ADVERTISER TERMS AND CONDITIONS

This Advertiser Terms and Conditions Agreement (the "Agreement") shall govern participation in the AfterDownload.com ("AfterDownload") network (the "Network"). By participating in the Network, you are agreeing to be bound by the terms and conditions of this Agreement. The term "Advertiser" shall refer to any individual or entity who accepts this Agreement by submitting a registration form with all the required information for approval ("Membership") in the Network and checking the "I Agree" checkbox...
IF YOU ARE AN INDIVIDUAL, YOU REPRESEN AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.

By submitting advertising for inclusion on the Network site or service, Advertiser agrees to be legally bound by the terms of this Agreement. No conditions other than those set forth herein shall be binding on AfterDownload unless specifically agreed to in writing by AfterDownload. AfterDownload will not be bound by conditions printed or appearing on order blanks or copy instructions submitted by or on behalf of the Advertiser. Advertiser and its agency (if applicable) are jointly and severally responsible under this Agreement. Subject to AfterDownload's right to terminate or cancel this Agreement, AfterDownload's only obligation to serve advertisements hereunder shall be to serve advertisements of the Advertiser described herein, and in no event shall AfterDownload be obligated to serve advertisements for any other advertiser. The terms of the Agreement will be considered accepted by AfterDownload once AfterDownload commences publication of the advertisements requested in the registration form. Under no circumstances shall AfterDownload's liability or obligations exceed those which are expressly set out in this Agreement

PAYMENT:
(a) All Advertisers are required to pay one-hundred percent (100%) of the cost of the campaign in advance before its activation. AfterDownload reserves the right to set and negotiate specific payment terms for each Advertiser. All payment will be made via PayPal, Check or bank wire transfer. AfterDownload is under no obligation to perform agreed upon services until payment is received. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts and will instead follow the dispute resolution procedures as specified herein. In the event that Advertiser is more than seven (7) days past due on its account, AfterDownload may charge the total amount then due and owing to Advertiser’s credit card account.

(b) In the event of a dispute between Advertiser and AfterDownload regarding amounts due, Advertiser agrees that AfterDownload’s tracking count shall be applied. Advertiser understands and agrees that in no event, and under no circumstance, will data provided by any AfterDownload representative constitute final billing numbers. Only invoices sent directly to Advertiser are to be construed as representative of billable amounts. In the event that AfterDownload does not receive a written notification of a disputed bill, with rationale and support therefore specifically set forth therein, within five (5) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.

(c) Any late payments will accrue interest equal to one and a half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. Advertiser will be charged $100 for payments by checks that are returned due to insufficient funds. AfterDownload shall be entitled to recover all reasonable costs of collection (including attorneys’ fees, expenses and costs) incurred in attempting to collect payment from Advertiser.

(d) Rates: All advertising rates are subject to change at any time.

(e) Payment Liability: AfterDownload.com reserves the right to hold Advertiser and any agency, broker or other authorized representative of Advertiser jointly and severally liable for all amounts owed to AfterDownload.

Participation:

AfterDownload.com shall have absolute discretion as to whether or not it accepts a particular Advertiser or site for participation in the AfterDownload.com Network.

1. AfterDownload.com will not deliver visitors to sites containing content that is not appropriate for viewing by a general audience. The following are examples (including but not limited to) of the type of sites we will not deliver visitors to:

• Sites with pornography, adult content, sexual or erotic material or sites that contain links to such content.
• Sites containing or linking to any form of illegal activity (i.e., how to build a bomb, hacking, \\\'phreaking\\\', etc.).
• Sites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm.
• Sites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.).
• Sites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam).

Without derogating from the foregoing, it is hereby clarified that AfterDownload reserves the right to refuse service to any new or existing Advertiser at any time, in its sole discretion, with or without cause. AfterDownload reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Creative for any reason at any time, with or without notice to the Advertiser and regardless of whether such Creative was previously accepted or published. AfterDownload will not knowingly accept Creative from Advertisers that produce or provide “adult” or pornographic materials, or any other matter which is known or recklessly suspected to offend prevailing community standards anywhere received or displayed. Advertiser acknowledges and agrees that any suspect Creative will be presented with reasonable access restrictions, including without limitation age or consent disclaimers, certifications, warning or restrictions. Creative (including either advertising materials OR linked URLs) shall not include nudity, partial nudity, or any other material that may be indecent or inappropriate for purposes of being read or viewed in conjunction or linked to Inventory or Sites, including without limitation scatological or sexual references, other adult language which may not be appropriate for minors, or depictions or references to gore, violence, cruelty to animals, or other offensive or unnatural acts. AfterDownload does not accept Advertisers that engage in, promote, facilitate, or suborn the deliberate, reckless or negligent violation of any laws, and will not condone or permit any such activity that comes to its knowledge. AfterDownload may in its sole discretion refuse, restrict or terminate the Campaign, transmission, delivery or other use of any Creative that it deems inappropriate, or requires special handling, or limit any access to the Network connected with same. This Agreement may be terminated by AfterDownload immediately with or without notice if Advertiser fails to disclose, conceals, or misrepresents either itself or the nature of its Creative, Network activities, or Campaign orders in any way.

2. To insure compliance with these terms and conditions, any Advertisers that change their content after approval for membership MUST notify AfterDownload.com of the changes in writing IMMEDIATELY. If your advertisement is changed during the campaign such that it includes inappropriate content, AfterDownload.com will stop your campaign immediately. In this case, you will not be entitled to a refund.


Data Reporting (Stats): Campaigns that use third party serving/tracking for auditing purposes may be subject to alternate or additional controls. AfterDownload is the sole owner of all website, display campaign, and aggregate web user data collected by AfterDownload or the Network. Advertiser only has access to website and web user data that is collected as part of Advertiser\\\'s campaign as long as Advertiser is in full and strict performance of this Agreement. All Campaigns are subject to Network capacity limitations, which may include without limitation software, hardware, Internet traffic and service provider, bandwidth and other performance metrics, Inventory availability, payment terms, credit history, Creative performance, and market pricing limitations.

 Campaigns:

(i) Advertiser agrees to confirm the correct function of all Creative supplied to AfterDownload within twenty-four (24) hours of the Campaign start. If no confirmation is received within this time frame, AfterDownload will assume that Creative is functioning properly and Advertiser agrees to pay for all impressions, clicks or leads derived from the Creative as measured by AfterDownload. All problems related to Creative should be immediately brought to the attention of AfterDownload account executive for Advertiser. AfterDownload is not liable for errors in position and/or placement of the Creative, or typographic errors of any kind. Advertiser agrees and understands that if AfterDownload is requested to retrieve any Creative for and on behalf of Advertiser, that AfterDownload performs this service solely as a courtesy to Advertiser. Advertiser shall remain fully responsible for all Campaigns delivered for or on behalf of Advertiser in such instances, even in the event of any errors by AfterDownload, including retrieving incorrect Creative.

(ii) Advertiser agrees to allow AfterDownload to make changes or alterations to the Creative for the purpose and intent of matching it to the medium of delivery. AfterDownload may, at its option, modify the flight date of a Campaign if the Creative or linking URL’s are not delivered on time or there are delays due to third party ad-serving, inventory fluctuation, or other issues beyond its control.

(iii) Advertiser hereby grants to AfterDownload and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) in connection with its obligations hereunder.

(iv) AfterDownload reserves the right to pause any Campaign that does not meet or satisfy AfterDownload’s performance expectations, operational requirements, or for any other reason. During the pause period, Advertiser and AfterDownload will work together to address AfterDownload’s concerns, including but not limited to testing new Creative and/or changing rates. If during or following the pause period AfterDownload deems, at its sole discretion, that the Campaign will not meet minimum performance expectations or operational requirements, AfterDownload reserves the right to cancel Advertiser’s Campaign. For Advertisers who pre-paid, AfterDownload will credit Advertiser the unused portion of pre-payment (i.e. the total pre-payment less the cost of what has been delivered).

(v) Any advertising and marketing rights not specifically granted to Advertiser herein are specifically reserved by AfterDownload. Without limiting the generality of the foregoing, AfterDownload expressly reserves the right to: (i) refuse any advertising request, cancel any Campaign, or change any Campaign that does not completely conform to every material detail, instruction, method, and guideline set forth in the registration form; (ii) refuse any Creative that does not arrive forty-eight (48) hours prior to the start date; (iii) refuse or cancel the use of any Campaign that it deems, in its reasonable discretion, inappropriate for any reason or no reason; (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason including those that it believes, in its reasonable discretion, are an invasion of privacy, are degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion are an infringement on a trademark, trade name, or copyright belonging to others; (vi) refuse any advertising request or cancel any Campaign that is or can be hosted by any directly or indirectly competitive network; (vi) refuse or cancel any Campaign which redirects traffic to a website other than the site specifically identified in the registration form; and/or (vii) refuse or cancel any Campaign which on its face asks consumers to take advantage of other or additional offers not specifically identified in the registration form. All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations. AfterDownload shall notify Advertiser of the rejection or cancellation of any Campaign and shall have no liability to Advertiser for any such rejection or cancellation. Further, AfterDownload shall have no liability to Advertiser for failure to place any Campaign on its or any third-party publisher’s network.

Advertiser\\\'s Representations and Warranties:

Advertiser represents, warrants, and covenants that:

(i) Advertiser will provide all creative and substantive materials (“Creative”) required for marketing its campaign, including but not limited to the use of alternative text-based creative;

(ii) Advertiser is the owner or is licensed to use the entire contents and subject matter contained in its advertisements and collateral information, including, without limitation, (i) the names and/or pictures of persons; (ii) any copyrighted material, trademarks, service marks, logos, and/or depictions of trademarked or service marked goods or services; and (iii) any testimonials or endorsements contained in any advertisement submitted to AfterDownload;

(iii) Advertiser is solely responsible for the substantive content of each advertisement, and to the extent that AfterDownload provides assistance in the development of a campaign, such assistance shall be limited to creative assistance only. Advertiser represents and warrants that AfterDownload is not a party to, and has no liability for, the content and claims in Advertiser\\\'s Creative.

(iv) Advertiser is not in violation of any obligation, contract, agreement, or laws, by entering into this Agreement, by performing its obligations hereunder, or by authorizing and permitting AfterDownload to perform its services hereunder. Advertiser has the unrestricted power and authority to enter into and perform its obligations under this Agreement;

(v) the use, reproduction, distribution, transmission or display of any Creative and any materials to which users can link, or any products or services made available to users through the Creative does not and will not (i) violate any law, statute, ordinance, treaty, order, decree, regulation (including but not limited to false advertising or unfair competition under the law of any jurisdiction), give rise to criminal or civil liability or infringe any copyright, patent, trademark, or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party (collectively “Unlawful Conduct”); (ii) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking or warez content or conduct (collectively “Offensive Conduct”); or (iii) encourage conduct that would constitute Unlawful Conduct or Offensive Conduct;

(vi) Advertiser has a reasonable basis for all claims made within the Creative, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Campaigns. Advertiser warrants that all product information it provides AfterDownload and/or posts on its website, is truthful, accurate, and complete, and is not misleading in any way;

(vii) the landing page for each Campaign (i.e., the Advertiser’s website page where a consumer is directed when the consumer clicks on the Creative, fills in a registration form, or takes a similar action) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, (i) adequate notice, disclosure, and choices to consumers regarding Advertiser’s use, collection, disclosure, and security of their personal information; and (ii) complete compliance with all relevant guidelines and any other applicable laws, rules, and regulations with respect to online privacy;

(viii) no Campaign is targeted to children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess, or participate in; and

(ix) all consumer data collected pursuant to this Advertiser Agreement shall only be used for legal purposes;

GENERAL:
Indemnification:

Advertiser agrees to indemnify and hold AfterDownload, its third party publishers, and their respective affiliates, employees, officers, agents, directors, and representatives, harmless immediately upon first demand of AfterDownload from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs, and expenses (including without limitation reasonable attorneys’ fees) arising out of or related to: (i) Advertiser\\\'s breach of any representations, warranties, or covenants made in this Agreement, or (ii) any allegations of or proceedings for libel, defamation, violation of right of privacy or publicity, copyright infringement, or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the use of the Network; (iii) the breach by Advertiser of any of the terms and conditions set forth herein; and/o (iv) the advertisement URL and its linked websites. Advertiser further agrees that any compromise or settlement of such disputes will contain a complete, express, and unconditional release of AfterDownload. The provisions of this Section shall survive the termination or expiration of this Agreement..


Cancellation:

The Advertiser and the Publisher may stop the campaign at any time with twenty-four (24) hours written notice. For the termination of the campaign, the Advertiser is responsible to pay for all impressions that were served by YesUp, and YesUp shall issue a refund for all impressions that have not been delivered.

Non Solicitation:

(a) AfterDownload has proprietary relationships with the publishers that make up its Network. With the exception of reasonably documented, preexisting relationships with direct publishers or networks, during the term of this Advertiser Agreement and for a period of twelve (12) months thereafter, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that Advertiser knows, or has reason to know, is a publisher on AfterDownload’s network for the purpose of obtaining the placement or hosting of advertising in any form without the express, written consent of AfterDownload. In the event that Advertiser violates this provision, it shall pay AfterDownload an additional commission equal to what the AfterDownload would otherwise have earned had Advertiser not violated this subsection (a).

(b) The parties agree and understand that a material breach of this \\\"Non Solicitation\\\" will cause AfterDownload to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, AfterDownload will, in addition to all other remedies, be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond and/or shall be entitled to a decree of specific performance of the terms of this Advertiser Agreement against the Advertiser. The foregoing remedy is a material, bargained for basis of this Advertiser Agreement and has been taken into account in each party’s decision to enter into this Advertiser Agreement.

Independent Contractor:

The relationship of the parties is and at all times shall remain one of independent contractors. Neither party is in any way a partner, joint venturer, affiliate, agent or representative of the other for any purpose whatsoever, nor has the legal right or authority to make any representation, warranty, promise, guaranty or agreement in the name of or for the account of the other under this Agreement, except as otherwise expressly authorized by a party under this Agreement.



Limitation of Liability:

(a) THE ADVERTISING SERVICE PROVIDED BY AFTERDOWNLOAD, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AFTERDOWNLOAD MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. AFTERDOWNLOAD DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. AFTERDOWNLOAD DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. AFTERDOWNLOAD DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON AFTERDOWNLOAD’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND AFTERDOWNLOAD IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. AFTERDOWNLOAD WILL MAKE DILIGENT EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.

(b) AFTERDOWNLOAD SHALL NOT BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY. AFTERDOWNLOAD’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT FOR THE ADVERTISING CAMPAIGN IN QUESTION.

(c) Without derogating from the foregoing, AfterDownload shall not be subject to any liability whatsoever for (a) delays in delivery and/or non-delivery of Creative, including, without limitation, difficulties with a customer or other third parties, difficulties with a third-party server, or electronic malfunction; and (b) errors in content or omissions in any kind.

Modifications:

AfterDownload reserves the right to change any of these terms and conditions at any time without notice. You are responsible for complying with complying with any changes to the terms and conditions within 10 days of the date of change. A notice with respect to any change will appear on AfterDownload website.

Waiver; Severability; Assignment

The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will remain in full force and effect. Advertiser may not resell, assign, or transfer any of its rights hereunder (including without limitation advertisement space) without the express prior written consent of AfterDownload. Any attempt by Advertiser to resell, assign, or transfer such rights shall result in immediate and automatic termination of this Agreement, without liability to AfterDownload.

Entire Agreement

This Agreement sets forth the entire agreement between the parties and supersedes prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter contained herein.

Governing law

This Agreement shall be governed by and construed under the laws of the state of Israel without regard to conflict of laws principles.