Blue Phoenix Media Inc, Terms of Agreement

Last updated October 24, 2006

Blue Phoenix Media Inc. and its subsidiaries which include Blue Phoenix Network, divisions and related web sites (hereinafter collectively referred to as “BPM” actively monitor traffic for fraud. If we detect fraud, your account will be made inactive pending further investigation.

BPM reserves the right to modify the Terms of Agreement at any time, effective upon posting of the modified at www.bluephoenixmedia.com. By registering for use of the Services, and thereby accepting the Terms of Agreement, The Affiliate, Publisher, Partner, or Advertiser (herein after referred to as “You”) agree to abide by the Terms and Agreement as modified from time to time. Any violation of these terms may result in the suspension or termination of your account and such other action as BPM deems appropriate.

Blue Phoenix Media Inc. ("BPM") provides you access to Blue Phoenix Media Inc.  properties which is defined as all web pages and applications that BPM owns, operates or hosts, and various third party applications which make advertisements available on or within websites that may include co-registration paths, subject to your compliance with the terms and Agreement below.  By enrolling You agree to be bound by the Terms of this Agreement on any purchase order that you complete, including all payment terms (collectively, the "Agreement").  You, further agree that you are bound by these Terms of Agreement whether you are acting on your own behalf or on behalf of a third party.

All websites, newsletters, companies, or individuals must obtain official approval from BPM before they can become an Affiliate. Only websites that have been reviewed and approved are permitted to use  BPM products and services. BPM reserves the right to withhold or refuse approval of any website, company, or individual for any reason, in its sole discretion. In order to be eligible for Affiliate approval, all your websites must meet the following criteria:

• Be written in English
• Receive a minimum of 250 unique page views per month
• Cannot offer incentives to users to click on advertisements, including, but not limited to, awarding them cash, points, prizes, contest entries, etc. (unless expressly stated in the campaign instructions)
• Be fully functional at all levels; no "under construction" sites or sections
• Opt-outs and forced opt-ins are prohibited
• Publisher must not: (i) place statements near the Advertisements requesting that Users "click" on the Advertisement (i.e., "Please "click here") or "visit" the sponsor (i.e., "Please visit our sponsor."); or (ii) place misleading statements near the Advertisement (i.e., "You will win $5,000.").

The content of the website cannot contain any adult content or link from or to any adult materials, including, but not limited to:

• Explicit, vulgar or obscene language
• Posting or referencing of sexually explicit images or other offensive content
• Promotion of adult services, such as phone sex or escort services
• Obscene material, including without limitation, any material depicting bestiality, rape or torture
• Any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age) or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc.

The content of the website cannot infringe on any personal, intellectual property or copyrights, including, but not limited to:

• Racial, ethnic, political, hate-mongering or otherwise objectionable content
• Investment, money-making opportunities or advice not permitted under law
• Gratuitous violence or profanity
• Material that defames, abuses, or threatens physical harm to others or to you
• Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.
• Material which solicits, promotes or otherwise makes available prostitution, gambling, software piracy, warez, password selling, password trading, hacking, cracking, MP3s, Credit Card numbers, or the like Hacking or phreaking
• Any illegal activity whatsoever
• Any questionable or controversial subject matter
• Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic
• Any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person

Users who register with BPM must be at least 13 years old. In accordance with the Federal Children’s Online Privacy Protection Act of 1998 (COPPA) http://www.coppa.org/comply.htm, BPM will never knowingly solicit nor will it accept personally identifiable information from users known to be under thirteen (13) years of age.
You cannot place our advertisements into your framed environment, unless approved by Blue Phoenix Media Inc. Here in writing.

Your web site and/or newsletter cannot be 'point, lottery, or rewards' based encouraging users to click on our Advertisers' banners or use our Advertisers to generate revenue for users to win points, get rewards, or other incentives unless expressly approved in writing from Blue Phoenix Media Inc. In order to be approved as a "Click Program" Publisher, all web sites and newsletters must meet the following criteria:

• Be approved as a "Leads Program" Publisher
• Be content-based, not simply a list of links or advertisements, nor can the site be centered around making money off of our Advertisers
• Cannot offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.
• Spawning process pop-ups and exit pop-ups are prohibited
• Have click-through rates that are much higher than industry averages and where solid justification is not evident
• Have ONLY click programs generating clicks with no indication by site traffic that it can sustain the clicks

If You fraudulently add or inflate leads by fraudulent traffic generation, You will forfeit your entire commission for all advertisements, and your account will be terminated. BPM reserves sole judgment in determining fraud.

You agree to abide by all of the specific instructions as specified in the related insertion orders , including but not limited to creative display, file format and delivery, scrub criteria, ad targeting, lead delivery timing, lead volume and caps, reporting, approval procedures and invoicing.
 
You cannot send Unsolicited Commercial Email (i.e., SPAM). You agree to comply with all laws applicable to you, including, but not limited to, The CAN-SPAM Act of 2003 and any other state federal, or international law regarding SPAM or unsolicited email. You WILL NOT SPAM or send unsolicited email mentioning or promoting the advertisements. Any violation of this will result in your being liable for damages of $1.00 per email sent and other damages as deemed by a court of law.

It is your OBLIGATION to prove to BPM that you are NOT committing fraud. BPM will hold any payment owed to you in 'Pending Status' until you have satisfactorily provided evidence that you are not defrauding the system. We will place any suspicious activity on fraud watch if:

• Promote a false or unavailable premium to generate registrations
• Have delivered fraudulent leads as determined by our clients
• Use fake redirects, automated software, and/or fraud to generate leads from our advertisements
• Use false or deceptive Information; Subject Lines. You may not use false or misleading: headers, subject lines that are likely to mislead the recipient about the content or subject matter, or return Email addresses.

This Agreement constitutes an agreement between Blue Phoenix Media Inc and You. The commission payment payable to you varies per advertisement. A commission payment is made approximately 30 days after the end of the month and only BPM receives payment from the advertiser. Delinquent advertiser payments received by BPM will be credited to you in the month that they are received. BPM does not guarantee payment to you if the advertiser does not pay BPM.

Affiliates who have charge-backs of two (2%) percent or greater, or credit-backs of five (5%) percent or greater may be terminated from the Program. Credit-back is defined as customers who cancel their memberships and receive a credit. Charge-back is defined as a refund of payment for customers after the credit card has been processed.

Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions.

Commission payment totals must exceed $100.00 otherwise payment will not be made until the next payment cycle after the $100.00 minimum is reached.  International users (outside of the United States) agree to a minimum $200 payment threshold before payment will be issued.

You must warrant and represent that you will supply BPM with a W9 form that includes your Federal Tax ID or Social Security Number if your business resides in the Unites States or a W8 form if your business is outside of the United States  upon commencement of this Agreement, or upon request and that your failure to supply that information will constitute a basis for terminating this Agreement and for BPM retaining any commissions or fees to which you would otherwise be entitled under this Agreement as liquidated damages; and You warrant and represent that you will provide us with valid contact information, including without limitation, your full name, email address and mailing address (PO Boxes are not acceptable - Payments will NOT be issued to a PO Box).

"Confidential Information" means any information disclosed to you by BPM, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that you can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by BPM; (ii) becomes publicly known and made generally available after disclosure to you by BPM other than through your action or inaction; or (iii) is in your possession, without confidentiality restrictions, at the time of disclosure by BPM as shown by your files and records immediately prior to the time of disclosure. You will not at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information, (b) use any Confidential Information, or (c) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information will at all times remain BPM 's personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information will be delivered to BPM immediately upon PA's request.

You will only run approved creative images, HTML and text in your advertising of our advertisements and will NOT create your own creative, unless expressly approved in writing by BPM. Violation of this forfeits your commissions. 

Editing of an advertiser's program images or copy is strictly prohibited. You will only use approved images and text to link to an advertiser's sign-up pages. You will not mislead people to make it seem that they are signing up for an offer that is offered by your site. You can ONLY use approved creative, and any other use of link and sign-up processes will result in the loss of commissions for all sign ups/leads accrued by you.

You will deliver leads in as set forth in the related purchase orders.  All reporting and charges to BPM will be based solely upon the reporting provided by BPM unless otherwise stated in the related purchase orders.

BPM reserves the right to terminate the Agreement for any reason whatsoever, in its sole discretion. Notice of termination will be provided via e-mail and will be effective immediately. All legitimate moneys due to you will be paid during the next payment cycle. If you defraud the system, then payment may be revoked as determined solely by BPM.

Whereas, BPM is in the business of purchasing Co-Registration Advertising for clients and you are in the business of developing files of potential customers for BPM’s clients.  In consideration of the mutual past, present and future performances of the parties and other goods and valuable and legally sufficient consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
You agree that at all times while the Agreement is in effect and for a period of  one (1)  year thereafter, you will not, as a principal, agent, employee, employer, consultant, stockholder or investor, director or co-partner of any person, firm, corporation or business entity other than on behalf of BPM, or in any individual or representative capacity whatsoever, directly or indirectly, without the express prior written consent of BPM: (i) contact, solicit or provide services to any advertiser of BPM that BPM introduces to you during the term of the Agreement for services that are similar to or in any way compete with the services provided by BPM (“Advertiser”); (ii) cause any Advertiser to terminate its relationship with BPM; or (iii) aid or counsel any other person, firm, corporation or business entity to do any of the above.  If you are contacted by any Advertiser, or any person, firm, corporation or business entity on behalf of any Advertiser, you shall notify BPM within five (5) days of such contact fully disclosing the nature and purpose of the Advertiser’s contact.

You guarantee that all content, products, and services on your website are legal to distribute and that you own or have the legal right to use any and all copyrighted material.

You irrevocably covenant, promise and agree to indemnify BPM and to hold BPM harmless from and against any and all losses, claims, expenses, suits, damages, costs, demands or liabilities, arising from any and all claims and lawsuits for copyright, slander, libel, and trademark violation as well as all other claims resulting from your web pages.

If any publisher violates any of the provisions contained herein or commit fraudulent activity against BPM, then BPM (1) will be under no obligation to pay you for the breaching activities and may revoke payment in BPM’s sole discretion; (2) may seek a refund of past monies paid to you, if such monies were paid for breaching activities; and (3) reserves the right to withhold payment and to take legal action to recover damages incurred and/or to seek injunctive relief.

BPM may amend the Agreement at any time, in our sole discretion. Notice of amendments will be sent to you via email, and you are responsible for complying with any amendments to the Agreement within 10 calendar days from the date of change. Failure by you to terminate the Agreement within those 10 calendar days will constitute acceptance of the changes to this contract.

In connection with any legal action taken by an advertiser, agency, client, person, or entity against BPM for your actions that violate the Agreement, you agree that BPM will work with the advertiser, agency, client, person, or entity and may divulge your personal information. You also agree that BPM is not liable for your actions, and you will bear all costs (legal or otherwise) that BPM incurs if BPM is sued by an advertiser, agency, client, person, or entity as a result of your actions.

If any provision of the Agreement is held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of the Agreement will not be affected thereby.

You must be at least 18 years or older to sign up as a(n) Blue Phoenix Media Inc. Publisher, Partner, Advertiser or Affiliate.

This Agreement constitutes the entire agreement between you and Blue Phoenix Media Inc. with respect to the subject matter hereof and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. The Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles of conflicts of law. Any litigation arising under the Agreement will be brought in the federal or state courts of New York.

All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice):

If to Company, to the attention of both the CEO and General Counsel, each at the address of:

Blue Phoenix Media Inc.
265 Canal Street, Suite 509
New York, NY10013