New Age Interactive Media, Inc., Advertiser Terms and Conditions These Advertiser Terms and Conditions, along with the information you (“you” or “your” means you, your company and agents, as applicable) provided at the Advertiser Area located at www.New Age.com (the “Login”) (collectively, the “Agreement”) are entered into by and between you and New Age Interactive Media, Inc. (“New Age”). This Agreement governs your use of New Age’s Advertising Products (the “Service”). You and New Age agree as follows: 1. The Advertising Products. Subject to these Advertiser Terms and Conditions, New Age will provide you with one or more of its Advertising Products. New Age may, in its sole discretion, discontinue any Advertising Product at any time without liability and/or notice to you. The Advertising Products, as applicable, will link or direct internet users to your landing pages and/or websites based on your keywords, ad content, ad information, and ad URLs (collectively, your “Ad”). You are solely responsible for your Ad, whether generated by or for you; and all services and products which are advertised in the Ad. You understand and agree that your Ad may be placed on (a) any content or property provided by New Age; and (b) any other content or property provided by a third party upon which New Age places advertisements (a “Partner”). New Age reserves the right to reject, cancel or remove any Ad at any time. With respect to the CPView Advertising Product, you understand and agree that your Ad will be displayed via popups and pop-unders to internet users which have downloaded third party software applications onto their computers (“Adware”). 2. The Service. New Age will use commercially reasonable efforts to provide the Service to you 24 hours a day, 7 days a week. You agree and acknowledge that from time to time the Service may be inaccessible or inoperable for any reason, including without limitation (equipment malfunction, periodic maintenance procedures or repairs that New Age may undertake from time to time, or any causes beyond the control of New Age). 3. License. You hereby grant to New Age and its Partners, all rights (including but not limited to, all trade names, trademarks, service marks and copyrights) in the Ad needed to operate the Service (including but not limited to any rights needed to copy, use, store, publicly display, modify, distribute, perform and transmit your Ad). 4. Representations and Warranties. You represent and warrant that (a) you are at least 18 years of age; (b) you have the full right, power and authority to enter into this Agreement; (c) by entering into this Agreement you are not breaching any duty or obligation to any third party; (d) the person executing the Agreement is your duly authorized representative and authorized to bind you to the terms of the Agreement; (e) to the best of your knowledge, your Ad and any service or product advertised in your Ad, complies with applicable law and does not contain any content that infringes any intellectual property, contract or tort right of any third party or material or link that is abusive, obscene, defamatory, harassing, grossly offensive, vulgar, threatening, misleading, false or malicious and does not reflect poorly on or tarnish the reputation or
goodwill of New Age; (f) your Ad does not contain any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; (g) you will not engage in, or cause others to engage in, spamming, or improper malicious, fraudulent, automated (as determined by New Age) clicking, impressions, inquiries, conversions or other actions. Breach of any of the above representation and warranties may result in immediate termination of this Agreement or suspension of your use of the Service without notice. 5. Payment. Before you access the Service, New Age will charge the credit card you provided in the Login an initial payment in the amount you request, but no less than $25 (USD) (“Initial Payment”). Upon confirmation of your Initial Payment, New Age will provide you with access to the Service. You agree to compensate New Age for all impressions, conversions, clicks or other actions (collectively, “Actions”) generated by the Service (“Payment”). Your Payment is based solely on New Age’s measurement of Actions for the applicable Advertising Product, unless otherwise agreed to between the parties in writing. You authorize New Age to receive Payment by credit card for each subsequent 30 day period based upon the Actions recognized by New Age and the parameters you request in the Login (“Recurring Payment”). You agree that no additional notice or consent is required before New Age charges your credit card for each Recurring Payment. The Initial Payment is non-refundable. You will promptly notify New Age in writing of any change in your information provided in the Login at advertisers@New Age.com. Late Payments bear interest at the rate of 1.5% per month or the highest rate permitted by law, if less. In New Age’s sole discretion, it may provide you with a refund. Refunds will only be provided in the form of a credit to be used to offset a future Recurring Payment. You agree to submit any disputes about any Recurring Payment in writing to New Age within 15 days from the date you owe the Recurring Payment, otherwise you waive such dispute and the amount of the Recurring Payment will be final and not subject to challenge. All payments pursuant to this Agreement shall be in United States Dollars.
6. Disclaimer; Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NEW AGE DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEW AGE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES NEW AGE MAKE ANY WARRANTY AS TO THE PERFORMANCE OF ANY RESULTS THAT MAY BE OBTAINED BY YOUR USE OF THE SERVICE OR ANY ADVERTISING PRODUCT. IN NO EVENT SHALL NEW AGEEITHER PARTY BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST REVENUE, INTEREST, GOOD WILL, LOST DATA, ANY WEBSITE OR NETWORK DOWNTIME, COST OF PROCURING SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, THAT ARE RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT (INCLUDING WITHOUT LIMITATION TO NEGLIGENCE) OR ANY LEGAL THEORY EVEN IF NEW AGETHE OFFENDING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NEW AGENEW AGENEW AGEYou understand that third parties may generate Actions on your Ad for improper purposes (“Improper Actions”) and you accept said risk. New Age’s exclusive liability and your exclusive remedy for suspected Improper Actions is for you to make a claim for a refund in a form of a credit to be applied against a future Recurring Payment. Any refund for suspected Improper Actions are within New Age’s exclusive discretion. With respect to the CPView Advertising Product, you understand and acknowledge that you Ad will be displayed via Adware which is not owned, controlled, distributed, maintained or operated by New Age (“Third Party Operator”). UNDER NO CIRCUMSTANCES, IS NEW AGE LIABLE TO YOU FOR THE ACTIONS OF A THIRD PARTY OPERATOR. Your exclusive remedy, for suspected improper or invalid actions by a Third Party Operator, is for you to make a claim against the Third Party Operator. Under no circumstances will New Age indemnify you from any loss, damages, costs and fees, including reasonable attorney’s fees arising from or relating to your claim against a Third Party Operator or any action brought by an internet user arising from or relating the actions of a Third Party Operator or your use of CPView. You assume all risks associated with the use of Adware to display your Ad. 7. Indemnification. Irrespective of the limitations of liability under Section 6 above, You agree to indemnify, hold harmless and defend New Age and its Partners, directors, officers, employees and agents from any liability, loss, damages, claims, or causes of action, including reasonable attorneys fees arising from or relating to: (a) a breach of your warranties and/or obligations under this Agreement; and (b) any third party claims relating to your Ad and/or any service or product advertised in your Ad. 8. Advertising Agencies. If you are an advertising agency or any other entity representing an advertiser (“Ad Agency”), this Section applies, and in such case, in the Agreement, “you” and “your” means Ad Agency together with the advertiser. An “advertiser” mean entities which are enrolled in the Service by you. Ad Agency represents and warrants that: (a) it is the authorized agent of advertiser and has the legal authority to enter into this Agreement on behalf of the advertiser; and (b) Ad Agency, by enrolling the advertiser in the Service, the advertiser is also entering into the Agreement with New Age. Without limiting any provision in the Agreement, Ad Agency and advertiser shall be jointly and severally liable for all payment obligations pursuant to Sections 5 and 7 you hereby waive any obligation that may require New Age to proceed against one or more of you prior to proceeding against any others who may also be liable. 9. Cancellation. You may cancel the Service online through the Login or by providing New Age with 72 hours written notice of cancellation, including without limitation, by electronic email to advertiser@New Age.com. New Age will use its best efforts to cancel the Service within 72 hours after receipt of your written notice to cancel the Service. You are responsible to pay for Ads published up to 72 hours after New Age
receives your written notice of cancellation. New Age, in its sole discretion, may cancel the Service at any time. Sections 2, 3, 4, 5, 6, 7, 8, 10 and 11 will survive cancellation of this Agreement. 10. Relationship; Assignment; Severability; Modification. The relationship of the parties under this Agreement is one of independent contractors and no agency, partnership, joint venture, or similar relationship is created hereby. You may not assign or delegate any or all of your rights, obligations, and duties under the Agreement without the prior written consent of New Age, which may be withheld in New Age’s sole discretion. If any clause or provision in the Agreement is determined to be invalid or unenforceable, it will not affect the validity of any other clause or provision the Agreement, which will remain in full force and effect. New Age reserves the right to modify the terms of the Agreement at time, without notice to you. If you continue to use an Advertising Product after any such changes, your continued use will constitute your consent to such modifications. You will notify New Age immediately to any change to the information provided in the Login. 11. Miscellaneous. ALL CLAIMS ARISING OUT OR RELATING TO THIS AGREEMENT, AN ADVERTISING PRODUCT OR THE SERVICE SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL AND STATE COURT OF LOS ANGELES COUNTY CAILIFORNIA, USA, AND YOU CONSENT TO PERSONAL JURISDICTION IN SAID COURTS. THIS AGREEMENT IS GOVERNED BY CALIFORNIA LAW, EXCEPT FOR ITS CONFLICTS OF LAW PRINCIPLES AND SHOULD BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT. Any rights not expressly granted herein are reserved by New Age. The parties waive the personal service of any process upon them and agree that service may be effected by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. New Age shall be entitled to recover all reasonable costs of collection (including attorneys' fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from You. New Age controls and operates the Service from its offices in the U.S.A. and access or use where illegal is prohibited. The Agreement constitutes the entire agreement between the parties hereto relating to this specific subject matter thereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and New Age. The term and condition of this Agreement are confidential. Each party shall not disclose the terms and conditions of this Agreement except as necessary to comply with a government rule, law or regulation. Any notices to New Age must be sent New Age Interactive Media, Inc., Legal Counsel, 1158 26th Street, Suite 464, Santa Monica, California 90403, via confirmed facsimile with a copy sent first class mail or air mail or overnight courier and are deemed given upon receipt. Notice to you may be given to you by electronic email to the address you provided in the Login and is deemed received when sent. The failure by New Age to exercise or enforce any of the terms or conditions of this Agreement shall not constitute a waiver of New Age's rights hereunder to enforce each and every term and condition of this Agreement. You acknowledge that the Service, including, without limitation, all trade names, trademarks, service marks, content, text images, software, media and other material contained therein,
is a work or collective work, proprietary to New Age, protected under copyright, trademark and other intellectual property laws.