Terms and Conditions

PERFORMICS INSERTION ORDER TERMS AND CONDITIONS (v01-07)

These Performics Insertion Order Terms and Conditions (v01-07) ("Terms and Conditions") supplement the Insertion Order made between Performics Inc. ("Performics") and the party executing the Insertion Order (the "Distribution Partner"). These Terms and Conditions likewise supplement all other Insertion Orders subsequently executed by Distribution Partner. These Terms and Conditions, as well as any Marketer Specific Terms (as defined below), supersede and replace any and all prior agreements entered into by and between Performics and Distribution Partner and shall control all existing Insertion Orders. Marketer Specific Terms are terms and conditions that may be required by an individual Marketer. Such Marketer Specific Terms shall only be binding upon Distribution Partner to the extent that the Marketer Specific Terms are set forth in writing in an Insertion Order executed by Distribution Partner or are included in the ConnectCommerce™ interface and agreed to by Distribution Partner. To the extent that any Marketer Specific Terms conflict with these Terms and Conditions, the Marketer Specific Terms shall control. Terms not defined in these Terms and Conditions shall have the meanings set forth in the Insertion Order. The Insertion Order, all subsequently executed Insertion Orders and these Terms and Conditions are collectively referred to as the "Agreement".

RECITALS:

(a) Distribution Partner is the owner or authorized operator or representative of the Internet web site(s), email lists, other segments or spaces on such web site(s) and web-based services upon which Marketer’s Offers (as defined below) may be displayed in connection with and pursuant to the terms of this Agreement (collectively, the "Distribution Media" and individually, a "Distribution Medium"). Distribution Partner may be referred to as Affiliate, Publisher or Web Publisher in other agreements entered into by Performics.

(b) Performics operates a performance-based marketing network of online distribution channels (which includes the Distribution Media, other web sites, email lists, desktop applications and wireless services) (the "Network") for which it has solicited the Marketer set forth in the Insertion Order (as well as other advertisers, merchants, advertising agencies or others) to place performance-based advertising offers (the "Offer") in the form of banners, textual links, data feeds, transactional ads or other relevant media with respect to Marketers' products and services ("Products"). Marketer may sometimes be referred to as Client or Advertiser in other agreements entered into by Performics.

(c) This Agreement governs Distribution Partner's inclusion in the Network and the display of Marketer’s Offer on the Distribution Media.

1. Term.

(a) This Agreement shall commence upon signing and shall continue for a period of one-year (the "Term"). Thereafter, this Agreement shall automatically renew upon these same terms and conditions for successive one-year periods unless earlier terminated as provided for below. Each Offer displayed by Distribution Partner shall be displayed for the period of time set forth in the Insertion Order relevant to each particular Offer. Either party may immediately terminate this contract if any change occurs in any applicable laws or regulations that would, in that party’s reasonable opinion, render the party’s performance hereunder illegal or otherwise subject to legal challenge. Either Party may immediately terminate this Agreement if the other party is in breach of any provision or obligation set forth in this Agreement or any other Insertion Order to which Distribution Partner and Performics are a party.

(b) Notwithstanding the foregoing, either party may terminate this Agreement at any time for any reason upon thirty (30) days prior written notice to the other party.

(c) The rights and obligations contained in Sections 3, 5(e), 6, 7, 8 and 9 of this Agreement shall survive the termination or expiration of this Agreement.

2. Acceptance

The Distribution Partner agrees to display Marketer’s Offer as provided by Performics pursuant to the terms and conditions set forth in this Agreement, any applicable Marketer Specific Terms and each relevant Insertion Order. A “Campaign” means Distribution Partner’s display of a Marketer’s Offer pursuant to a specific Insertion Order. Distribution Partner shall not alter or modify the Offer as provided by Performics or Marketer. Distribution Partner agrees and acknowledges that Marketer may, in its sole discretion, direct Distribution Partner to immediately cease the display of any Offer. Upon receiving such notice in writing (which may be via email), Distribution Partner shall immediately remove the Offer from its Distribution Media. In the event that any Marketer (or Performics on behalf of any Marketer) directs Distribution Partner to cease display of that Marketer’s Offers, Distribution Partner may not subsequently display any of that Marketer’s Offers directly through Performics or indirectly through another Performics Distribution Partner without express written approval from the Marketer and/or Performics.

3. Payment For Services

(a) Performics agrees to remit to the Distribution Partner a fee (the "Fee") payable in the amounts and on the terms as set forth in the Insertion Order for all Offers placed with the Distribution Partner which result in the sale of Products to a Qualified Customer (as defined below) or the receipt by Marketer of a registration from a Qualified Customer on the Marketer’s Web site. All payment obligations will be based upon tracking and reporting provided by Performics.

(b) As may be applicable to any particular Insertion Order: "Net Monthly Sales" means the net dollar amount of Products sold to Qualified Customers during a calendar month. Net Monthly Sales are calculated exclusive of fraudulently placed orders, returns, transportation and packaging costs, insurance, duties, taxes and other governmental charges, and rebates actually granted by Marketer. A "Qualified Customer" means any individual or entity that is tracked by Performics’ proprietary technology, ConnectCommerce™, and who, within the period of time as set forth in the Insertion Order, clicks through to the Marketer Site via hyperlinks contained within any Offer displayed in accordance with this Agreement and either (i) purchases Products from the Marketer Site or (ii) submits a completed registration form which contains information previously unknown to Marketer and which is approved by Marketer. In the event an individual or entity visited more than one Distribution Partner of Performics prior to purchasing Products from or completing a registration form on Marketer's Web site, the Distribution Partner operating the last distribution channel from which such individual or entity clicked through shall be the only party entitled to receive a Fee.

(c) Performics shall pay the Fee to the Distribution Partner within fifteen (15) days after the end of the month in which Performics has received payment from the Marketer for such Fees. Performics shall not be obligated to make any payment of Fees to Distribution Partner until (1) it has received payment for such Fees from the Marketer and (2) the aggregate amount of Fees equal or exceed fifty dollars ($50.00). Any earned but unpaid Fees shall carry over to the next regularly scheduled payment period.

4. Responsibilities of Performics

Performics covenants and agrees to use its commercially reasonable best efforts: (a) to provide, monitor and maintain the necessary technology applications required to link the Distribution Partners to the Marketer Web sites ("Performics Technology") and to track the relevant actions as set forth in the Insertion Order. Performics Technology shall include the use of tags in HTML/Java or other appropriate languages to enable Performics to serve or provide Offers to the Distribution Partner; (b) to provide the Distribution Partner with product descriptions, GIF or JPEG Images, other product attributes (including the SKU’s), product availability, order status, and shipment confirmation (each in a mutually acceptable format) for those Marketers that agree to provide Performics and Distribution Partner with such information; and (c) to provide the Distribution Partner with real-time access to records that will allow it to monitor the volume of Offers delivered by the Distribution Partner and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole property of Performics.

5. Responsibilities of the Distribution Partner

(a) The Distribution Partner agrees and warrants that it shall (i) only place Offers on the Distribution Partner's Distribution Media and (including Web pages where any Offer appears) and only in accordance with the terms set forth in this Agreement and any applicable Marketer Specific Terms; (ii) maintain its customer list in a manner that conforms with best practices of permission based solicitation and privacy policies; (iii) position the Offers on each Distribution Media (including any Web page where any Offer appears) in such a manner to assure that the Offers are fully and clearly visible; (iv) upon notification, update Offers in accordance with each Marketer’s program specifications

(b) Distribution Partner agrees and warrants that it shall not engage in any of the following prohibited activities: (i) violate any applicable law or regulation; (ii) promote or conduct any illegal or fraudulent activity through the Distribution Media or any site linked to the Distribution Media; (iii) send or cause to be sent unsolicited advertising e-mails; (iv) display obscene, offensive, violent or misleading content on the Distribution Media or any site linked to the Distribution Media; (v) provide or allow any incentive based promotion that provides compensation to Qualified Customers, unless specifically authorized by Marketer; (vi) engage in any pop-up or pop-under advertising provided, supported or involving any third party to generate impressions, clicks, or transactions; (vii) use any cookie, device, program, robot, iframes, hidden frames, popup windows or any other operation or process that interferes with Performics’ ability to properly identify and track Qualified Customers; (viii) interfere with or seek to improperly influence the referral of an end user to a Marketer’s Web site; (ix) automatically replace or alter any component of the Performics Technology that results in a reduction of compensation earned by Performics or another Distribution Partner; (x) use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end user; (xi) utilize the Performics Technology in any manner that alters, changes, substitutes or modifies the content of another Distribution Partner’s Web site; (xii) use the Performics Technology with other software, whereby the installation and de-installation is not obvious, easy or complete. Licensing and terms of all software downloads and applications of any type must be clearly presented to and accepted by the end user. Software that utilizes the Performics Technology must be clearly marked in such a manner that the end user can identify the Distribution Partner’s software with an associated behavior that occurs on the end user’s computer, and receive visible notification of such behavior. In addition to any other remedies that may be available, in the event that Distribution Partner engages in any such prohibited activities, Performics or Marketer may immediately terminate any and all Campaigns.

(c) Distribution Partner shall not reproduce, distribute, republish, sub-license or otherwise make the Offers available to any third party (“Third Party Distribution”) for display on any web site not owned or exclusively operated by Distribution Partner other than as approved in writing by Performics or the applicable Marketer. A Distribution Partner seeking approval for such Third Party Distribution shall submit to Performics in writing (i) notice of its intent to broker/redistribute Marketer’s Offers on third party sites, (ii) a list of all such third party sites (identified by complete URL) to which Distribution Partner intends to broker/redistribute the Offers, and (iii) any additional information reasonably requested by Performics regarding Distribution Partner’s business practices, privacy policies, etc. If Distribution Partner is generally approved into a Marketer’s program, Distribution Partner shall only engage in Third Party Distribution with web sites approved in writing by Performics. Any website upon which an Offer is displayed, including Offers displayed in connection with approved Third Party Distribution, shall be included within the definition of Distribution Media.

(d) Distribution Partner agrees never to alter any Performics tags so as to include any personally identifiable or sensitive information of any visitors in such tags.

(e) Distribution Partner further agrees and warrants that it will comply with all local, state and federal laws and regulations (including, but not limited to, the “CAN-SPAM” Act, effective January 1, 2004, as may be amended from time to time)..

(f) Performics or Marketer shall notify Distribution Partner of any complaint received by Performics or any Marketer regarding the email practices of Distribution Partner or any alleged violation by Distribution Partner of the above warranties. Within forty-eight (48) hours of such notification, Distribution Partner shall respond to Performics and provide source information as to any questionable emails including, but not limited to, the time, date, IP address and content of the questionable emails. Additionally, as to each individual that agrees to be included in Distribution Partner’s outbound email solicitations, Distribution Partner shall maintain the information establishing the time and date that each individual granted such permission. If Distribution Partner fails to provide source information satisfactory to Performics to demonstrate that Distribution Partner did not send SPAM email or otherwise breach the above warranties, then, in addition to any and all other remedies available pursuant to this Agreement and under existing law, Performics shall have the right to immediately suspend payment to and further performance of any services by Distribution Partner.

6. Indemnification; Limitation of Liability

(a) The Distribution Partner agrees to indemnify, defend and hold harmless Performics and each Marketer (and their respective officers, directors, employees, shareholders and agents) from and against any and all third party claims, liabilities, losses, damages, injuries or expenses (including reasonable attorney’s fees) directly or indirectly arising from or relating to (i) any breach of this Agreement or any applicable law or regulation by Distribution Partner; (ii) the actual or alleged violation by Distribution Partner of any person’s or entity’s intellectual property or privacy rights; or (iii) the operation and content of the Distribution Media.

(b) Performics agrees to indemnify, defend and hold harmless the Distribution Partner (and its respective officers, directors, employees, shareholders and agents) from and against any and all third party claims, liabilities, losses, damages, injuries or expenses (including reasonable attorneys’ fees) directly or indirectly arising from or relating to (i) any breach of this Agreement or any applicable law or regulation by Performics or (ii) the actual or alleged violation or infringement of any intellectual property or privacy rights of any third-party as a result of Distribution Partner’s use of the Performics Technology.

(c) Neither the Distribution Partner, Performics nor any Marketer shall be liable to one another for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses, costs or expenses or any lost or imputed profits of any kind arising out of this Agreement or its termination, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Each party hereto waives any claims that these exclusions deprive such party of an adequate remedy. Except for liabilities resulting from the Distribution Partner’s, Marketer’s or Performics’ willful misconduct or recklessness, the liability of the Distribution Partner, Marketer or Performics shall not exceed the total amount of the Fees actually paid or payable by Performics to the Distribution Partner under this Agreement within the one-year period immediately proceeding the date that the alleged wrongful act first occurred (the “Liability Limit”). The Liability Limit shall not, however, apply to obligations arising under Section 6(a) or Section 6(b) of this Agreement. The Distribution Partner shall not be liable for any errors or omissions included in the Offers received from Performics or in the event that Distribution Partner encounters technical or other difficulties which may occasionally hinder the operation of the Distribution Media. Performics shall not be liable to the Distribution Partner or any other person or entity for (i) any information provided to any person or entity by any Marketer or any illegal, inappropriate act or act of misconduct on the part of any Marketer; (ii) system downtime of Performics or any Marketer; (iii) unauthorized access to, or alteration, theft or destruction of the Distribution Partner’s Distribution Media, data files or systems or programs through accident, fraudulent means or device; or (iv) any claim attributable to errors, omissions or other inaccuracies in the Offers.

7. Confidentiality

In connection with the business relationship contemplated by this Agreement, each party may receive or have access to commercially valuable technical and non technical confidential or proprietary information of the other party, or of a Marketer, including information in whatever form, relating to the business of such party that is not generally known or available to others, including source code and documentation for software, trade secrets, know how, customer lists, pricing strategies, click through rates, conversion data, pricing data, marketing and business plans, information concerning a party's vendors, and such party's contemplated plans, strategies and prospects ("Confidential Information"). Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. If disclosure is required by law, the party required to disclose Confidential Information shall reasonably cooperate with the other party (at the other party’s request and expense) so that the other party may preserve the confidentiality of the Confidential Information to the extent reasonably possible. Notwithstanding the foregoing, Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information: (a) is or becomes generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of receiving party; (c) was independently developed by the receiving party without reference to the Confidential Information; or (d) was lawfully disclosed to the receiving party by a third party under no obligation of confidentiality to the other party

8. Trademarks and Proprietary Rights

(a) Performics, on behalf of Marketer, grants the Distribution Partner a limited, non-exclusive, non-transferable, revocable, worldwide license to use, reproduce and display on the Distribution Media the Offers in accordance with the terms of this Agreement. Performics grants the Distribution Partner a limited, non-exclusive, non-transferable, revocable, worldwide license for the term of this Agreement to use the Performics Technology solely in accordance with the terms of this Agreement. Performics is authorized to identify, via its web page and/or in other media distributions undertaken by Performics, the fact that Performics is providing to Distribution Partner the Services described in this Agreement. Each license granted in this Section 8(a), hereinafter referred to individually as "Licensed Property," is subject to immediate termination in the event that the party granting the license believes that the other party is, in any way, diminishing, diluting or blurring the value of the Licensed Property.

(b) Neither party shall use the other party’s Licensed Property in a manner that disparages the other party or its products or services, blurs, dilutes or otherwise diminishes the other party’s tradenames, trademarks, servicemarks or other intellectual property, or portrays the other party or its products or services in a false, competitively adverse or poor light. Each party shall comply with the other party’s requests as to the use of the other party’s Licensed Property and will avoid any action that diminishes the value of such marks. Without limiting the foregoing, Distribution Partner shall not, without written permission from Marketer, (i) use any of Marketer’s brand names, keywords or derivations of either of the above for any purpose; or (ii) purchase any URL containing any of Marketer’s brand names, keywords or derivations of either of the above.

(c) Subject to the limited licenses granted to Performics and the Distribution Partner under Section 8(a), each party and Marketer owns and shall retain all right, title and interest in its tradenames, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know how and proprietary technology, including, without limitation, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in this Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express written consent of such party.

9. General Provisions

(a) Representations and Warranties. Each party represents and warrants to the other party that: (i) such party has all necessary right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; and (ii) nothing contained in this Agreement or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of this Agreement shall not infringe or violate upon the intellectual property or privacy rights of any third party.

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9(A), NEITHER PERFORMICS NOR THE DISTRIBUTION PARTNER MAKE, AND EACH SPECIFICALLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE DISTRIBUTION MEDIA, PRODUCTS AND SERVICES CONTEMPLATED BY THIS AGREEMENT, AND NON-INFRINGEMENT.

(b) Privacy.

Distribution Partner’s use of the Services (including, without limitation, its utilization of the Distribution Media in connection therewith) (i) shall comply with all applicable laws, rules and regulations and (ii) shall not violate the terms or conditions of (x) any other agreement pursuant to which tags are delivered to the Distribution Media or (y) any Marketer Specific Terms. Each of the Distribution Media shall feature a privacy policy that covers Distribution Partner’s use of the Services and complies with all applicable laws, rules and regulations.

(c) Jurisdiction and Governing Law. Distribution Partner consents to the exclusive personal jurisdiction of the state and federal courts located in Illinois and agrees that any claim against Performics shall be brought in the state or federal courts located in Cook County, Illinois. The rights and obligations of the parties under this Agreement shall be governed by and construed under the laws of the State of Illinois without reference to conflict of laws principles.

(d) Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

(e) Relationships. The relationship of Performics and the Distribution Partner established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venture of the other. The detailed operations of Performics under this Agreement are subject to the sole control and management of Performics. The parties acknowledge that this Agreement sets forth a non-exclusive relationship between the parties. Distribution Partner acknowledges that each Marketer that displays or allows to be displayed any Offer on Distribution Partner’s Web site or through any of Distribution Partner’s Distribution Media is an intended third party beneficiary of this Agreement. Distribution Partner agrees that it will not assert a defense based upon lack of privity against any Marketer for claims arising in connection with this Agreement or in connection with Marketer’s enforcement of the indemnity obligations set forth in Section 6(a) above.

(f) Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated on the Insertion Order. Each party shall be responsible to ensure that their respective contact information, including e-mail address and phone number, provided in ConnectCommerce and/or any Insertion Order is updated, current and correct.

(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

(h) Amendments and Waivers. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. No change, amendment or modification of any provision of this Agreement shall be valid unless in writing signed by both parties.

(i) Construction of Agreement. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement.

(j) Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final nonappealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.

(k) Other Terms. All affiliates agree not to utilize, advertise or otherwise promote any promotional code, special offer, coupon, or product offer without first obtaining express written permission from the DYMO Affiliate Team.

DYMO prohibits all affiliates from bidding on the brand name or misspellings for search engine positioning. This notification applies to, but is not limited to, the following DYMO trademarks and brand names:

DYMO and any common misspellings and variations of these terms.

Also, we do not allow the display of our URL in search titles or descriptions. If you are currently using any of these trademarks or URLS in any search engine, pleaseremove your bid.

As a DYMO affiliate you have agreed to abide by the trademark restrictions. If we discover you are bidding on the trademarked name or URL, or violating the Agreement in any way after the effective date, you will be notified immediately, with the potential result of removal from the affiliate program.