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ReviMedia Advertiser Purchase Agreement

This Purchase Agreement is entered into by and between ReviMedia, Inc. (“ReviMedia”), located at 44 Wall St., Suite 505, New York NY 10005, and the buyer identified in the Insertion Order (“Buyer”) (also individually referred to herein as a “Party” and collectively as the “Parties”). This Purchase Agreement, together with the Insertion Order (“IO”), constitutes the “Agreement.” The Agreement shall be effective as of the earlier of the date of the last signature below, the Campaign Launch Date listed in the IO, or the date of the last signature on the IO (the “Effective Date”). The Agreement sets forth the Parties’ rights and obligations with respect to the Campaigns identified in the IO. If any term in this Purchase Agreement conflicts with the terms and conditions set forth in the IO, the IO shall control.

1. DEFINITIONS

1.1 “Advertisements” means the advertising content generated by Advertiser’s servers in response to a query from ReviMedia’s servers for display on the ReviMedia Advertising Network. Advertisements shall consist of one or more of the following: graphics, textual, video, interstitial, or other formats expressly approved by ReviMedia.

1.2 “Confidential Information” means any and all information, whether provided in writing, orally, visually, electronically or by other means, related to the products, services and/or business of a party and is treated as confidential or secret by the party (that is, it is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its secrecy) including, but not limited to, the terms and conditions of this Agreement. Confidential Information for the purposes of this Agreement shall include information that has been disclosed to the disclosing party by a third party and which the disclosing party is obligated to treat as confidential or secret. Notwithstanding the foregoing, “Confidential Information” shall not include information (i) already lawfully known to or independently developed by the receiving party as evidenced by its written records, (ii) disclosed in published materials without breaching any confidentiality obligations, (iii) generally known to the public, or (iv) lawfully obtained from any third party without any obligation of confidentiality.

1.3 “End User” means visitors to the website(s) participating in the ReviMedia Advertising Network.

1.4 “Intellectual Property Right(s)” means present or future patent rights, copyrights, moral rights, trade secrets, know-how, trademarks, trade names, logos, service marks, and any other intellectual property right recognized in any country or jurisdiction of the world (including any registration or application for any of the foregoing).

1.5 “Publisher” means the entity that directs End Users to the ReviMedia Advertising Network and any affiliated entities through which Publisher directs End Users to the ReviMedia Advertising Network.

1.6 “ReviMedia Advertising Network” means the websites on which ReviMedia displays Advertisements, including advertisements from parties other than Advertiser.

2. APPOINTMENT AND GRANT OF LICENSES

2.1 Appointment. Advertiser hereby appoints ReviMedia, and ReviMedia hereby accepts such appointment and agrees to act, as a non-exclusive distributor of the Advertisements on the ReviMedia Advertising Network.

2.2 License to ReviMedia. Advertiser grants ReviMedia a worldwide, limited, non-exclusive, non-transferable right to use, publicly perform and display, reproduce, and distribute the Advertisements, in electronic form only, for the purpose of displaying the Advertisements to End Users on the ReviMedia Advertising Network.

2.3 License to Advertiser. ReviMedia grants Advertiser a limited, non-exclusive, non-transferable right to integrate and use the ReviMedia Technology (as defined herein) solely for the purposes of, and in accordance with, the terms of this Agreement.

3. ADVERTISER OBLIGATIONS

3.1 Advertiser shall be responsible for all support and maintenance services for the Advertisements.

3.2 Advertiser shall exercise commercially reasonable efforts to deliver the Advertisements in response to requests from ReviMedia’s servers; provided, however, that ReviMedia shall have the right, in its sole discretion, to refrain from delivering any Advertisement requested to be delivered by Advertiser.

3.3 Advertiser agrees not to resell, market, or transfer any consumer data obtained under this Agreement to any third party unless expressly permitted to do so by ReviMedia in writing.

4. REVIMEDIA OBLIGATIONS

4.1 ReviMedia shall integrate the Advertisements supplied to it by Advertiser into the ReviMedia Advertising Network.

4.2 ReviMedia shall exercise commercially reasonable efforts to detect and prevent fraud within the ReviMedia Advertising Network. Fraud is defined herein as any payable action (e.g., End User opt-in) (a) generated via “bots,” “spiders,” or other automated processes or mechanisms, or (b) that occurs as a result of auto spawning of browsers or automated redirects. Notwithstanding the foregoing, in the event that Advertiser alleges fraudulent actions on the ReviMedia Advertising Network, Advertiser must provide ReviMedia with the following: (i) End User IP address per each suspected fraudulent payable action; (ii) the reason for suspected fraud per conversion; and (iii) full lead/sale details of all the fields that were completed and provided to the Advertiser in connection with suspected fraudulent conversion provided in an unlocked excel worksheet. Advertiser must submit a fraud notice per each suspected fraudulent conversion, within not more than three (3) days from the end of each month in which the alleged frauds were committed. Any fraud claims submitted after the aforesaid period will automatically expire and be deemed void. ReviMedia will not be required to consider any fraud claims presented to it unless it receives all the required evidence to determine whether such actions constitute “fraud” as defined herein.

4.3 Advertiser understands and accepts that it is not commercially reasonable for ReviMedia to monitor all websites within the ReviMedia Advertising Network for appropriate content. Accordingly, ReviMedia will not be held responsible for the content of any website in the ReviMedia Advertising Network. If Advertiser determines that any website in the ReviMedia Advertising Network harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with websites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, ReviMedia shall use commercially reasonable efforts to remove Advertisements promptly following Advertiser’s notice thereof to ReviMedia.

5. PRIVACY; SECURITY

5.1 Advertiser Privacy and Security Obligations. Without limiting Advertiser’s other obligations under this Agreement, with respect to Advertiser’s use of the ReviMedia Advertising Network, Advertiser shall implement and observe standards of privacy and confidentiality for the collection, use, and sharing of any End User data that are in accordance with industry standard practices and at least as stringent as those contained in the ReviMedia Privacy Policy, provided at http://www.ReviMedia.com/terms/privacy-policy, which may be amended from time to time. If Advertiser collects any personally identifiable information directly from any End User, Advertiser shall make it clear to End Users that the information is being collected directly by Advertiser and not by ReviMedia, and Advertiser shall post a clear and conspicuous link to Advertiser’s privacy policy at the point such information is collected. Additionally, Advertiser shall implement security technology that is effective at restricting unauthorized access to and use of the ReviMedia Advertising Network. Advertiser shall, at all times, comply with all applicable privacy laws in its use of the ReviMedia Advertising Network.

5.2 ReviMedia Data Usage. ReviMedia may use aggregate, anonymized data derived from Advertiser’s use of the ReviMedia Advertising Network for any lawful purpose.

6. REPRESENTATIONS AND WARRANTIES

6.1 By Both Parties.

(a) Authority. Each party warrants and represents to the other that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction above stated, with full power and authority to carry on its business as now conducted and to enter into and carry out the terms of this Agreement; (ii) it has obtained all necessary corporate and other authorizations and approvals required for the execution and delivery of this Agreement; (iii) this Agreement constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, subject to the laws of bankruptcy and laws of general applicability relating to or affecting enforcement of creditors’ rights, and judicial discretion in the application of principles of equity; and (iv) the execution, delivery and performance of this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party or breach of any third party right.

(b) Employees and Contractors. Each party warrants and represents that it has and shall obtain nondisclosure, assignment of rights and other appropriate agreements with its employees and contractors sufficient to protect the other party’s Confidential Information, and sufficient to allow it to provide each party with the rights and licenses provided for herein, such agreements to contain terms and conditions no less restrictive than those set forth herein.

6.2 By Advertiser.

(a) Advertisements. Advertiser represents and warrants that all Advertisements: (i) comply with all applicable laws, statutes, ordinances and regulations and the products/services shall conform to the functionalities, warranties and/or design related information or specification as may be displayed in the Advertisement(s) or otherwise notified to End Users and shall be free from defects relating to manufacturing, improper testing, design, quality of service, or any breach of warranty regarding the products; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, Intellectual Property Rights, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; (iii) do not contain content that is obscene, defamatory, libelous, or slanderous, (iv) are not hate-related, (v) are free of any virus or other any other device that could impair or injure any person, or entity, computer equipment or software; (vi) do not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, or trade disparagement; (vii) do not contain any misrepresentations or content that is defamatory or violates any rights of privacy or publicity; (viii) do not contain any child pornography or link to such content; (ix) do not participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam).

(b) General. Advertiser represents and warrants that (i) all information provided by Advertiser to ReviMedia in connection with this Agreement will be current, true, accurate, and complete and, with regard to information Advertiser provides to ReviMedia, Advertiser will promptly notify ReviMedia of any changes to such information; (ii) Advertiser will monitor and be responsible for its use of the ReviMedia Advertising Network and compliance with the terms of this Agreement; (iii) Advertiser will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by Advertiser in connection with the ReviMedia Advertising Network, and Advertiser’s related development efforts, including, but not limited to, any related development efforts, network and server equipment, Internet service(s), or any other hardware, software, or services used by Advertiser in connection with Advertiser’s use of the ReviMedia Advertising Network; (iv) Advertiser will not act in any manner that conflicts or interferes with any existing commitment or obligation Advertiser has, and no agreement previously entered into by Advertiser will interfere with Advertiser’s performance of Advertiser’s obligations under this Agreement; (v) Advertiser owns or is authorized to use the Advertisements in connection with the ReviMedia Advertising Network and such Advertisements do not infringe the Intellectual Property Rights of any third party; and (vi) Advertiser has not and will not infringe third party Intellectual Property Rights or rights of privacy or publicity.

7. REVIMEDIA’S TECHNOLOGY

7.1 ReviMedia Code. The ReviMedia Code enables tracking of different performance models such as Cost Per Click (“CPC”), Cost Per Lead (“CPL”), and Cost Per Acquisition (“CPA”). The ReviMedia Code will not be modified from original format without prior written consent from ReviMedia.

7.2 Tracking Technologies. Advertisers are provided with integration alternatives such as modified pixel tracking technology, data transfer tracking for interim processing by Advertiser, and rapid integration with standard pixel tracking technology.

(a) Advertisers may utilize the “server side integration” method of tracking in addition to embedding a (for auditing & optimization purposes) that automates the reporting of commissions to ReviMedia. “Server side integration” means that the Advertiser records conversions on its servers and then reports the data to ReviMedia. If Advertiser is approved for the server side integration method, Advertiser agrees to generate an HTTP / HTTPS request to ReviMedia in accordance with the technical requirements provided by ReviMedia. The HTTP / HTTPS request shall be generated no later than an hour following the conversion. Advertiser represents and warrants that all server side integration reporting is accurate and correct.

(b) In ReviMedia’s sole discretion, Advertiser may utilize the “scheduled data transfer” method of tracking in addition to embedding a script pixel (for auditing purposes) that automates the reporting of conversions to ReviMedia.

(c) “Manual Data Transfer” is a method of reporting in which an Advertiser records conversions on its servers and then submits reporting data to ReviMedia. If Advertiser is approved for this method, Advertiser agrees to make a daily report of performance data to ReviMedia in accordance with the formatting, security, and transfer requirements as specified by ReviMedia. In no event shall data be transferred later than 3 business days after the transaction. ReviMedia may, at its discretion, require Advertiser to use pixel tracking.

(d) Ad Serving; Tracking Code Maintenance. Advertiser agrees to comply with ReviMedia’s tracking code integration and maintenance requirements as provided by ReviMedia from time to time.

8. OWNERSHIP OF INTELLECTUAL PROPERTY

8.1 Advertiser Ownership. Notwithstanding any other provision within this Agreement to the contrary, Advertiser retains ownership of all right, title to, and interest in any and all Intellectual Property Rights, developed, owned, or created by Advertiser without access to or use of any Intellectual Property Rights of ReviMedia, in the Advertisements (“Advertiser Rights”). Except for the licenses set forth in this Agreement, nothing in this Agreement grants to ReviMedia any rights to any of the foregoing.

8.2 ReviMedia Ownership. Notwithstanding any other provision within this Agreement to the contrary, ReviMedia retains ownership of all right, title to, and interest in any and all Intellectual Property Rights developed, owned, licensed or created by ReviMedia without access to or use of any Intellectual Property Rights of Advertiser, in the ReviMedia Advertising Network and the ReviMedia Technology, any customer lists, improvements, enhancements, or modifications thereto made by ReviMedia or any third party (“ReviMedia Rights”). To the extent such material is in Advertiser’s possession or control, Advertiser will take all reasonable and necessary measures to protect the ReviMedia Rights. Nothing in this Agreement grants to Advertiser any rights to any of the foregoing.

8.3 No Reverse Engineering. In no event shall Advertiser disassemble, decompile, or reverse engineer the ReviMedia Technology or any ReviMedia Intellectual Property (collectively, “ReviMedia Property”), or permit others to do so. Disassembling, decompiling and reverse engineering include, without limitation: (i) converting the ReviMedia Property from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the ReviMedia Property by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the ReviMedia Property’s operation and creating the original source code or any approximation thereof by, for example, studying the ReviMedia Property’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the ReviMedia Property that could be construed to be reverse engineering, disassembling, or decompiling.

8.4 Feedback. Advertiser may provide ReviMedia with feedback on the ReviMedia Advertising Network or ReviMedia Technology, including, without limitation, feedback on bugs and faults within or relating to the ReviMedia Advertising Network or suggestions for improvements or other changes to the ReviMedia Advertising Network. Advertiser hereby agrees that ReviMedia shall own all such feedback, ideas, concepts, and changes to any portion of the ReviMedia Advertising Network developed or identified in the course of or as a result of Advertiser’s use of the ReviMedia Advertising Network (“Feedback”), and Advertiser hereby assigns to ReviMedia all of Advertiser’s right, title, and interest thereto. Advertiser will not knowingly provide ReviMedia with any Feedback subject to any third party Intellectual Property Rights.

9. CONFIDENTIALITY

9.1 Confidential Information. Each party acknowledges that Confidential Information under its control may be disclosed to the other party during the performance of this Agreement. Each party agrees that it shall use the other’s Confidential Information solely for purposes of performing its obligations under the Agreement and to take reasonable steps, which shall include, at a minimum, the steps it takes to protect its own Confidential Information, to prevent the duplication or disclosure of the other’s Confidential Information, other than by or to its employees or agents who must have access to the Confidential Information to perform such party’s obligations hereunder, who have each agreed or shall each agree to be bound by confidentiality obligations no less restrictive than the terms of this Section 9. Each party agrees that it shall not be a breach of this Section 9 to disclose the other party’s Confidential Information that is required to be disclosed by law, regulation or order of any governmental body or regulatory authority; provided, however, that such disclosing party must first give written notice of such required disclosure to the other party, make a reasonable effort, at the other party’s sole cost and expense, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which disclosure is required and allow the disclosing party to participate in the proceeding. The confidentiality obligations set forth in this Agreement shall remain in effect until this Agreement is terminated by either party. Notwithstanding the foregoing, the confidentiality obligations contained herein shall survive with respect to Confidential Information disclosed before the effective date of termination or expiration of this Agreement. A recipient’s duty to protect Confidential Information expires two (2) years from the date of disclosure.

9.2 Return of Confidential Information. Upon termination of this Agreement, or upon disclosing party’s request, the receiving party shall promptly return or destroy all manifestations of Confidential Information of the disclosing party and so certify to the disclosing party in writing.

9.3 Remedies. Each party acknowledges that any breach of its confidentiality obligations would cause irreparable injury to the other party for which monetary damages would not be an adequate remedy. Accordingly, in addition to other available remedies, in the event of such a breach, the non-breaching party shall be entitled to appropriate injunctive relief and other equitable remedies without the posting of any bond.

9.4 Confidentiality of Agreement. Each party agrees that the existence of this Agreement and the terms and conditions of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) as required by law; (ii) as part of filings with any court or governmental entities, including without limitation the IRS and SEC, or with national securities exchanges; (iii) to legal counsel of the parties; (iv) under the terms and conditions of a non-disclosure agreement to accountants, banks, and financing sources and their advisors; (v) in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) under the terms and conditions of a non-disclosure agreement, in connection with an actual or proposed merger, acquisition, or similar transaction.

10. PAYMENT

10.1 All Advertisers must undergo a credit check by ReviMedia and prepay for all campaigns for the first ninety (90) days of the Term. If Advertiser’s credit is deemed acceptable, in ReviMedia’s sole discretion, after the first ninety (90) days, Advertiser will be permitted to pay NET 30 End Of Month; provided, however, that if Advertiser’s balance exceeds $50,000 at any time, Advertiser must pay NET 15 End of Month. If Advertiser’s credit is not deemed acceptable by ReviMedia, Advertiser will continue to pay in advance for all campaigns.

10.2 Advertiser shall pay ReviMedia per payment metric (CPC, CPL, CPA) as specified in the applicable Insertion Order. Advertiser shall promptly compile, calculate, and electronically deliver data required to determine ReviMedia billing and compensation, but ReviMedia’s calculations are final and binding in the event of a dispute.

10.3 Billing invoices to Advertiser will be dated on the first day of the billing month and, unless Advertiser is required to pay in advance, payment will be due on the last day of the billing month. If Advertiser is late in compiling, calculating, and electronically delivering data, ReviMedia will prepare billing invoices when such data is received and will backdate resulting invoices to the first day of the billing month. Backdated invoices will be due on the last day of the billing month. Questions regarding any data or bills provided by ReviMedia must be submitted in writing within ten (10) days of receipt, or the data or bills will be deemed accurate and accepted as presented by ReviMedia.

10.4 All balances will be paid in U.S. dollars. All payments shall be based on actual figures supplied by Advertiser and revised, accounted, and audited by ReviMedia. In the event that Advertiser’s payment becomes past due, Advertiser agrees that monthly interest in the amount of 1.5% shall accrue to Advertiser’s past-due balance.

10.5 Audit. Advertiser agrees that at all times during the term of this Agreement it shall maintain accurate books and records relating to any revenue generated therefrom and any payments due ReviMedia associated therewith. Advertiser agrees that ReviMedia, or any designee of ReviMedia that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of this Agreement to examine, inspect, audit, and review all such books, records, and any source documents used in the preparation thereof during normal business hours upon written notice to Advertiser at least five (5) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at ReviMedia’s sole cost and expense and shall be strictly limited to those books and records that relate to information pertinent to revenue generated under this Agreement. Advertiser shall immediately pay ReviMedia the amount of any underpayment revealed by such audit, plus interest calculated at rate of one and one-half percent (1.5%) per month from the date such underpaid amount was due until the date of payment to ReviMedia. Notwithstanding the foregoing, if a disparity of more than five percent (5%) is found in the amount paid to ReviMedia, then the audit shall be at the sole cost and expense of Advertiser.

11. LIABILITY POLICY

11.1 Limited Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, EXCEPT IN CONNECTION WITH A PARTY’S CONFIDENTIALITY OBLIGATIONS, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, FRAUD AND ADVERTISER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND RELIANCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF PROFITS, LOSS OF GOODWILL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT IN CONNECTION WITH A PARTY’S CONFIDENTIALITY OBLIGATIONS, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, FRAUD OR ADVERTISER’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT EXCEED THE TOTAL NET REVENUE ACTUALLY PAID TO REVIMEDIA UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE LIMITATIONS OF THIS SECTION 11.1 SHALL APPLY EVEN IF EITHER OR BOTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

11.2 Disclaimer of Representations and Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. REVIMEDIA DOES NOT WARRANT THAT USE OF THE ADVERTISEMENTS WILL BE UNINTERRUPTED OR ERROR-FREE. ADVERTISER ACKNOWLEDGES THAT REVIMEDIA DOES NOT AND CANNOT GUARANTEE THE CONTENT OR RELEVANCE OF ANY WEBSITE IN THE REVIMEDIA ADVERTISING NETWORK, OR THE SUBJECT MATTER OR LEGALITY OF ANY SUCH WEBSITE.

11.3 No ReviMedia Service Operability Guarantee. ReviMedia does not guarantee the ReviMedia Advertising Network will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of Advertiser’s equipment, systems or local access services; (iii) for previously scheduled maintenance; or (iv) relating to events beyond ReviMedia’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where ReviMedia’s servers are located or co-located.

11.4 Indemnification.

(a) By ReviMedia. ReviMedia agrees to indemnify, defend, and hold harmless Advertiser and its officers, directors, and employees against any third party claims, damages, and penalties, and all related costs and expenses (including reasonable attorneys’ fees) (collectively “Claims”) based on ReviMedia’s breach of any confidentiality obligations under this Agreement or caused by ReviMedia’s gross negligence or willful misconduct.

(b) By Advertiser. Advertiser agrees to indemnify, defend and hold harmless ReviMedia and its officers, directors, agents, and employees against any and all losses, liabilities, damages, and penalties, and all related costs and expenses (including reasonable attorneys’ fees)(collectively “Claims”) based on the Advertiser’s breach or alleged breach of any representation, warranty, or covenant in this Agreement, including any claim that Advertiser’s Advertisements are misleading or deceptive or that they violate a third party’s Intellectual Property Rights.

(c) Process. The party seeking indemnification (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of the Claim and provide reasonable assistance in connection with the defense and settlement thereof. The Indemnifying Party shall be entitled to control the defense and settlement thereof unless it fails to take up such defense within a reasonable period of time. The Indemnifying Party shall not arrive at a settlement which adversely affects the Indemnified Party without the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld, conditioned, or delayed. Failure to provide prompt notice shall not absolve the Indemnifying Party of its obligation to indemnify, provided however, it shall be excused from any incremental loss arising solely from such failure to notify.

12. TERM AND TERMINATION

12.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for one (1) year, unless earlier terminated as provided herein (“Initial Term”). After the Initial Term, the Agreement shall automatically renew for additional terms of one (1) year (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no later than thirty (30) calendar days before the end of the then-current Term of its intention not to renew the Agreement.

12.2 Termination. This Agreement may be terminated or suspended by either party immediately upon the occurrence of any of the following events: (i) the failure to cure a breach of a material provision of this Agreement within thirty (30) calendar days after receipt of written notice thereof from the non-breaching party; (ii) by ReviMedia for convenience at any time, upon ten (10) days written notice; (iii) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or any such proceeding is instituted against the other party and is not dismissed within sixty (60) calendar days; or (iii) if the other party ceases to do business, or otherwise terminates its business operations. This Agreement may be terminated or suspended by ReviMedia upon written notice if ReviMedia, in its sole discretion, determines that Advertiser has violated the content restrictions set forth herein.

12.3 Effect of Termination. Termination or suspension of this Agreement shall not release any party from the obligation to make payment to the other party for any unpaid amounts that are otherwise accrued under this Agreement prior to such termination. Any obligations, which expressly or by their nature are to continue after termination, suspension, cancellation, or expiration of the Agreement, shall survive and remain in effect after such occurrence.

13. GENERAL

13.1 Publicity and Press Releases. Neither party shall issue a press release regarding the existence of this Agreement or mentioning the other party without receiving from the other party written approval of the language in the press release, which approval shall not be unreasonably withheld; provided, however, that ReviMedia may disclose the existence of the business relationship with Advertiser without obtaining such approval.

13.2 Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venture, or agent of the other. Neither party has any authority to act on behalf of or to enter into any contract, incur any liability or make any representation on behalf of the other party. Neither party’s personnel shall be deemed to be the other party’s employees, and as such shall not by reason of this Agreement be entitled to participate in or to receive any benefit or right under any of the other party’s employee benefit plans.

13.3 Non-Circumvention. During the term of this Agreement and for a period of 180 days thereafter, Advertiser shall not engage, contract with, work with, license, or permit any person, firm, or entity to represent Advertiser in any performance-based advertising relationship with any Publisher within the ReviMedia Advertising Network unless a previously existing contractual relationship between Advertiser and such Publisher can be demonstrated to ReviMedia’s reasonable satisfaction. If Advertiser fails to comply with any requirements set forth in this section, because the resulting damages will be difficult to quantify, ReviMedia will be entitled to liquidated damages equal to fifty percent of the gross revenues resulting from sales conducted by Advertiser in violation of this paragraph in addition to any other remedies Smiley Media may have at law or in equity.

13.4 Assignment. Neither party may transfer or assign or permit the assumption of this Agreement or its rights or obligations under this Agreement without the prior written consent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, its successors and assigns.

13.5 Force Majeure. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.

13.6 No Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

13.7 Entire Agreement. This Agreement and all exhibits hereto constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. Neither party relied on any promises or representations, written or oral, of the other party in forming this Agreement, except for those expressly contained herein.

13.8 Amendments and Waivers. No changes or modifications to this Agreement or waivers of any provision of this Agreement shall be effective unless evidenced in a writing referencing this Agreement and signed for and on behalf of both parties.

13.9 Severability. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so this Agreement shall otherwise remain in full force and effect.

13.10 Notices. Except as provided elsewhere in this Agreement, both parties must send all notices under this Agreement in writing via overnight mail or email to the addresses set forth herein as the Advertiser and ReviMedia contacts. Notices shall be effective upon a facsimile confirmation, the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or three (3) days after the date of mailing.

13.11 Choice of Law; Attorneys’ Fees. This Agreement is governed by the laws of the State of New York, except that the conflict of law provisions of the State of New York will not apply. The exclusive forum for any action related to this Agreement will be in the state courts in New York, New York and, to the extent that federal courts have exclusive jurisdiction, in the U.S. District Court for the Southern District of New York. The parties consent to such venue and jurisdiction and agree to waive the personal service of any process upon them by agreeing that service may be effectuated by overnight mail (using a commercially recognized service) or by U.S. Mail with delivery receipt to the last address provided by each party hereto. A party that substantially prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs.