Terms of Service
 

Posted: Tuesday, August 07, 2012

TRAFFICZ DOMAIN AND WEBSITE MONETIZATION SERVICES AGREEMENT

This TrafficZ Domain and Website Monetization Services Agreement (the "Agreement") shall govern the terms and conditions of your participation in the domain and website monetization program (the "Program"), offered by TrafficZ, Inc. ("TrafficZ"), a California corporation. By using the domain, sub-domains, and affiliated domains of www.TrafficZ.com (collectively, the "Site") and/or utilizing TrafficZ's domain and website traffic management and monetization services (the "Services"), you ("you" or "Client") acknowledge that you have read, understand and agree to be bound and abide by the terms and conditions of this Agreement, as amended and/or supplemented from time to time by TrafficZ in its sole and absolute discretion. It is your responsibility to review this Agreement periodically, and if at any time you find this Agreement unacceptable, you must immediately leave the Site and cease all use of the Program, the Services and the Site. YOU AGREE THAT BY USING THE PROGRAM, SITE AND/OR SERVICES YOU REPRESENT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER THIS AGREEMENT. IF YOU ARE REGISTERING ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT.

Recitals

WHEREAS, TrafficZ offers domain and website traffic management and monetization services to individuals who wish to monetize their Domain Names, Websites and/or Internet traffic;

WHEREAS, TrafficZ has established direct relationships with Advertising Networks and/or their agents to generate revenue on and/or through the use of third party Domain Names, Websites and/or Internet traffic;

WHEREAS, Client owns, controls and/or operates a portfolio of Domain Names and/or Websites composed solely of Appropriate Domain Names; and

WHEREAS, TrafficZ wishes to monetize Client's Domain Names, Websites and/or Internet traffic through the Program, and Client wishes to enroll in the Program and receive the foregoing Services in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in good consideration of the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Client and TrafficZ agree to the following terms and conditions.

Agreement

Section 1. Definitions.

1.1 "Advertisement" means content, whether a listing, image or otherwise, that is delivered by an Advertising Network and displayed on a Monetized Domain.

1.2 "Advertising Network" means an entity which is in the business of connecting individuals and entities to advertisers, whether that be through a listing, redirect or otherwise, and charging the advertisers for its service, whether that be through a CPC, CPM, CPA, Zero Click or other Internet advertising pricing model.

1.3 "Appropriate Domain Names" means Domain Names that do not fall within the definition of Inappropriate Domain Names.

1.4 "Click-Through" means the physical act of an individual End User clicking on a Search Result or Advertisement.

1.5 "Collection Risk" means those costs associated with collection of revenue, including credit card charges, chargebacks, bad debts, invoice and traffic adjustments and advertiser incentives.

1.6 "CPA" or "Cost Per Action" means the Internet advertising pricing model whereby advertisers pay Advertising Networks a predetermined amount when an Internet user performs a specified action, such as submitting information or purchasing an item, after clicking upon an advertiser's advertisement or listing on an Advertiser Network's network or affiliate's network.

1.7 "CPC" or "Cost Per Click" means the Internet advertising pricing model whereby advertisers pay Advertising Networks a predetermined amount when an Internet user clicks through on an advertiser's paid listing on an Advertising Network's network or affiliate's network.

1.8 "CPM" or "Cost Per Impression" means the Internet advertising pricing model whereby advertisers pay Advertising Networks a predetermined amount when an Internet user views an advertiser's paid listing on an Advertising Network's network or affiliate's network.

1.9 "Distribution Costs" means those costs associated with the distribution of the Search Results such as Web Search fees, agency and referral fees and reporting and tracking costs.

1.10 "Domain Name" means a series of strings separated by periods for the purpose of addressing a computer network connection, that is registered and in good standing, with an accredited Internet Corporation for Assigned Names and Numbers ("ICANN") registrar.

1.11 "Duties Violation" means any event that is in violation of Client's covenants as set forth in Sections 2.2 through 2.9.

1.12 "Effective Date" shall be the date upon which you first visit the Site, submit your registration information or first login to the TrafficZ system after the Posted Date or fifteen (15) days after the Posted Date, whichever date is earliest in time.

1.13 "End User" means a visitor to a Monetized Domain or that is redirected from a Monetized Domain by TrafficZ.

1.14 "Inappropriate Domain Name" means a Domain Name for which TrafficZ has reason to believe or has been notified that:

a. it does not have the right to use or to associate data with any URL containing the Domain Name;

b. it does not have appropriate rights to reproduce and distribute any of the content (other than Licensed Materials) available at any URL containing the Domain Name;

c. the Domain Name violates the trademark (or other related rights), copyright, trade secret, patent or other intellectual property right of any third party;

d. the Domain Name violates any applicable law or is subject to an injunction;

e. the Domain Name is libelous, defamatory, or obscene;

f. if the content available at any URL containing the Domain Name includes software that contains a virus, worm or other code that could be damaging or harmful to a user's computer system or stored information; or

g. the Domain Name is contrary to TrafficZ's policies, which may be changed by TrafficZ from time to time in its sole and absolute discretion.

1.15 "Landing Page" means an Internet web page, that TrafficZ owns or controls that will be presented to an End User upon visiting a Monetized Domain, unless the End User is redirected by TrafficZ.

1.16 "Monetization Revenue" means the revenue that TrafficZ estimates it will receive from its Advertising Network partners who have agreed to market their advertisers through the TrafficZ Program. TrafficZ shall determine such Monetization Revenue in its sole and absolute discretion.

1.17 "Monetized Domain" means any Domain Name owned, controlled and/or operated by Client that is monetized through the TrafficZ Program and/or utilizing the Services.

1.18 "Monetized Website" means any Website owned, controlled and/or operated by Client that is monetized through the TrafficZ Program and/or utilizing the Services.

1.19 "Net Revenue" means, with respect to the applicable period, Monetization Revenue less (i) amounts attributable to Collection Risk and Distribution Costs, and (ii) any refunds paid or to be paid to advertisers.

1.20 "Posted Date" means the date upon which this Agreement or any modification to this Agreement is posted at the Site.

1.21 "Search Request" means a search initiated by an End User on a Monetized Domain.

1.22 "Search Result" means a CPC or CPA listing delivered by an Advertising Network.

1.23 "Stress Test" means any program, software or person that interacts with TrafficZ Landers or servers to test the limits of TrafficZ technology.

1.24 "Website" shall mean a collection of web pages maintained and developed by or at the direction of the owner of the Domain Name associated with the site and accessible via the Internet.

1.25 "Zero Click" means the advertising model whereby advertisers pay Advertising Networks a predetermined amount when an Internet user is redirected from an Internet Site within an Advertising Network's network or affiliate's network without the Internet user clicking upon any advertisement or listing.

Section 2. Duties of the Parties.

2.1 Subject to the terms hereof, TrafficZ agrees to: (i) make available to Client's Monetized Domains a Landing Page through which Advertising Networks will be linked for the act of providing Advertisements to End Users of Client's Monetized Domains; (ii) provide Advertisements to End Users of Client's Monetized Website or (iii) redirect End Users to Zero Click advertisers upon End Users visiting Client's Monetized Domains. Notwithstanding the foregoing, the delivery of the Services by TrafficZ hereunder is entirely discretionary. At any time and for any or no reason, TrafficZ may exclude individual or multiple Monetized Domains and/or Monetized Websites from the Services with or without notice in its sole and absolute discretion. Furthermore, TrafficZ reserves the right to deny Services to Client at any time and for any or no reason.

2.2 Upon the Effective Date and throughout the Term of this Agreement, Client agrees to:

a. provide TrafficZ with accurate, complete and verifiable account, contact and payout information.

b. not establish more than one account without the prior written approval of TrafficZ.

c. not transfer or otherwise provide access to or control of his/her account to another individual or entity.

d. change the Domain Name Servers of each Monetized Domain to the Domain Name Servers and IP addresses specified by TrafficZ and/or redirect each Monetized Domain to the Internet URL specified by TrafficZ.

e. not Stress Test any aspect of the Program or Services.

f. never disclose or allow others to access proprietary information about the Program or Services, including but not limited to user account information, documentation, URLs, parameters, data reported, revenues earned and the look, feel and functionality of the Program and Services.

g. not pop-up or pop-under any Monetized Domains without the prior written approval of TrafficZ.

h. not redirect traffic to Monetized Domains, including traffic redirected from non-Monetized Domains and/or purchased traffic, including but not limited to SEM, pop-under or exit traffic, without the prior written approval of TrafficZ.

i. not generate traffic to Monetized Domains or clicks on Search Results or Advertisements, whether on Monetized Domains or on Monetized Websites, by any of the following methods: listings on newsgroups or discussion boards (with the exception of "domain for sale" postings), bulk emails, ICQ postings, chatroom/IRC postings, iframes, zero pixel frames, hitbots, clickbots, spiders, CGI scripts, Java scripts, paid to click programs, paid to read programs, reciprocal click agreements, click farms or any other similar method, as determined by TrafficZ in its sole and absolute discretion.

j. not utilize or permit to be utilized any Monetized Domain for the delivery of unsolicited commercial email messages (i.e., spam, as that term is defined in the U.S. CAN-SPAM Act of 2003) or for any other illegal and/or dubious purpose or activity, as determined by TrafficZ in its sole and absolute discretion.

k. make reasonable efforts to prevent "bots" or "spiders" from initiating requests for Monetized Domains, Search Results, or executing Click-Throughs on Landing Pages or Monetized Websites.

l. not assign any rights to the links or Search Results and will not further syndicate the links or Search Results.

o. provide Company and its Advertising Network partners with accurate, complete and verifiable information regarding any proposed Monetized Websites. Such information shall include, but not be limited to, source of traffic, country origin of traffic, and estimated number of unique visitors to website.

2.3 Upon the Effective Date and throughout the Term of this Agreement, Client represents and warrants and shall ensure that, to the best of its knowledge, each Domain Name that it elects to monetize through the Program and/or Services does not violate the trademark, copyright, patent or any other intellectual property rights of any third party in connection with the goods and/or services advertised through the Program in connection with the Monetized Domain. Client is responsible for conducting a trademark search (and/or all other applicable legal searches) concerning each Monetized Domain to ensure continued compliance with this Section. Client agrees to indemnify, defend and hold harmless TrafficZ, and its officers, directors, employees, agents, successors, and assigns, for any claims made by any party alleging that a Domain Name utilizing the Program and/or Services constitutes a trademark violation.

2.4 Upon the Effective Date and throughout the Term of this Agreement, Client represents and warrants that Client shall not post or upload any content (whether text, image or otherwise) that infringes upon the intellectual property rights of any third party individual or entity. If Client posts or uploads such content, TrafficZ shall act consistently with TrafficZ's DMCA Policy, which may be found here.

2.5 Throughout the Term of this Agreement, Client shall ensure that no Monetized Domain or content on Monetized Websites is inappropriate, offensive, unproductive and/or otherwise questionable in nature, as determined by TrafficZ in its sole and absolute discretion. TrafficZ may immediately remove or require Client to remove a Domain Name from the Program.

2.6 Throughout the Term of this Agreement, Client shall not solicit directly or indirectly any Advertising Network partners associated with TrafficZ, provided, however, that Client may maintain existing relationships with Advertising Network partners that were in place prior to the Effective Date of this Agreement.

2.7 Upon the Effective Date and throughout the Term of this Agreement, Client represents and warrants that, to the best of its knowledge, and shall ensure that, to the best of its ability, all traffic to its Monetized Domains originates from type-in traffic (also known as direct navigation traffic), search engine results, or expired links. Client shall not intentionally post misleading information with regard to Monetized Domains or Monetized Websites. Client shall not act, either directly or indirectly, to encourage or require End Users, either willingly or unwillingly, to click on Search Results or Advertisements and/or to generate Click-Throughs through any means which could be reasonably interpreted as coercive, incentivized, misleading, malicious or otherwise fraudulent in nature. Furthermore, Client shall not advertise its domains in any manner that may increase the likelihood of fraudulent or low-quality Click-Throughs. Client agrees that TrafficZ may ignore or credit back Net Revenue which TrafficZ, in its sole and absolute discretion, believes is questionable in nature or otherwise of low quality in nature or source.

2.8 Throughout the Term of this Agreement, Client shall not engage in any of the following: (i) "blind links" (i.e., where End Users do not know that they will be performing a search); (ii) misleading links in which an End User is persuaded to perform a search in order to obtain some other benefit; (iii) searches from or after 404 or other error messages; (iv) "exit traffic" (i.e., when the End User is presented with search functionality or required to perform a search prior to exiting a Web page); (v) searches required of the End User in order for the End User to do another function, such as leaving a Web page or closing a pop-up window; (vi) searches performed upon an End User hitting the back button or any element of the browser; (vii) searches or displays of TrafficZ's or any of its Advertising Network partners' content within pop-up or pop-under windows; (viii) searches from banner or other advertisements without prior written approval of TrafficZ; (ix) searches from or within an email; (x) the use, display, syndication, sublicense or delivery of TrafficZ's or any of its Advertising Network partners' content on or to any Web site or application or anywhere else other than TrafficZ's Landing Pages and Monetized Websites; (xi) modification or alteration in any way of the Search Results or Advertisements; (xii) disabling of the back button or any other element of the browser; (xiii) replacing the End User's Web homepage without the End User's express prior consent; and (xiv) the stripping, blocking or filtering of TrafficZ's or any of its Advertising Network partners' content, whether by a software application or by any other means, or any other practice that prevents or inhibits the display of TrafficZ's or any of its Advertising Network partners' content, in whole or in part.

2.9 Throughout the Term of this Agreement, Client shall not make the following types of Content available on any of Client's Monetized Domains or Monetized Websites. Client agrees not to upload, display, perform transmit, or otherwise distribute any content that (a) is libelous, defamatory, obscene, pornographic, abusive, or threatening; or (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation. TrafficZ reserves the right to immediately terminate the transmission or other distribution of any such material using the Program, and if applicable, to delete any such material from its servers.

Section 3. Click and Traffic Fraud Monitoring.

TrafficZ has a zero tolerance policy with respect to the use of automated, incentivized and/or otherwise suspect methods of traffic delivery. TrafficZ has developed and implemented multiple detection and analysis technologies to provide it with extensive information and insight into the traffic from your account. In the event that any traffic generated by your account is determined to be fraudulent by TrafficZ, in its sole and absolute discretion, all revenue generated shall be forfeited, your account will be immediately and permanently terminated, and all domains listed within your account will be immediately and permanently banned from future entry into the Program. Furthermore, Client hereby agrees that TrafficZ may share such information, as determined by TrafficZ in its sole and absolute discretion, with other networks.

Section 4. Payment.

4.1 During the Term of this Agreement, TrafficZ agrees to pay Client a commission (the "Commission") based upon revenues earned from Client's Monetized Domains. Such Commission shall be not be less than fifty percent (50%) of all Net Revenue TrafficZ receives from its Advertising Network partners resulting directly from Advertisements displayed on and/or traffic generated by Client's Monetized Domains. Notwithstanding the foregoing, TrafficZ reserves the right to penalize Users with poor quality traffic, as determined in TrafficZ's sole and absolute discretion, by paying said Users a Commission of less than fifty percent (50%) and at a level determined solely by TrafficZ.

4.2 TrafficZ will track the Commissions, as set forth in Section 4.1 above, and remit payment of any Commissions due to Client within seven (7) days of the end of the calendar month in which Client earned such Commissions; provided, however, that TrafficZ shall have the right to delay payment until it has received payment from its Advertising Network partners for such earned Commissions. If Client has not earned at least twenty five dollars ($25.00) in Commissions for any particular month, then the Commission payment will be held until such month that Client has accumulated at least twenty five dollars ($25.00) in earned Commissions.

4.3 Client acknowledges and agrees that TrafficZ may, in its sole and absolute discretion, withhold payment for, ignore or credit back Net Revenue which it believes is questionable in nature, of low quality in nature or source, or otherwise, in any way breaches any of the terms or conditions set forth in this Agreement. Client also agrees that TrafficZ shall not include in its Net Revenue calculations any Click-Throughs or redirects for which it is unable to charge its partners (i.e., in the event of a system failure or other technical difficulty with TrafficZ or its partners, TrafficZ will not be liable to pay Client for traffic delivered to Advertising Network partners, but not otherwise recorded or charged to partner accounts).

4.4 Client understands, acknowledges and agrees that TrafficZ shall be solely responsible for tracking and reporting all data under this Agreement, as well as calculating payments owed hereunder. No other traffic measurement or calculation will be deemed relevant nor affect either party's performance under this Agreement. Client shall have no longer than five (5) days from the last day of the month prior to dispute any discrepancy pertaining to the data set forth in Client's online account interface. Failure to report any such discrepancy within such five (5) day period shall be considered by both parties as a forfeiture of Client's right to dispute. The traffic measurements and data of TrafficZ shall be conclusively determinative of the payment obligations hereunder.

4.5 Client agrees to provide and maintain complete and accurate contact and payment information associated with Client's TrafficZ account, including up to date tax-related information. Documentation that Client is required to submit to TrafficZ will vary based upon Client's status with the United States and Client's business activities within the United States. Client agrees to submit complete and accurate tax-related documentation, as requested by TrafficZ, in order for TrafficZ to fulfill its tax reporting obligations. Depending upon Client's status, Client will be required to furnish to TrafficZ one of the following forms of documentation: Form W-9, Form W-8 or a Certification of No US Activities. Client shall contact a qualified tax professional should Client have any questions regarding which forms they are required to submit to TrafficZ.

4.6 Client warrants that it understands, acknowledges and agrees that TrafficZ shall not withhold taxes from any payments due to Client upon Client's submission of the requisite tax-related documentation, and it is the sole responsibility of Client to pay all local, state, federal and/or foreign taxes on income received from the Program. Client's failure to submit the requisite IRS Forms or certification to TrafficZ in a timely manner may result in a withholding and/or forfeiture of all or a portion of Client's earned Commissions.

Section 5. Domain Offers and Inquiries.

Client may receive offer and inquiry notifications on domains designated to receive such communications. This designation will be the default setting for each Domain Name imported into a Client's TrafficZ account, though Client is able to modify this setting at any time both during and after importing a Domain Name. Client's Domain Names designated to receive such communications will also be listed with Aftermarket, Inc. ("Aftermarket") as Domain Names available for purchase unless Client opts out of this service in Client's user account or by notifying TrafficZ. Upon receiving a notification that an offer has been made on a Domain Name through Aftermarket, Client will be directed to create an account with Aftermarket in order to view the offer. The listing, potential sale, and/or sale of the Domain Name through Aftermarket shall be governed by Aftermarket.com User Agreement, which may be viewed here and is hereby incorporated by reference into this Agreement.

Section 6. Term and Termination.

6.1 Term. This Agreement will become effective upon the Effective Date and shall continue in effect until otherwise terminated pursuant to the terms hereof (the "Term").

6.2 Termination. Notwithstanding Section 6.1, this Agreement may be terminated as follows:

a. Either party may terminate this Agreement, effective immediately, if the other party is in default of any material obligation under this Agreement, and such default remains uncured for a period of thirty (30) days following written notice of such default given by the non-defaulting party to the defaulting party.

b. Either party may terminate this Agreement, effective immediately, if the other party is adjudicated bankrupt, becomes insolvent, voluntarily or involuntarily commences liquidation, if a receiver (temporary or permanent) for its property or a part thereof is appointed by a court of competent jurisdiction and not dismissed within thirty (30) days after appointment, if it makes a general assignment for the benefit of creditors, or if execution is levied against substantially all of its property or which would have an adverse effect on the operation of its business and is not removed within thirty (30) days.

c. TrafficZ may terminate this Agreement, effective immediately and without notice, if: (i) Client's account does not generate a minimum of 1,000 unique visitors per day for ten (10) consecutive days on Monetized Domains; (ii) TrafficZ determines, in its sole and absolute discretion, that Client has had a Duties Violation; (iii) TrafficZ determines, in its sole and absolute discretion, that the quality or nature of the traffic delivered by Client is unsatisfactory, fraudulent or otherwise questionable; (iv) TrafficZ determines, in its sole and absolute discretion, that Client is specifically violating Sections 2.2, 2.7, 2.8 or 2.9; or (v) a TrafficZ Advertising Network partner has terminated Client's approved status for any or no reason.

d. Either party may terminate this Agreement at any time for any reason, effective upon thirty (30) days written notice of such intent to terminate given by the terminating party.

6.3 Effect of Termination. Upon the effective date of termination, all rights and obligations between the parties shall terminate except:

a. each party's duty of Confidentiality pursuant to Section 8 of this Agreement shall continue in full force and effect;

b. TrafficZ shall make Commission payments to Client for Net Revenue validly earned through the date of termination, in accordance with the terms of Section 6 of this Agreement, except in the case of termination pursuant to Section 6.2(c)(iii) - (v) hereof, in which case any unpaid Commissions will be forfeited; and

c. Each party shall remove the other party's intellectual property from its respective websites and/or marketing materials, if any.

Section 7. Ownership and Licenses.

7.1 Except as expressly set forth herein, nothing in this Agreement shall vest in Client any right, title or interest in the TrafficZ intellectual property or any copyright, trademark or other intellectual property rights therein. All service marks, logos, trade names, trade dress, and trademarks of TrafficZ (collectively the "Marks") are the exclusive property of TrafficZ and nothing in this Agreement shall grant you the license to use such Marks. All intellectual property rights in the Program and Services, including without limitation all computer code, audio, graphics, multimedia, images, sounds, and text incorporated into the Program or Services, are owned exclusively by TrafficZ and/or its partners and are protected by United States copyright laws and international copyright treaty provisions. Any violation of the terms set forth herein is expressly prohibited by law and may result in severe civil and criminal penalties.

7.2 Subject to the terms and conditions set forth herein, and during the entire Term of this Agreement, Client grants to TrafficZ the exclusive worldwide license to use the Monetized Domains to provide the TrafficZ Program and Services. Notwithstanding the foregoing, except as expressly set forth herein, nothing in this Agreement shall vest in TrafficZ any right, title or interest in the Monetized Domains or any copyright, trademark or other intellectual property rights therein.

7.3 Each party reserves all rights in its intellectual property not otherwise specifically granted herein.

Section 8. Confidentiality.

During the Term of this Agreement, and for two (2) years following termination thereof, the parties mutually agree to safeguard and, except for the benefit of the Program, not to disclose to anyone outside the Program any proprietary or confidential information of the other party acquired during the Term of this Agreement. Such information includes, without limitation, business plans, customer lists, operational procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries and improvements of any kind. Client hereby agrees that the server logs and related data maintained by TrafficZ shall remain the sole property of TrafficZ and do not constitute confidential information that Client has any rights to.

Section 9. No Guarantee.

TrafficZ makes no guarantee or other representation regarding the amount of Commissions to be paid to Client under this Agreement. TrafficZ's system tracks Net Revenue. These estimates may or may not reflect actual revenue related thereto.

Section 10. Warranty Disclaimer.

THE TRAFFICZ PROGRAM AND SERVICES PROVIDED BY TRAFFICZ ARE PROVIDED "AS IS" AND/OR "AS AVAILABLE". TRAFFICZ AND ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, ASSIGNS, NETWORK SERVICE PROVIDERS, PARTNERS OR EMPLOYEES MAKE NO WARRANTY TO YOU OR TO ANY OTHER INDIVIDUAL OR ENTITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, TITLE, NONINFRINGEMENT, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR A PARTICULAR USE OR PURPOSE AS TO THE PROGRAM OR SERVICES PROVIDED TO YOU, OR AS TO ANY OTHER MATTER, ALL SUCH WARRANTIES HEREBY BEING EXPRESSLY EXCLUDED AND DISCLAIMED. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE PROGRAM AND/OR SERVICES. NEITHER TRAFFICZ NOR ANY OF ITS AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, ASSIGNS, NETWORK SERVICE PROVIDERS, PARTNERS OR EMPLOYEES WARRANTS THAT THE PROGRAM OR SERVICES ARE ERROR FREE OR WILL OPERATE WITHOUT INFORMATION LOSS OR INTERRUPTION, NOR DOES TRAFFICZ WARRANT ANY CONNECTION TO OR ANY TRANSMISSION OVER THE INTERNET. FURTHERMORE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY THAT THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL PRODUCE ANY LEVEL OF PROFITS OR BUSINESS FOR THE OTHER PARTY.

Section 11. Indemnification.

You agree to indemnify TrafficZ for certain of your acts and omissions. You agree to indemnify, defend, and hold harmless TrafficZ, its affiliates, officers, directors, shareholders, employees, agents, successors, assigns from any and all third party actions, claims, demands, loses, liabilities, damages, recoveries, settlements and/or costs (including attorney, accountant, and expert witness fees and costs), known or unknown, contingent or otherwise, arising directly or indirectly out of or relating to this Agreement and/or the existence, use and maintenance of Client's Domain Names.

Section 12. Limitation of Liability.

TO THE MAXIMUM EXTENT OF THE LAW, IN NO EVENT SHALL TRAFFICZ, ITS DIRECTORS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS, SUBSIDIARIES, PARENT COMPANY, LICENSORS AND ADVERTISING PARTNERS OR PROVIDERS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES LOST OR IMPUTED PROFITS OR DATA OR ROYALTIES, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE TRAFFICZ PROGRAM OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY OR THROUGH TRAFFICZ. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. YOU HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY. FUTHERMORE, IN NO EVENT SHALL TRAFFICZ'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE TRAFFICZ PROGRAM OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY OR THROUGH TRAFFICZ EXCEED THE TOTAL SUMS PAID, OR PAYABLE, TO YOU UNDER THIS AGREEMENT.

Section 13. Prohibited Uses.

TrafficZ imposes certain restrictions on your permissible use of the TrafficZ Program and/or Services and the Site. You are prohibited from violating or attempting to violate any security feature of the Program, Services or Site, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Program, Services, the Site, or any associated system or network, or to breach the security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any client, end user, host, or network, including, without limitation, by means of submitting a virus to the Program, Services or Site, overloading, flooding, spamming, mail bombing, or crashing; (d) forging any TCP/IP packet header or any part of the header information in any email or in any posting using the Program; or (e) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by TrafficZ in providing its Program, Services or Site. Any violation of system or network security may subject you to civil and/or criminal liability.

Section 14. Governing Law.

This Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in Los Angeles, California, USA in all disputes arising out of or related to the use of the TrafficZ Program or Services.

Section 15. Severability; Waiver.

If, for whatever reason, a court of competent jurisdiction finds any terms or conditions in this Agreement unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision hereof. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

Section 16. Third Party Beneficiary.

Client hereby acknowledges that Overture is a third party beneficiary of this Agreement and is entitled to enforce the provisions of this Agreement as they pertain to Overture.

Section 17. Notices.

You agree to accept any notice under this Agreement via email at the email address you provide to TrafficZ. You further agree that any notice under this Agreement to TrafficZ shall be in made in writing and sent to the following address:

TrafficZ, Inc.
ATTN: Legal Department
11300 W. Olympic Blvd. Suite 900
Los Angeles, CA 90064

Section 18. Modification to Agreement.

TrafficZ may amend or modify this Agreement at any time, with or without notice, in its sole and absolute discretion. All amended terms shall automatically become effective on the 15th day after the date upon which the amended terms and conditions are posted on this site or upon Client accessing the Program, Site or Service after the posted date, whichever date occurs first. The Posted Date shall be displayed at the top of this document.

Section 19. General.

This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral. There are no terms, obligations, covenants, representations, statements, understandings or conditions relating to the subject matter hereof other than those contained in this Agreement. TrafficZ may assign its rights and duties under this Agreement to any party at any time without notice to you. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control, including, but not limited to: earthquake, flood, fire, storm, or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of business, including Internet connectivity, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment, or decree. The parties hereto are independent contractors. This Agreement shall not be construed to create a joint venture or partnership between the parties, and neither party shall be deemed an employee, agent or legal representative of the other for any purpose or have any right, power or authority to create any obligation or responsibility on behalf of the other except as specifically set forth herein. The section headings contained herein are solely for the purpose of reference, are not part of the Agreement of the parties and will not in any way affect the meaning or interpretation of this Agreement.