Service Agreement and Publisher Marketing Agreement

AGREEMENT (this “Agreement”) is effective today between Actionpay, Inc, a Delaware company, having offices in 2225 E. Bayshore Road Suite 200 Palo Alto, CA 94303, and the parties listed below (“Publisher and/or Advertiser”).

General Acknowledgments

WHEREAS, Actionpay wishes to engage Publisher, Network and/or Advertiser to perform the Sales and Marketing Services, and Actionpay wishes to accept such engagement, upon the terms and subject to the conditions contained herein.

NOW, THEREFORE, in consideration of the premises and mutual covenants and conditions contained herein the parties, intending to be legally bound, agree as follows:

1. Programs Precedent.

(a) Program Description. Actionpay is an application service provider and as such, provides services through the Internet (“Network Services”) which are used for by Publisher for marketing programs (“Marketing Program”) that promote Actionpay’s platform. Publisher will use entire web-sites, portions of web-sites or other promotional methods to “drive sales traffic” to another entity’s (“Advertiser”) Web site or Web site content for Advertiser’s products (“Advertiser’s Programs”). Publisher may earn compensation (“Payments”) under this Agreement for various actions (“Transactions”) taken by site visitors (“Customers”) through an internet connection (“Link”) to a Web site or to Web site content that is operated by Advertiser. Advertiser will define the types of Transactions taken by Customers for which Publisher will be compensated. A Customer may not be Publisher, any officers or employees of Publisher, or Publisher’s agent unless specifically agreed to by Advertiser. An agent is anyone who follows Publisher’s directions or takes specific action reasonably knowing that such action will benefit Publisher. Payment of compensation by Publisher to any person based on that person’s visitation to a Web Site or to Web site content will be evidence of “agent” status but agent status may also be determined based on legal and familial relationships. Advertiser will specify the type of marketing and promotional method that is to be used by Publisher to drive sales traffic. Publisher’s compensation is paid in accordance with this Agreement.

(b) Acceptance by Advertiser. During this Agreement, Publisher may apply to Advertiser to become part of and to promote Advertiser’s Programs and earn Payments in accordance with Advertiser’s Program terms and in compliance with this Agreement. Advertiser’s approval is not guaranteed and is in Advertiser’s sole discretion. Upon approval by Advertiser for acceptance into its Program, Publisher may display (and remove) Links to Advertiser’s Web site or Web site content in accordance with the Advertiser’s Program terms and this Agreement. An Advertiser’s acceptance of Publisher is only applicable to the entity, or individual, that enters into this Agreement with Actionpay as an Publisher.

(c) Program Terms. The details of an Advertiser's Program shall be available through Actionpay’s Network Service. The Advertiser will define the Transactions that qualify for a Payment through Actionpay’s Network Service. Advertisers may change the conditions that qualify for a Payment and the Payment rate upon no less than 7 days written notice through the Actionpay’s Network Service with effect from the 8th day (or such later date as specified by Advertiser).

2. Enrollment in the Actionpay Platform.

(a) Application Submission Requirements. To begin the enrollment process, you must submit a complete and accurate Application via the Site. To join the Actionpay publisher tracking platform (“Actionpay Platform”) as a Network Operator, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the Actionpay Platform. Actionpay will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supplied with your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Actionpay of same to reflect such changes in your Network Operator profile.

(b) Effective Date. You accept the terms and conditions contained in this Agreement by completing the Application and clicking “Create Account.” The Agreement is effective as of the date that Network Operator submits the Application (the “Effective Date”), provided that Actionpay does not reject the Application. Actionpay may reject your Application in its sole discretion.

(c) Actionpay does not represent or warrant that the information posted in the Actionpay Platform is accurate, complete or appropriate.You understand and agree that Actionpay is not responsible or liable in any manner whatsoever for your inability to use the Actionpay Platform. You understand and agree that Actionpay shall not be liable to you or any third party for any claim in connection with your use of the Actionpay Platform.

(d) You agree not to access (or attempt to access) the Actionpay Platform by any means other than through the interface that is provided by Actionpay, unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Actionpay. You specifically agree not to access (or attempt to access) the Actionpay Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Actionpay Platform.

(e) You agree that you shall not engage in any activity that interferes with or disrupts the Actionpay Platform (or the servers and networks which are connected to the Actionpay Platform).

(f) Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and Actionpay, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Actionpay Platform or any element of the custom network interface website generated through use of the Actionpay Platform (“Custom Network”) for any purpose whatsoever. The rights and services which are the subject matter of these Sections (d) – (g) and 8, below, are of a special, unique, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and which would cause Actionpay great irreparable injury and damage. Accordingly, Actionpay shall be entitled to injunctive relief, specific performance and other equitable relief to preserve its rights and interest in and to such rights and services as set forth herein. This provision shall not, however, be construed as a waiver of any rights Actionpay may have for any and all damages as set forth under this Agreement as well as those provided for by all applicable federal and province law.

(g) You agree that you are solely responsible for (and that Actionpay has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which Actionpay may suffer) of any such breach.

3. Privacy and Custom Network Security.

To ensure the optimal level of protection for your confidential and/or proprietary information you agree to take proactive measures to restrict access to your computer, the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for maintaining the confidentiality of your account and password and for restricting access to your computer and the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for all activities that occur under your account or via use of your password. If you become aware of any unauthorized use of your password or of your account, you agree to notify Actionpay immediately.

4. Network Operator/Custom Network.

(a) Actionpay grants to Network Operator a non-exclusive, non-transferable, revocable and limited license to use the Actionpay Platform for a fee, if applicable, as set forth herein below, in accordance with the terms of the Agreement. The Actionpay Platform enables interested publisher network operators to: (a) attract and register third party publishers (“Publishers”) that may then access advertiser-provided advertisements (“Ads”) on the applicable Custom Network;

(b) attract and register third-party advertising partners (“Advertisers”) that may then make their Ads available to Publishers on the applicable Custom Network; and (c) manage all aspects of the Custom Network including, without limitation, calculating commissions, tracking sales or other compensable actions, making payments and establishing rules for campaigns and (d) serve Ads and/or any media files including, but not limited to videos, images, flash banners, and html files on the Actionpay Platform.

(c) Individuals/entities who purchase any product and/or service (collectively, “Custom Network Products”) made available through your Custom Network or who perform any other transaction through your Custom Network (“Custom Network Customers”) shall not be deemed to be the customers of Actionpay. Publishers and Advertisers that enroll in Network Operator’s Custom Network shall not be deemed to be the customers, clients or business associates of Actionpay. Actionpay has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Network Operator and its Custom Network Customers, Advertisers or Publishers. Actionpay shall have no obligation to resolve any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers. Network Operator expressly agrees to indemnify and hold Actionpay, its parents, publishers and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/ or settlement costs) arising from any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers.

(d) Actionpay may use the personal information of a Network Operator in any manner consistent with the Privacy Policy. For additional information regarding Actionpay collection and use of information, please refer to the Privacy Policy.

5. Ads.

(a) Your Custom Network shall contain Ads made available by your registered Advertisers. As a Network Operator, you agree that you are solely responsible for the Ads that you and/or your Advertisers publish, transmit and/or post by and through the Actionpay Platform. You agree, and shall require that your Advertisers and Publishers agree in writing, to use the Actionpay Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Ads that you and/or your Advertisers post on the Actionpay Platform, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Ads are endorsed by Actionpay, without our specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express advance consent and in conformance with all applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Ads that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Ads that do not fully comply with all applicable local, province and federal laws, rules and regulations. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate Termination of this Agreement and your Custom Network without notice, in the sole discretion of Actionpay. Actionpay reserves the right to pursue any and all legal remedies against Network Operators that engage in the aforementioned prohibited conduct. If we receive reports from our upstream service provider that you, your Publishers, or Advertisers are transmitting chain letters, spam or junk-email, or conducting any other form of abuse, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence and Actionpay reserves the right to automatically disable the tracking link for the publisher and Ad.

(b) Without limiting the foregoing, Actionpay may Terminate and/or suspend any Ads at any time and for any reason, in Actionpay’s sole discretion. Network Operator must immediately remove such Ads after any such suspension or Termination, as applicable.

(c) Notwithstanding the foregoing, Actionpay undertakes no responsibility to monitor or otherwise police: (a) the Ads posted by you and/or your Advertisers on the Actionpay Platform; (b) the website (“Advertiser Website”) linked to from the Ad; (c) the websites of your Publishers (“Publisher Websites”); and/or (d) any of the products and/or services offered on such Advertiser Websites and/or Publisher Websites including, without limitation, the applicable Custom Network Products. You agree that Actionpay shall have no obligations and incur no liabilities to you in connection with any such Ads, Advertiser Websites or Publisher Websites.

6. Custom Network Products.

Actionpay reserves the right to prohibit the marketing of any Custom Network Products at any time and for any reason, in Actionpay sole discretion. Network Operator must immediately cease marketing such Custom Network Products after receipt of notice of any such prohibition.

7. Non-Endorsement.

Actionpay operates the Actionpay Platform as a neutral host, and Actionpay does not regularly monitor, regulate or police the use of the Actionpay Platform by any of its participants. The participation in the Actionpay™ Platform by a Network Operator, Publisher, Advertiser, Custom Network Customer or otherwise does not constitute an endorsement by Actionpay of that Network Operator, Publisher, Advertiser, Custom Network Customer or other third party. Actionpay is not responsible or liable for the acts, omissions, agreements, promises, Ads, Custom Network Products, Publisher Websites, Advertiser Websites, other products, services, comments, opinions, advice, statements, offers and other information of any Network Operator, Publisher, Advertiser, Custom Network Customer or other third party using the Actionpay Platform.

8. Proprietary Rights.

(a) Network Operator grants to Actionpay a royalty free, worldwide license (“Network Operator License”) to: (a) display on, and distribute through, the Actionpay Platform, Site and in related marketing material produced and distributed by Actionpay, the Ads and any other information posted in the Actionpay Platform or otherwise made available by Network Operator, its Advertisers and/or Publishers by and through Network Operator’s Custom Network. The Network Operator License shall last for the duration of the Agreement.
(b) Actionpay grants to Network Operator a limited, revocable, non-transferable license to use the Actionpay Platform solely and exclusively as contemplated by the Agreement (“Actionpay License”).
(c) The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, and other matters related to the Actionpay Platform, (and any products or services that Actionpay does now or at any time in the future may make available to you), is protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Network Operator of any part of the Actionpay Platform, other than as contemplated hereunder, is strictly prohibited.
(d) Network Operator agrees that its use of the Actionpay Platform, any Actionpay logos, trademarks, Transaction Tracking Codes (as defined below) and other material made available by and through the Actionpay Platform is subject to the Actionpay License granted hereunder.
(e) Network Operator does not acquire any ownership rights to the Actionpay Platform or any material made available by and through the Actionpay Platform. The availability of the Actionpay Platform, and the associated material, does not constitute a waiver of any rights related thereto.

9. Term and Termination.

(a) The services under this agreement are provided by Actionpay to Network Operator on a month-to month basis, and as such each of the Parties, may, in its sole discretion, terminate the Agreement (and thereby the services) at any time, with or without cause, upon thirty (30) days prior written notice to the other party (“Terminat(ion)”). Actionpay may suspend (“Suspend(tion”) Network Operator’s services at any time, without advance notice, for any reason that it finds valid in its sole discretion until cured, including but not limited to where Actionpay believes that: (a) you are in any way in breach of the Agreement; (b) any Ads or Custom Network Products are unsuitable for the Actionpay Platform for any reason including, without limitation, that the Ads contain, or link to, or that the Custom Network Products consist of, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (c) you or your Advertisers, at any time, are conducting commercial activities that do not fully comply with all applicable local, province, federal and foreign laws, rules and regulations; and (d) you fail to pay any of the fees herein within seven (7) days of receipt of invoice.
(b) Network Operator may Suspend or remove any Ads, Publishers and/or Advertisers at any time with or without notice.
(c) If Network Operator’s participation in the Actionpay Platform Terminates or Actionpay Suspends such participation for any reason, Actionpay may, with or without notice remove all Ads and cancel any Custom Network activity immediately or, in Actionpay discretion, at any time thereafter.
(d) Upon any Termination or Suspension of the Agreement and/or Network Operator’s participation in the Actionpay Platform: (a) the Actionpay License and any and all other licenses and rights granted to Network Operator in connection with the Agreement shall immediately expire; and (b) any and all confidential or proprietary information of Actionpay that is in Network Operator’s possession or control must be immediately returned or destroyed. If requested, Network Operator will certify in a writing signed by Network Operator or an authorized officer of Network Operator that all such confidential and/or proprietary information has been returned or destroyed.
(e) If Actionpay Terminates Network Operator’s services for breach of the Agreement, including for non-payment: (i) Network Operator shall not be eligible to enter into a new Network Operator Agreement with Actionpay, or any other agreement for other Actionpay products and/or services, and any attempt to do so shall be null and void; and (ii) Except where such action would violate any applicable law, Actionpay reserve the right to sell Network Operator’s personally identifiable information, but specifically excluding sensitive information, to Network Operator’s Advertisers and Publishers or to any debt collection company in an effort to recoup any outstanding balances. Actionpay may use Network Operators data in the process to sell the data. Any profit gained in such a transaction will be realized by Actionpay only.

10.  Publisher’s Actions and Obligations

(a) Accurate, Up-to-Date Information. Publisher agrees to provide Actionpay and Advertiser with accurate information about Publisher and Publisher’s promotional methods, and to maintain up-to-date “Account” information (such as contact information and Web sites used). In Publisher’s Account, Publisher must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special.” Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the Advertiser. Actionpay reserves the right to define any program as special. 
(b) Updating Links. If Links to Advertiser are not dynamically updated through the Network Service, upon notification by Advertising or Actionpay, Publisher is obligated to update the Advertiser's Links in order to earn Payments.
(c) Applicable Codes and Code Maintenance. In order for Actionpay to record the tracking of Customer’s' Transactions resulting from clicks on Links to Advertisers promoted by Publisher, Publisher must include and maintain a Actionpay “Tracking Code” within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format.
(d) Usage and Security of Account. Publisher is responsible for all usage and activity on Publisher’s account and for loss, theft, or unauthorized disclosure of Publisher’s password (other than through Actionpay's negligent or willful conduct or omission). Publisher shall provide Actionpay with prompt written notification of any known or suspected unauthorized use of Publisher’s Account or breach of the security of Publisher’s Account.
(e) Privacy. Publisher must conspicuously post Publisher’s privacy policy on Publisher’s Web site and otherwise make it available to all Customers. Publisher’s privacy policy must comply with all laws and regulations regarding the privacy of Customer information, be commercially reasonable, and fully and accurately disclose Publisher’s collection and use of Customer information. Publisher must fully and accurately disclose Publisher’s use of third party technology, including Actionpay's tracking technology, use of cookies and options for discontinuing use of such cookies.

11.  Advertiser Obligations

(a) Right to Reject Advertisement; Positioning. All contents of advertisements are subject to Actionpay and Advertiser’s approval and may deem Publisher’s promotional activities inappropriate and a material breach of this Agreement in Actionpay’s sole discretion. Actionpay and Advertiser reserve the right to reject or cancel any advertisement, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by Actionpay or Advertiser that any placement thereof may subject Actionpay or Advertiser to criminal or civil liability. Advertising that violated Actionpay policy or Advertiser’s policy is grounds for termination of this Agreement as further described below.
(b) Additional Contractual Relationships. Publisher and Actionpay’s Advertisers may enter into direct contractual relationships. These relationships may be established either in the form of an offer made to Publisher by Advertiser through an area established by Actionpay for members on the Network Service (“Offer”) or through an “apply to join process” in the form of a click-through agreement hosted by Actionpay (“Click-through Agreement”). It is Publisher’s obligation to review and accept or decline the Offer or the Click-through Agreement when such is presented to Publisher. If accepted by Publisher, compliance with the Offer or Clickthrough Agreement is solely Publisher’s responsibility. The terms and conditions of the Offer or Click-through Agreement may supersede or conflict with this Agreement and shall apply only with respect to Publisher’s relationship with that particular Advertiser. Publisher may enforce or terminate the Offer or Click-through Agreement according to the terms of such Offer or Click-through Agreement without consulting Actionpay. Publisher’s actions under the Offer or Click-through Agreement that lead to termination will qualify as grounds for termination of this Agreement.

12.  Publisher’s Prohibited Actions and Acknowledgements.

(a) Locations. If Publisher uses IRC channels, instant messages, or similar Internet resources, then Publisher must designate their program as special requiring manual review and acceptance by the Advertiser in Advertiser’s sole discretion. Publisher may not place Links to an Advertiser's Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email, and other types of spam, link farms, counters, chatrooms, or guestbooks.
(b) Improper Transactions. Publisher must promote Advertiser in such a manner and using such procedures that Publisher do not mislead the Customer, and such that the Links deliver bona fide Transactions by the Customer to Advertiser from the Link. Publisher shall not cause any Transactions to be made that are not in good faith or are misleading, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. Publisher will not be compensated for Transactions where Publisher or Publisher’s agent is the Customer unless specifically agreed to by Advertiser before the Transaction occurs. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. Publisher shall not earn Payments for non-bona fide Transactions.
(c) Infringement. None of Publisher’s promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), Actionpay’s proprietary rights, or a third party's proprietary rights.
(d) Emails. Publisher hereby understands, acknowledges, and accepts that Actionpay, Actionpay systems, Actionpay partners' systems, and/or third party systems may and has/have the right granted by Publisher to send emails and other communications to Publisher on behalf of Actionpay, Advertisers, and other Actionpay partners and publishers, including solicitation and service solicitation emails. Publisher may have the ability to change some of Publisher’s email settings and preferences.
(e) Promotional Materials and Use of Links. Publisher represents and warrants that all promotional means used by Publisher will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hateoriented, illegal, and/or promoting illegal goods, services or activities), and that Publisher will not mislead others. Publisher agree to: (i) use ethical and legal business practices, (ii) comply with the Advertisers' Program terms and this Agreement, (iii) maintain a privacy policy on Publisher’s Web site and for any non-Web site based promotional method made available to Customers, and (iv) designate Publisher’s Publisher Account as “special” if Publisher promotes an Advertiser(s) by any means other than displaying a Link to the Advertiser on Publisher’s Web site.
(f) Compliance with Laws Including CAN SPAM. Publisher represents and warrants that Publisher will at all times fully comply with all applicable statutes, rules and regulations with respect to Publisher’s business and will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), laws governing deceptive trade practices or online marketing/advertising and/or any other laws and/ or regulations that govern email marketing and/or communications.
(g) Prohibited Promotional Actions. Publisher represents and warrants that Publisher will not engage in pop-up or pop-under advertising using any means involving third party properties and/ or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Publisher’s site content /site visit or by downloadable software applications for which Publisher is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the Actionpay Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) end-user agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payment to another Publisher (such as purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing Advertiser/ publisher referrals.
(h) Personally Identifiable Information of Customers. Publisher represents and warrants that Publisher will not enable the Tracking Code to collect personally identifiable information of Customers that would allow Actionpay to personally identify Customers.
(i) No Agreement Violation Acknowledgment: Publisher acknowledges that executing this Agreement will not be a violation of any other agreement Publisher might have with another person or entity.
(j) Publisher shall make no public announcement regarding the existence or content of the Payments without Actionpay’s prior written approval in its sole discretion.

13. Actionpay's Services.

(a) Tracking Transactions and Payments. Actionpay shall determine (where possible) actual Payments that should be credited to Publisher’s Account. Actionpay may, in Actionpay's sole discretion, apply an estimated amount of Payments, if: (i) Publisher is referring Customers to Advertiser as verified by clicks through Links to Advertiser with Actionpay’s Tracking Code, (ii) where there is an error in Advertiser's transmission of Tracking Code data to Actionpay, and (iii) where Actionpay is able to utilize a historical analysis of Publisher’s promotion of Advertiser to determine an equitable amount of estimated Payments.
(b) Charge-backs. An Advertiser may apply, or Actionpay may apply, a debit to Publisher’s Account in an amount equal to a Payment previously credited to Publisher’s Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Customer by the Advertiser; (v) Publisher’s failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Charge-back") or (vi) adjustments necessary to reconcile estimated Payments with actual Payments. Charge-backs may be applied to Publisher’s Account at any time, including previous payment cycles.
(c) Access to Tracking and Reporting Tools. Actionpay shall provide Publisher with access to tracking and reporting tools, and to support services. Actionpay may not be able to provide tracking detail regarding Customer Transactions on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. Actionpay may make available, for fees that Actionpay shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.
(d) Support. Support for Publisher’s program may be available on-line through the "Contact Us" area in the Actionpay Account Manager, which allows Publisher to categorize and describe Publisher’s issue. Actionpay may also make available online help to allow Publisher to check the status of all issues. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of Payments. Subject to other provisions in this Agreement, Actionpay shall credit Publisher’s Account with a Payment for each qualifying Transaction in accordance with the Advertiser's Payment rate and Program terms for the relevant Transaction. On the 15th day of each calendar month, Actionpay will issue to Publisher any positive balance in Publisher’s Account for Transactions reported for the previous month, provided Publisher’s Account balance exceeds the required “Minimum Account Balance.” Actionpay shall have no obligation to make payment of any Payments for which Actionpay has not received payment from the relevant Advertiser of all monies due to Actionpay (including for all Payments owed by such Advertiser to all of such Advertiser's Publishers). If Actionpay elects, in its own discretion, not to make payment to Publisher for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Publisher’s recourse for any earned Payments not paid to Publisher shall be to make a claim against the relevant Advertiser(s), and Actionpay disclaims any and all liability for such payment. Publisher may elect to receive payment in any of the currencies that Actionpay supports (as may be amended by Actionpay). The conversion rate shall be determined in accordance with Actionpay’s operating standards using the rates prevailing upon the date that payment is made to Publisher, or upon the basis of historical conversion rates if rates are unavailable. The number or amount of Transactions, credits for Payments, and debits for Charge-backs, as calculated by Actionpay, shall be final and binding on Publisher. Publisher is responsible for paying (and Actionpay has no responsibility to withhold on Publisher’s behalf) any and all required province and federal taxes, including, but not limited to FICA (Social Security), unemployment insurance, federal or province income taxes, disability insurance and workers' compensation insurance.
(f) Negative Accounts. Publisher may have a negative balance if Publisher’s Account is debited amounts equivalent to previous Payments for Charge-backs and Publisher does not have an adequate Account balance to cover the Charge-back amounts. When Publisher has a negative balance, Publisher must immediately remit payment to Actionpay in an amount sufficient to bring Publisher’s Account to a zero balance, or Publisher’s Account is subject to 1.5% interest per month, compounded monthly.
(g) Record and Audit Rights. Actionpay shall keep proper records and books of account relating to the computation of payments to be made under this Agreement. Publisher may inspect such records to verify reports upon reasonable prior notice and during standard business hours. Any such inspection will be conducted in a manner that does not unreasonably interfere with Actionpay business activities and, except as provided below, shall be conducted no more frequently than once every six months. Actionpay shall make any overdue payments disclosed by the audit within 30 days of such disclosure.
(h) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.

14. Proprietary Rights.

(a) Linking to Advertisers. For each Advertiser's Program that Publisher has been accepted to, the Advertiser is granting to Publisher the right to display and Link to the Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms for the limited purposes of promoting the Advertiser's Program, subject to the terms and conditions of this Agreement. Publisher’s use of the Link signifies Publisher’s agreement to refrain from copying or modifying any icons, buttons, banners, graphics files, or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between Actionpay and Publisher, Actionpay owns all rights in and to all information regarding the Customers that Publisher refer to Advertisers through Actionpay.
(b) Actionpay's Use of Publisher’s Marks. Publisher authorizes Actionpay to utilize Publisher’s trademarks, service marks, trade names, and/or copyrighted material that Publisher provides to Actionpay through Publisher’s Account to promote Publisher’s participation in the Network Services.
(c) Publisher’s Use of Actionpay's Proprietary Rights. Publisher agrees that Publisher’s use of any Actionpay Web site (such as www.Actionpay.com) and Publisher’s use of any Actionpay trademarks, service marks, tradenames, and/or URLs is subject to the license and terms of use that are available from such Web site ("Terms of Use"). s explicitly agree not to adopt or use in any manner any trademarks, service marks, tradenames, and/or URLs that are the same or confusingly similar to, or are combined with, those of Actionpay.
(d) Retention of Rights. All proprietary rights of Advertisers, Publisher, and Actionpay, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
(e) No Challenge to Actionpay's/Advertiser's Proprietary Rights. Publisher acknowledges that Publisher obtains no proprietary rights in Actionpay's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agrees not to challenge Actionpay's proprietary rights. Publisher acknowledges that Publisher obtains no proprietary rights in Publisher’s Advertisers' proprietary rights, and agrees not to challenge such Advertiser's proprietary rights.
(f) Collection and Use of Data. Actionpay does not collect information about a Network Operator’s Custom Network-related transactions, other than what it receives directly from Network Operator or through the installed Transaction Tracking Codes. Actionpay reserves the right to utilize this data on a non-personally identifiable, aggregate basis, which may include Network Operator’s information, to analyze the performance of the Actionpay Platform and/or Site, monitor the use of the Transaction Tracking Codes and promote Actionpay Platform and/ or Site performance and functionality. When Network Operator’s account is disabled, inactive or paused, including for non-payment, Actionpay reserves the right to utilize Network Operator’s personally identifiable information for their advertisers and publishers.

15. Confidentiality and Noncompetition.

(a) Confidential Obligations. Publisher or Actionpay may provide the other with information that is confidential and proprietary to that party or a third party, is of special and unique value to Actionpay or the third party and relates to the value and the operation of the businesses of Actionpay and a third party and as may be designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information").. During the term of this Agreement, and until such time as the Confidential Information is no longer protected as a trade secret under the laws of Delaware, neither party will use or disclose any Confidential Information' of the other party except as specifically contemplated herein. Both parties will use all commercially reasonable efforts to protect and maintain the confidentiality of the Confidential Information. Subject to the foregoing, Confidential Information shall include, without limitation, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Payments. Confidential Information does not include information that: (i) has been independently developed by the receiving party or was in the possession by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known or is in the public domain through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure without breach of this Agreement; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party. Upon termination of this Agreement, Publisher must destroy or return to Actionpay any Confidential Information provided by Actionpay to Publisher under this Agreement.
(b) Provision of Info to Advertisers/Third Parties. Publisher agrees that Actionpay may, but is not obligated to, provide Publisher’s email address(es) and basic Publisher Account detail (including but not limited to Publisher’s address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. Actionpay may provide any and all Customer, Transaction, and/or Tracking Code data to the Advertiser to which Publisher referred such Customer, and to any third party in Actionpay's sole discretion, including but not limited to all regulatory, legislative, and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
(c) Nonsolitication. During the term of this Agreement and for six months thereafter, Publisher shall not knowingly solicit any on-line advertiser, publisher, Website, or email provider that is a member of the Actionpay. In the event Publisher does so directly contract with such a party, Publisher shall pay Company an additional commission equal to what Company would otherwise have earned had Publisher not violated this Section 15(c).
(d) Noncompetition. During the term of this Agreement and six months after termination of this Agreement, Publisher shall not enter into any agree to provide or provide services similar to the services Publisher is providing under this Agreement with a person or entity offering services and products similar to those offered by any Advertiser which accepted Publisher into its program. The six month time period stated above shall be suspended during each period of time in which Publisher is in breach under this Section. Actionpay further reserves the right to reduce the scope of the obligations under the restrictive covenants in this section unilaterally and without the consent of any other person or entity, effective upon giving notice thereof. The provisions of this Section constitute separate and distinct covenants on the part of Publisher. The restrictions set forth in this Section shall be deemed severable and the invalidity or unenforceability of any restriction shall not affect the validity or enforceability of any of the other restrictions of this Section or any other provisions of this Agreement. If any court or arbitrator of competent jurisdiction determines that any restriction under this Section is unreasonable in scope, duration or geographic area or is unenforceable under applicable law, Actionpay and Publisher agree that the court or arbitrator shall rewrite, strike or eliminate the portion of such restriction that is unreasonable or unenforceable, in which event the remaining portions of such restriction shall continue in force and effect. In the event of any breach by Publisher of the terms and conditions of this Agreement, including this Section, Actionpay shall have the right, among any other rights or remedies at law or in equity, to seek and receive injunctive relief to restrain Publisher from continuing with such breach. As the Actionpay and Publisher’s business is primarily conducted over the internet, Publisher acknowledges that the geographical scope and other restrictive covenants of this noncompetition provision are fair, reasonable and necessary to protect Actionpay and Advertiser’s legitimate interests and investment in its business. Publisher represents and warrants that Publisher’s experience and skills are such that the restrictive covenants set forth in this Agreement, including this Section, will not prevent Publisher from earning as a business person an adequate livelihood for Publisher and those dependent upon Publisher should such restrictive covenants be specifically enforced against Publisher.

16. Term, Termination, Deactivation and Notices.

(a) Term. This Agreement shall begin either upon (1) Publisher’s formal execution of this Agreement or (2) upon Publisher’s indication that Publisher has accepted this Agreement by providing the required information and ‘clicking through' the acceptance button on the Actionpay Web site. This Agreement shall continue until terminated in accordance with the terms of this Agreement.
(b) Mutual Termination.. This Agreement may be terminated by either party upon 15 days notice.
(c) Deactivation of Account.. Publisher’s Account may be deactivated during investigation of breach of this Agreement. Actionpay may also temporarily deactivate or terminate Publisher’s Account if: (i) Publisher or Publisher’s agent are responsible for the improper functioning of Ad Content, or if Publisher otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Publisher’s Account has not been logged into and/or there have been no Transactions credited to Publisher’s Account for any 30 day period; (iii) Publisher maintains a negative balance in Publisher’s Account; (iv) Actionpay determines Publisher is diluting, tarnishing or blurring Actionpay’s proprietary rights; (v) Publisher begins proceedings to challenge Actionpay's proprietary rights; or (vi) a third party (including a Actionpay Advertiser) disputes Publisher’s right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Publisher’s Web site, or through any of Publisher’s promotional means. During deactivation, Publisher shall not accrue Payments in Publisher’s Account. After deactivation and Actionpay’s investigation, Actionpay will notify Publisher if Publisher’s Account is reinstated or is
(d) Termination by Advertiser.. An Advertiser may terminate Publisher, one of Publisher’s Web sites, or Publisher’s ability to use a promotional method, from the Advertiser's Program for any or no reason, upon earlier of the timeframe stated in Advertiser’s Program details or 7 days written notice with effect from the 8th day. Additionally, Advertiser may immediately terminate Publisher from the Advertiser's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring an Advertiser's trademarks, tradenames, and/or service marks, or for Publisher’s material breach of the Advertiser's Program terms or of this Agreement.
(e) Termination or Deactivation by Actionpay.. Actionpay may have a network quality department that reviews publisher conduct. Any suspected fraudulent, abusive or otherwise illegal content or activity by Publisher through Publisher’s promotional methods, or that is perpetrated through use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of Publisher’s Account. Actionpay may also terminate one of Publisher’s Web sites, or Publisher’s use of a promotional method, from an Advertiser's Program, at any time in Actionpay's sole discretion. This Agreement may be terminated immediately upon notice for Publisher’s breach of this Agreement or by notice by Advertiser of Publisher’s breach of any additional agreement with Advertiser. Breach of any Section of this Agreement may result in Chargeback of one or more Payments.
(f) Effect of Termination for Publisher’s Breach.(i) Upon termination of this Agreement, or in case of deactivation of Publisher’s Account, Publisher shall no longer accrue Payments in Publisher’s Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.(ii) If this Agreement is terminated based upon Publisher’s breach, Publisher shall not be eligible to enter into a new click-through Publisher Service Agreement with Actionpay, and any attempt to do so shall be null and void.(iii) Upon termination of this Agreement, any outstanding payments shall be paid by Actionpay to Publisher within 90 days of the termination date, and any outstanding debit balance shall be paid by Publisher to Actionpay within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs.(iv) Upon termination of this Agreement, any permission granted under this Agreement will terminate, and Publisher must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.(v) If Publisher is terminated for violating the terms of this Agreement, and Actionpay believes that Actionpay might be subjected to a Claim (as defined below) under the indemnity provisions of this Agreement, Actionpay may withhold any Payments to Publisher for the time period of the statute of limitations for that particular type of Claim.

17. Representations, Warranties, Disclaimers, and Limitations.

(a) Business Operations. 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 Publisher’s Advertisers liable for any of the consequences of such interruptions. Actionpay may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. Publisher represents and warrants that: (i) Publisher has all appropriate authority to operate, and to any and all content on, Publisher’s Web site(s); (ii) Publisher has all appropriate authority in any promotional method Publisher may choose to use; (iii) Publisher’s Web site(s) and Publisher’s promotional methods do not and will not infringe a third party's, a Actionpay Advertiser's, or Actionpay’s, proprietary rights; and (iv) Publisher shall remain solely responsible for any and all Web sites owned and/or operated by Publisher and all of Publisher’s promotional methods. Actionpay may or may not review all content on Publisher’s Web site or used by Publisher in Publisher’s promotional methods.
(d) Compliance with Laws. Publisher is responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by Publisher or the content of Publisher’s Web site(s) will render Actionpay liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF ACTIONPAY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYMENT PAID TO PUBLISHER DURING THE YEAR PRECEDING THE CLAIM BY ACTIONPAY FOR THE ADVERTISER FOR WHICH THE CLAIM AROSE UNDER THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. PUBLISHER AGREES THAT ACTIONPAY SHALL NOT BE LIABLE TO PUBLISHER, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ACTIONPAY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT ACTIONPAY'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY; (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE; OR (E) THE PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF ACTIONPAY’S OR ADVERTISER’S SERVICE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO PUBLISHERS IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH PUBLISHER. ACTIONPAY IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS, OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION ARE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.

18. Publisher's Indemnification Obligations.

Publisher shall defend, indemnify and hold Actionpay and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement and its representations and warranties, (b) Publisher's violation of any law, or an alleged violation of law by Actionpay that is a direct or indirect result of Publisher's use of the Network Service, (c) Publisher's use of the Network Service, (d) Publisher's participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, including but not limited to any third party claim arising from use of or access to any the advertisements under this Agreement or any material to which users can link or any products or services made available to users, (f) Publisher's acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher's use of internet links via email distribution, (g) any claim that Actionpay is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 18, Actionpay shall promptly notify Publisher, and Actionpay shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold Actionpay harmless. Publisher shall not settle any Claim without Actionpay’s prior written consent. Publisher also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 18. In the context of this Section 18 only, the term “Actionpay” shall include officers, directors, employees, corporate publishers, subsidiaries, agents, and subcontractors.

19. Miscellaneous.

(a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
(b) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for Actionpay, via registered mail, return receipt requested or via an internationally recognized express mail carrier to Actionpay, Inc, 2225 E. Bayshore Road Suite 200 Palo Alto, CA 94303, USA (effective upon actual receipt); and, (ii) for Publisher, at the email (effective upon sending as long as Actionpay does not receive an error message regarding delivery of the email) or physical address listed on Publisher’s Account (effective five (5) days after mailing).
(c) Third Party Disputes. In the event of a third party claim against either: (a) Actionpay's intellectual property; or (b) against Actionpay's right to offer any service or good on Actionpay's Web site(s) or if, in Actionpay's opinion, such a claim is likely, Actionpay shall have the right, at its sole option and in its sole discretion, to (i) secure the right at Actionpay's expense to continue using the intellectual property or good or service; or (ii) at Actionpay's expense replace or modify the same to make it non-infringing or without misappropriation.
(d) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. Publisher agrees that Publisher’s consent is not necessary to modify any Advertiser Service Agreement.
(e) Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of Delaware (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the province courts, and, to the extent that federal courts have exclusive jurisdiction, in the state of Delaware. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. Actionpay controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.
(f) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
(g) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null, or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement.
(h) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Publisher’s consent shall not be required for assignment or transfer made by Actionpay (1) due to operation of law, or (2) to an entity that acquires substantially all of Actionpay's stock, assets, or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Publisher’s use of the Network Service is irrefutable acknowledgement by Publisher that Publisher has read, understood, and agreed to each and every term and provision of this Agreement. Actionpay may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
(i) Marketing. Publisher agrees that Actionpay may identify it as a Actionpay Publisher in client lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein shall require Publisher's prior written consent.
(j) Language – This Agreement has been drafted in English at the request of the parties. Any discrepancies arising between this Agreement and a translation in another language shall be resolved in favor of the English text. (i) Tax Status and Obligations. Actionpay is not obligated to and shall not provide Publisher with tax and/or legal advice. Actionpay undertakes no duty to investigate or research Publisher’s tax status and/or obligations, and such research and investigation is solely Publisher’s responsibility. Publisher is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Customers. If Actionpay provides Publisher with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and Actionpay shall not be responsible for the accuracy of such information. Any Publisher or Advertiser addresses provided to Publisher are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher or Advertiser in such location or elsewhere.
(k) Construction. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom.
(l) Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

The parties declare that they have requested and hereby confirm their request that the present agreement be drafted in the English language; les parties déclarent et par les présentes confirment leur demande à l’effet que le présent document soit rédigé en langue anglaise.