation technology.  Search123 retains the right to change its list of Accepted Countries at any time by providing Partner with three (3) days prior written notice of such change.

b.      “Destination Page” means the Search123 advertiser's webpage accessed by an Internet User by clicking on a Search123 Advertiser Listing.

c.      “Gross Click-Through Revenue” means the total amount of money generated by Search123 for Referrals under the terms of this Agreement.

d.      “Internet User” shall mean a natural person, performing a Query. Searches and clicks generated by hit bots, robots, spiders, scrapers, multiple clicking scripts, zeroframes, iframes, IRC cheats, or other software programs which may now exist or which may be developed in the future for artificially generating Internet searches or clicks, or any other mechanical or manual means of artificially generating Internet searches or clicks, shall be specifically excluded in the definition of Internet User.

e.      “Partner Affiliate” shall mean a website that distributes the Partner Service or refers Internet Users to the Partner Service that are approved by Search123 to receive the Search123 Search Results.  Prior to providing any Partner Affiliate with the Search123 Advertiser Listings, Partner shall submit a written request for approval to Search123, which request shall include the name, website URL address, proposed implementation date, and anticipated query volume of each proposed Partner Affiliate.  Search123 shall provide a written approval or disapproval within three (3) business days of receipt of such request from Partner.  Search123 shall have the absolute right to approve, conditionally approve or disapprove any proposed Partner Affiliate, at its discretion, or to terminate Partner Affiliates at any time subsequent to approval.  All payments due to the Partner Affiliate shall be the sole responsibility of Partner.

f.        “Partner Site” shall mean the default Internet home page that is located at the URL provided by the Partner in the online application.

g.      “Query” shall mean a bone fide English-language Internet search initiated by an Internet User on the Partner Site (or on a Partner Affiliate, if applicable) by actively entering single keywords or keyword phrases into a search box or by clicking on a text-based link.  The Query, which shall not be modified by Partner in any way, generates Search123 Search Results (if available) that are relevant to such Query.

h.      “Referral” occurs when an Internet User from an Accepted Country conducts a Query and clicks on a Search123 Advertiser Listing and accesses a Destination Page.  Searches and clicks that are incentivized in any way (whether for monetary compensation or other form of direct or indirect compensation), created as a result of a so-called “cheat group,” or generated by any form of SPAM, including unsolicited email, newsgroups, ICQ, unauthorized adjustment of browsers shall not be counted as Referrals. The determination of whether a Referral occurs shall be based solely on Search123's proprietary tracking and validation technology.

i.        “Search123 Advertiser Listing” means a text-based site title, description (maximum 255 characters, including spaces) and URL hyperlink (with tracking code) that is drawn from Search123's proprietary advertiser database and/or through its third party relationships in response to a Query for the purpose of generating a Referral.

j.         “Search123 Feed” shall mean the text-based data feed, or other mutually acceptable form of technical implementation, that enables the Partner (and the Partner Affiliates, as applicable) to present the Search123 Search Results in response to an Internet User's keyword search query.

k.      “Search123 Search Results” means a set of Search123 Advertiser Listings provided by Search123 through the Search123 Feed.  The Search123 Search Results, when integrated into the Partner Service, will appear on the Partner Service or Partner Affiliate search results page (as applicable) (a) without modification to the content of each Search123 Advertiser Listing and (b) in order of bid price relative to the bid price of other listings included in the search results provided to an Internet User by the Partner or Partner Affiliate.

 

2.            Implementation.            Search123 will provide Partner with access to the Application Programming Interface (the “API”) for the Search123 Feed and shall provide commercially reasonable assistance to Partner in completing the implementation of the Search123 Feed.  The web pages containing Search123 Search Results shall be served and hosted by Partner or by the Partner Affiliate (as applicable).  The database and search algorithm (and any modifications thereto) used to generate the Search123 Search Results are proprietary to Search123 and shall remain entirely within Search123's control. Search123 retains the right to modify the content of the Search123 Search Results, as well as the underlying database and search algorithm, at its absolute discretion without providing any notice to Partner.

 

3.            Traffic Increases. Partner will provide Search123 with seven (7) days prior written notice of any increase in search volume that Partner reasonably anticipates will increase Partner's then-current search traffic volume by twenty-five percent (25%) or more.

 

4.            Partner Payment.         Search123 shall pay Partner a total of fifty percent (50%) of the Gross Click-Through Revenue on a monthly basis (the “Partner Revenue”).  The Partner Revenue shall be paid within thirty (30) days of the close of the month in which the Partner Revenue was earned under the terms of this Agreement.  If Search123 terminates this Agreement, final payment may be delayed for as long as sixty (60) additional days in cases in which the number of Referrals has not been validated to the satisfaction of Search123.

 

5.            Term.     This Agreement shall commence upon the Effective Date and shall continue in full force and effect until terminated by either party, at each party's exclusive discretion (the “Term”).  No notice is required in order for either party to terminate this Agreement.  This Agreement shall automatically terminate if Partner has not implemented the Search123 Feed within thirty (30) days of the Effective Date.

 

6.            Effects of Termination.            Upon termination of this Agreement, each party shall disable the Search123 Feed for the Partner and Partner Affiliates (as applicable) and the license granted hereunder by Search123 and the Licenses granted hereunder shall cease, except as the parties may agree in writing.

 

7.            Non-Exclusivity.            Nothing contained in this Agreement is intended to create an exclusive relationship between the parties that would limit the ability of either party to enter into similar agreements with third parties.

 

8.            Licenses.

 

a.      Database License.  During the Term of this Agreement, and subject to the terms and conditions contained in this Agreement, Search123 hereby grants to Partner a royalty free, non-transferable, non-exclusive license, to (i) use, transmit, integrate, display and distribute the Search123 Search Results (the “Content”) via the Partner Service, to Internet end-users on the Partner Site, and (ii) subject to the terms hereof, sublicense the Content to Partner Affiliates, provided that such Partner Affiliates shall enter into a written contract with Partner by which the same license and trademark limitations and restrictions are placed on Partner Affiliates as are placed hereby on Partner. The rights granted by Search123 hereunder, including without limitation the license regarding the Content, are limited to the display and distribution as part of the Partner Service.

b.      Trademark License.  During the Term of this Agreement, each party hereby grants to the other party a non-exclusive, non-sub-licensable, non-transferable, royalty-free right and license (the “Trademark License”) to use, display and reproduce such party's name, logo, trademarks and service marks (the “Trademarks”), solely for the purposes of displaying and maintaining the Search123 Service and Partner Service as set forth in this Agreement. Each party acknowledges that the other party's Trademark is and will remain the exclusive property of such party and all use by each party of any Trademark will inure solely to the benefit of the owning party.  Neither this Agreement nor any rights granted hereunder will operate as a transfer of any rights in or to any Trademark, except for the limited rights expressly granted under this Agreement. No party will take any action that would undermine, conflict with, or be contrary to the intellectual property rights and interest of the other party, including, without limitation, any use of, or attempt to register, any trademark, service mark or trade name substantially similar to any other party's Trademark.

c.      Content & Data Ownership.  Search123 shall retain all right, title and interest in, to and under the API, Content, algorithm and related technology, and all traffic data collected under this Agreement.  Search123 will retain all right, title and interest in, to and under the intellectual property included in the Content (including, without limitation, ownership of all copyrights and other intellectual property rights therein).  Other than as expressly set forth herein, Partner and its agents, officers, directors, employees, related parties, affiliates and representatives will not (i) sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way the Content except as may be expressly permitted herein; or (ii) attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of Search123's Content, algorithms, databases, computer programs, ontology, directory structure, patents, copyrights, or other proprietary rights or Search123's methodology related to the creation and compilation of Search123 URLs from the Content or any other information furnished to Partner by Search123, or permit any third party to attempt any of the foregoing.

 

9.            Online Reporting.         Search123 shall provide Partner with a username and password that allows Partner to access a secure, web-based online reporting interface that details the number of Referrals and the corresponding Gross Click-Through Revenue generated by the Partner through the date and time of the report (“Partner Reports”).  The Partner Reports are subject to revision at any time prior to the issuance of payment to the Partner, based on Search123's proprietary month-end validation processes. Search123 shall determine, at its exclusive discretion, the number of Referrals generated by the Partner, and the corresponding amount of Partner Revenue.  To the extent that there is a discrepancy between the parties in the number of Referrals counted for any given month that is in excess of five percent (5%), the parties shall cooperate to resolve such discrepancy to the satisfaction of both parties.

 

10.        Modifications to this Agreement.       SEARCH123 HAS THE EXCLUSIVE DISCRETION TO MAKE CHANGES TO THIS AGREEMENT BY REVISING THE TERMS CONTAINED HEREIN.  SEARCH123 IS NOT REQUIRED TO PROVIDE PARTNER WITH NOTICE OF ANY CHANGES MADE TO THIS AGREEMENT.  PARTNER SHOULD REGULARLY REVIEW THIS AGREEMENT AS COMPLIANCE WITH THE TERMS HEREOF IS ENTIRELY THE RESPONSIBILITY OF PARTNER.

 

11.        Standard Terms & Conditions.

 

a.      Payment. All payments shall be made in U.S. dollars. Search123 shall pay, and indemnify and hold Partner harmless against, all sales, use, excise, value-added or similar tax, fee or duty not based on Partner's net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, levied on any of the activities conducted or payments made by Search123 hereunder.

b.      Representations and Warranties. Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out its provisions; (b) it is duly authorized to execute and deliver this Agreement and to perform its obligations; and, (c) this Agreement is valid and legally binding upon it and the execution, delivery and performance of this Agreement by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it.  Partner warrants that it will use commercially reasonable efforts to ensure that the Partner Site and all approved Partner Affiliate web sites, and the content contained thereon, will not be, or contain any material that is, obscene, pornographic, profane, fraudulent, libelous or defamatory, or infringing of any intellectual property rights, privacy rights or other rights of any third party.

c.      Disclaimer. SEARCH123 AND PARTNER EACH DISCLAIM ALL WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT OR THAT THE SEARCH123 SEARCH RESULTS AND/OR THE SEARCH123 FEED WILL BE UNITERRUPTED OR ERROR-FREE.   NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY CONTENT PROVIDED BY THIRD PARTIES (INCLUDING ADVERTISERS), OR FOR ANY THIRD PARTY SITES THAT CAN BE LINKED TO OR FROM SUCH PARTY'S WEB SITE. IN ADDITION, SEARCH123 DISCLAIMS ALL LIABILITY OF ANY KIND OF SEARCH123'S ADVERTISERS, LICENSORS AND OTHER SUPPLIERS.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO ITS SERVICES.

d.      Liability Limitations. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (I) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM SUCH PARTY'S PERFORMANCE OR NON-PERFORMANCE UNDER ANY PROVISION OF THIS AGREEMENT OR THE PROVISION OF SUCH PARTY'S SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, OR (II) ANY AMOUNT IN EXCESS OF THE AMOUNT PAYABLE BY SEARCH123 TO PARTNER DURING THE FIRST YEAR OF THE TERM. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS SECTION SHALL NOT LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR WILLFUL AND MALICIOUS MISCONDUCT, BREACH OF CONFIDENTIALITY OBLIGATIONS, OR FULFILLMENT OF ANY INDEMNIFICATION OBLIGATIONS HEREUNDER.

e.      Indemnification.   The parties hereby agrees to indemnify, defend protect and hold each other, and their respective officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys (collectively the “Representatives”) harmless from and against any and all claims, causes of actions, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, damages, costs and expenses (including without limitation, reasonable attorneys' fees and related costs and expenses, whether or not suit is filed or proceedings instituted thereon), directly or indirectly arising in connection with each party's business, this Agreement, or any breach or default in performance by either party of any obligations hereunder or under any obligations to third parties.

f.        Confidentiality.     The parties shall maintain the terms and conditions of this Agreement confidential.  All information furnished to or shared with a party by the other party with regard to this Agreement or a party's business, unless such information is known by the general public, will be kept confidential by a party and shall not be disclosed to any third party except: (i) at the written consent of a party; (ii) to the extent necessary to comply with any law, regulation or valid order of a court or agency of competent jurisdiction; (iii) as a part of a party's normal reporting requirements to its auditors and attorneys; or (iv) to the extent necessary to permit the performance of a party's obligations under this Agreement or to enforce a party's rights under this Agreement.

g.      Press Release.   Neither party shall issue any press release in connection with this Agreement without the other party's prior written consent.  The content of such press release or announcement shall be subject to the approval of Search123, which approval shall be exercised at Search123's exclusive discretion.  Excluding disclosures that may be required by law, neither party shall disclose any other terms of this Agreement to any person or entity without the prior approval of the other party.  Notwithstanding the foregoing and subject to any confidentiality obligations imposed upon a party under this Agreement, (i) Search123 shall have the right to notify its advertisers and potential advertisers of the general nature of this transaction, (ii) both parties shall be entitled to provide additional disclosures containing any and all information contained in any previously agreed disclosure or press release, and (iii) both parties shall be entitled to list the other party's name in advertising and other materials.  When determining whether a disclosure is “required by law” both parties may rely on their respective legal counsels' advice on such matters.

h.      Independent Contractors.   The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

i.        Assignment.   Neither party may assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld.

j.         Amendment.   Partner cannot create any amendment, change, waiver, or discharge to this Agreement without the written approval of Search123.

k.      Waiver.   No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.  No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.

l.         Notices.    All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back.  All notices shall be directed to the parties at the respective addresses indicated on the signature page hereof or to such other address as either party may, from time to time, designate by notice to the other party.

m.    Compliance with Law.  Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.

n.      Choice of Law.    This Agreement shall be construed and controlled by the laws of the State of California. Any dispute arising in connection with this Agreement, including, without limitation, a breach of this Agreement, shall be governed by the laws of the State of California. The parties agree to submit to the jurisdiction of the state and federal courts located in Los Angeles.

o.      Headings.            The headings of the sections of this Agreement have been included only for convenience, and shall not be deemed in any manner to modify or limit any of the provisions of this Agreement, or be used in any manner in the interpretation of this Agreement.

p.      Counterparts.  This Agreement may be entered into by each party in separate counterparts and shall constitute one fully executed Agreement upon execution by both Partner and Search123.

q.      Prior Understanding.      This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.

r.        Interpretation.       Whenever the context so requires in this Agreement, all words used in the plural (and vice versa), each gender shall be construed to include any other genders, and the word “person” shall be construed to include a natural person, a joint venture, a trust, an estate or any other entity.

s.      Partial Invalidity.  Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this Agreement.

t.        Force Majeure.   If the performance of any part of this Agreement by either party, except for the obligation to pay amounts payable hereunder, is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the reasonable control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

 

BY SUBMITTING AN ONLINE APPLICATION TO PARTICIPATE IN SEARCH123'S TRAFFIC PARTNER PROGRAM, AND BY CHECKING THE BOX AT THE BOTTOM OF THE APPLICATION PAGE CONFIRMING ACCEPTANCE OF THIS AGREEMENT, THE PROSPECTIVE PARTNER HEREBY AGREES TO BE UNCONDITIONALLY BOUND BY EACH AND EVERY TERM AND CONDITION CONTAINED HEREIN IF SEARCH123 APPROVES THE PROSPECTIVE PARTNER'S APPLICATION TO PARTICIPATE IN THIS PROGRAM, WHICH APPROVAL OR DISAPPROVAL IS AT SEARCH123'S EXCLUSIVE DISCRETION.