TrafficZ

TRAFFICZ DOMAIN MANAGEMENT SERVICES AGREEMENT

This Domain Management Services Agreement (the "Agreement") shall govern the terms and conditions of your participation in the TrafficZ program (the "Program"). By participating in the Program, you (the "Client" or "you") agree to be bound by the terms of this Agreement. The term "Client" herein shall refer to any individual or entity who accepts the terms and conditions of this Agreement by submitting registration information, checking the "I Agree" checkbox at the time of registration and/or executing this Agreement (the "Effective Date"). By using and/or participating in the TrafficZ Program, you acknowledge that you have read, understood and agreed to be bound by the terms and conditions of this Agreement (as amended from time to time by TrafficZ in its sole and absolute discretion). The Program is offered to you by Thought Convergence, Inc., a California corporation doing business as TrafficZ ("TrafficZ").



BY REGISTERING FOR AND/OR USING THE TRAFFICZ PROGRAM OR SERVICES, YOU AGREE AND CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE. PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, DO NOT INDICATE YOUR ACCEPTANCE AND DO NOT USE THE TRAFFICZ PROGRAM OR SERVICES.



Recitals

Agreement


  1. Section 1. Definitions.
    1. "Domain Name" shall mean a series of strings separated by periods for the purpose of addressing a computer network connection, that is registered, in good standing, with an accredited Internet Corporation for Assigned Names and Numbers (ICANN) registrar.
    2. "Parked Domain" means any Domain Name owned, controlled and/or operated by Client that is managed through the TrafficZ Program and/or utilizing the Services.
    3. "End User" means a visitor to one of Client's Parked Domains.
    4. "Estimated Click-Through Revenue" means the Net Revenue that TrafficZ estimates it will receive from its Search Engine partners who have agreed to display their Search Results within the TrafficZ Program. TrafficZ shall in its sole and absolute discretion be the determinant of such Estimated Click-Through Revenue.
    5. "Search Engine" means an entity which is in the business of maintaining an Internet website through which individuals or entities can enter keywords or phrases to locate information, products or services on the World Wide Web.
    6. "Search Results" means the paid listings delivered by a Search Engine and displayed in response to a Search Request.
    7. "Search Request" shall mean a search initiated by an End User on one of Client's Parked Domains.
    8. "Net Revenue" means, with respect to the applicable period, the estimated revenue to be received by TrafficZ from its Search Engine partners, less
      1. amounts attributable to Collection Risk and Distribution Costs, and
      2. any refunds paid to advertisers."Collection Risk" shall mean those costs associated with collection of revenue, including credit card charges, charge backs, bad debts, invoice and traffic adjustments and advertiser incentives; and "Distribution Costs" shall mean those costs associated with the distribution of the Search Results such as Web search fees, agency and referral fees and reporting and tracking costs.
    9. "Landing Page" means an Internet web page, that TrafficZ owns or controls, that the End User will be presented upon visiting one of Client's Parked Domains.
    10. "Click-Through" shall mean the physical act of an individual End User clicking on a Search Result.
    11. "Stress Test" means any program, software or person that sends Search Requests or Click-Throughs to TrafficZ's servers in an automated fashion and/or that were not initiated by an End User on Client's Parked Domains.
  2. Section 2. Duties of the Parties.
    1. Subject to the terms hereof, TrafficZ agrees to make available to Client's Parked Domains a Landing Page through which a Search Engine will be linked for the act of providing Search Results in response to Search Requests by End Users of Client's Parked Domains, unless TrafficZ determines in its sole and absolute discretion that Client has committed a Duties Violation. For purposes of this Agreement, a Duties Violation shall mean any event that is in violation of Client's covenants as set forth in Sections 2.2 through 2.6 hereof. Notwithstanding the foregoing, the delivery of the Services by TrafficZ hereunder are entirely discretionary. At any time and for any reason, TrafficZ may exclude individual or multiple Parked Domains from the Services. Furthermore, TrafficZ reserves the right to deny Services to Client at any time and for any reason.
    2. Upon the Effective Date and throughout the Term of this Agreement, Client agrees to:
      1. change the Domain Name Servers of each Parked Domain to the Domain Name Servers and IP addresses specified by TrafficZ and/or redirect each Parked Domain to the Internet URL specified by TrafficZ.
      2. provide a list of all Parked Domains to TrafficZ within five (5) days of parking such domains.
      3. not Stress Test any aspect of the TrafficZ Program or Services.
      4. never disclose proprietary information about the TrafficZ Program or Services, including but not limited to URLs, parameters, data reported, revenues earned and the look, feel and functionality of the Program and Services.
      5. not pop-up or pop-under any Parked Domains without the prior written approval of TrafficZ.
      6. not redirect traffic to Parked Domains, including traffic redirected from non-parked domains and/or purchased traffic such as pop-under or exit traffic, without the prior written approval of TrafficZ.
      7. not generate traffic to Parked Domains or clicks on Search Results 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, or any other similar method.
      8. not utilize or permit to be utilized any Parked 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.
      9. make reasonable efforts to prevent bots or spiders from initiating requests for Parked Domains, Search Results, or executing Click-Throughs on the TrafficZ Program Landing Pages.
    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 park with the Program 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 Parked Domain. ?lient is responsible for conducting a trademark search (and/or all other applicable legal searches) concerning each Parked 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 parked with the Program constitutes a trademark violation.
    4. TrafficZ may remove or require Client to remove any Domain Name from the Program that TrafficZ, in its sole and absolute discretion, deems as inappropriate, offensive, unproductive and/or otherwise questionable in nature.
    5. Throughout the Term of this Agreement, Client shall not solicit directly or indirectly any Search Engine partners associated with TrafficZ, provided, however, that Client may maintain existing relationships with Search Engine partners that were in place prior to the Effective Date of this Agreement.
    6. Client shall not intentionally post misleading information with regard to Parked Domains. Client shall not act, either directly or indirectly, to encourage or require End Users, either willingly or unwillingly, to click on Search Results listings and/or to generate Click-Throughs through any means which could be reasonably interpreted as coercive, incentivized, misleading, malicious or otherwise fraudulent in nature. Client agrees that TrafficZ may ignore or credit back Estimated Click-Through Revenue which TrafficZ, in its sole and absolute discretion, believes is questionable in nature or otherwise of low quality in nature or source.
  3. Section 3. Payment.
    1. During the Term of this Agreement, TrafficZ agrees to pay Client a commission (the Commission based upon revenues earned from Client's Parked Domains. Such Commission shall be equal to Fifty Percent (50%) of all Estimated Click-Through Revenue received by TrafficZ resulting directly from End User Click-Throughs of Search Results on Landing Pages of Client's Parked Domains. In addition, if Client has elected, in its sole and absolute discretion, to activate MaxPay for any of its Parked Domains, then, only for those Parked Domains with MaxPay activated, the Commission shall further include $0.003 per unique and qualifying End User that visits Client's Parked Domains in a given 24-hour period (excluding low quality, disqualified IP addresses and certain non-U.S. based sources, as in effect from time to time).
    2. TrafficZ will track the Commissions, as set forth in Section 3.1 above, and pay 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 Search Engine 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.
    3. Client acknowledges and agrees that TrafficZ may, in its sole and absolute discretion, withhold payment for, ignore or credit back Estimated Click-Through 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 set forth in this Agreement. Client also agrees that TrafficZ shall not include in its Estimated Click-Through Revenue calculations any Click-Throughs for which it is unable to charge its partners (i.e., in the event of a system failure or other technical difficulty with TrafficZ, TrafficZ will not be liable to pay Client for clicks delivered to TrafficZ partners, but not otherwise recorded or charged to partner accounts).
    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 measurements or calculations 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 material 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.
    5. Client understands, acknowledges and agrees that TrafficZ shall not withhold taxes from any payments due to Client and that it is the sole responsibility of Client to pay all local, state, federal and/or foreign taxes on income received from the Program. Notwithstanding the foregoing, Client agrees to provide to TrafficZ all necessary taxpayer identification information in order for TrafficZ to comply with U.S. state and federal tax reporting requirements. Failure to provide such necessary taxpayer identification information may result in forfeiture of Client's Commissions. Client agrees to indemnify from and reimburse to TrafficZ any claim or assessment of taxes by any foreign or United States federal, state and/or local taxing authority, and any other costs and damages, arising from or in connection with the operation of this Section.
  4. Section 4. Term and Termination.
    1. Term This Agreement will become effective upon Client's acceptance of the terms and conditions set forth herein, as acknowledged by Client's: (i) submission of the Program registration information; (ii) checking of the I Agree checkbox at the time of registration; and/or (iii) use of the TrafficZ Program or Services. The Agreement shall continue in effect until otherwise terminated pursuant to the terms hereof (the "Term").
    2. Termination Notwithstanding Section 4.1, this Agreement may be terminated as follows:
      1. 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 shall have continued uncured for a period of 30 days following written notice of such default given by the non-defaulting party to the defaulting party.
      2. 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 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 30 days.
      3. TrafficZ may terminate this Agreement effective immediately and without notice if (i) Client's account remains idle for any consecutive 30-day period; (ii) TrafficZ determines, in its sole and absolute discretion, that the quality or nature of the traffic delivered by Client is not satisfactory; (iii) TrafficZ determines, in its sole and absolute discretion, that Client is violating Sections 2.2 or 2.6 hereof, or is otherwise delivering any fraudulent or questionable traffic; or (iv) Client has had three or more Duties Violations, as set forth in Section 2.1, and has received prior notice of each Duties Violation from TrafficZ.
      4. Either party may terminate this Agreement at any time for any reason, effective upon 30-days written notice of such intent to terminate given by the terminating party.
    3. Effect of Termination. Upon the effective date of termination, all rights and obligations between the parties shall terminate except:
      1. each party's duty of Confidentiality pursuant to Section 6 of this Agreement shall continue in full force and effect;
      2. TrafficZ shall make Commission payments to Client for Click-Through Revenue validly earned through the date of termination, in accordance with the terms of Section 4 of this Agreement, except in the case of termination pursuant to Section 4.2(c) hereof, in which case any unpaid Commissions will be forfeited; and
      3. Each party shall remove the other party's intellectual property from its respective websites and/or marketing materials, if any.
  5. Section 5. Ownership and Licenses.
    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 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.
    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 Parked 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 Parked Domains or any copyright, trademark or other intellectual property rights therein.
    3. Each party reserves all rights in its intellectual property not specifically granted herein.
  6. Section 6. Confidentiality.
    1. Client agrees that the terms of this Agreement are strictly confidential, and that Client will not disclose such terms of this Agreement to any third party without the prior written consent of TrafficZ. During the Term of this Agreement, and for two years following termination of this Agreement, 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.
  7. Section 7. No Guarantee.
    1. TrafficZ makes no guarantee or other representation regarding the amount of Commissions to be paid to Client under this Agreement. TrafficZ's system tracks, and payments are made with respect to, Estimated Click-Through Revenue. These estimates may or may not reflect actual Click-Throughs or revenue related thereto.
  8. Section 8. Warranty Disclaimer.
    1. THE TRAFFICZ PROGRAM AND SERVICES PROVIDED BY TRAFFICZ ARE PROVIDED AS IS 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 AFFILATES, 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.
  9. Section 9. Indemnification.
    1. Client agrees to indemnify, defend and hold harmless TrafficZ, and its officers, directors, shareholders, employees, agents, successors and assigns from any and all actions, claims, demands, costs, liabilities, damages, recoveries, settlements and expenses (including attorney fees, accountant fees and expert witness fees), known or unknown, contingent or otherwise, arising directly or indirectly out of or related to this Agreement and/or the existence, use and maintenance of Client's Domain Names.
  10. Section 10. Limitation of Liability.
    1. TRAFFICZ, ITS DIRECTORS, AFFILIATES, AGENTS, SUCCESSORS, ASSIGNS, PARTNERS, LICENSORS AND ADVERTISING PROVIDERS, SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) AND REGARDLESS OF WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. YOU HEREBY WAIVE ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE YOU OF AN ADEQUATE REMEDY. FURTHERMORE, IN NO EVENT SHALL TRAFFICZ'S TOTAL LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL SUMS PAID, OR PAYABLE, TO YOU UNDER THIS AGREEMENT.
  11. Section 11. General.
    1. 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. Except as otherwise set forth herein, no variation or modification of this Agreement or waiver of any of the terms or provisions hereof will be deemed valid unless in writing and signed by both parties. If any clause or provision in this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, it will not affect the validity of any other clause or provision this Agreement, which will remain in full force and effect. This Agreement shall be governed in accordance with the laws of the State of California, and any dispute between you and TrafficZ regarding this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts in the State of California. TrafficZ's failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of 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.
    2. TrafficZ reserves the right to modify or change any of the terms and conditions of this Agreement at any time, in our sole and absolute discretion, by posting a change notice or a new Agreement on the TrafficZ website and/or Domain Manager client interface. You agree to check the TrafficZ website and/or Domain Manager client interface periodically to review such modifications. If any modifications are unacceptable to you, your only recourse is to terminate this Agreement. By continuing to participate in the TrafficZ Program and/or use the TrafficZ Services following the posting of a change notice or a new Agreement, you are accepting and agreeing to the change.


YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT AND THAT, BY PARTICIPATING IN THE TRAFFICZ PROGRAM AND/OR USING THE TRAFFICZ SERVICES, YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

I AGREE AND ACCEPT THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE.