PAID LISTINGS LICENSE AGREEMENTThis License Agreement (“Agreement”) is entered into as of September 16, 2008, (the “Effective Date”), by (“Publisher”) _____________, and Online Media Solutions (Oridian). RECITALS The parties wish to provide for a license to Publisher to display Oridian’s Paid Listings on the Publisher Network sent by Oridian in response to search queries, ad requests based on site pages, and other ad calls or requests for listings made by Publisher to Oridian. NOW, therefore, for good and adequate consideration, the receipt of which is acknowledged, the parties agree as follows: DEFINITIONS1.1 A “Click” occurs when a bona fide Internet user (which excludes a robot, spider, software, scraper or other mechanical, artificial or fraudulent means, or a person who is not seeking to use the Publisher Network for a legitimate web search, e.g., has been paid or otherwise motivated to click, as determined by Oridian’s click filtering and tracking systems) clicks on a Listing and accesses the destination site.1.2 “Listing” means a link to a website that includes the display URL, a title, text that describes the site to which the listing links or encourages the user to visit the site, and may include but is not limited to a tracking URL.1.3 “Publisher Network” means the following web sites which are owned or operated by Publisher or are contractually part of Publisher’s syndication network: .[Client Site Name].1.4 “Paid Listings” means a Oridian product that returns results containing only paid Listings. The amount that an advertiser pays to Oridian influences (among other factors) the position in which the advertiser’s listing appears in our Paid Listings.License2.1 License. Subject to the terms, limitations and conditions herein, Oridian hereby grants to Publisher a non-exclusive license during the Term to publicly display, and allow third parties who operate sites on the Publisher Network to publicly display, Paid Listings in electronic form on the Publisher Network. Publisher and third parties who operate sites on the Publisher Network may not display any Paid Listings via any of the following distribution sources: e-mail, spyware or adware.Limitations on License. The license granted above is conditioned upon Publisher’s, and sites in the Publisher Network’s, observance of the following restrictions: (i) except as expressly permitted herein, Publisher will not display, use, reproduce, cache, store, distribute, make derivative works of, modify, sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way Paid Listings; (ii) Publisher will not modify, add to, edit or delete the URLs, titles or reviews contained within any Paid Listings without Oridian’s prior written approval; (iii) Publisher will not display, sublicense or syndicate Paid Listings on or to any third party or web site outside of the Publisher Network unless it first obtains Oridian’s written consent; (iv) Publisher will use the tracking URLs associated with each individual Listing provided by Oridian, if any, for all Paid Listings included on its Publisher Network (though Publisher may use the display URLs for purposes of displaying the Listing); (v) Publisher will not display any Paid Listings on any adult-oriented web sites without the prior written approval of Oridian; (vi) Publisher will not display any Paid Listings on any obscene, illegal or gambling web sites, or in any manner that violates any applicable laws or regulations or the rights of any third party; (vii) Publisher will not display any Paid Listings, or allow any third parties to display any Paid Listings, via any form of adware, spyware, e-mail or method that violates applicable laws; and (viii) Publisher will not display any Paid Listings, or allow any third parties to display any Paid Listings, to users whose IP address is outside of the United States or Canada, except as described in Exhibit C. Violation of this paragraph will result in the immediate termination of the license granted herein.2.3 Display of Ads via Cookies. If Publisher displays or allows a third party to display Paid Listings via any “cookie” that is downloaded to a user’s computer or browser, Publisher represents and warrants that such cookie shall: (i) not gather any personally identifiable information (such as an individual’s name, telephone number, e-mail address and/or street address) or financial information of the end user; and (ii) not gather any information about the web pages accessed by the computer on which it is installed. Violation of this paragraph will result in the immediate termination of the license granted herein.2.4 Display of Ads on Publisher Network. If Publisher allows any third party to display Paid Listings, Publisher shall: (i) enter into a legally binding contract with such third party that is no less restrictive than the terms, conditions, limitations and restrictions applicable to Publisher under this Agreement, (ii) monitor the activities of such third party on a regular basis to ensure compliance with the requirements herein, and (iii) immediately terminate such third party’s distribution of Paid Listings upon a determination that such third party is in material violation of any of the terms and conditions of such distribution agreement or upon request by Oridian to do so. Violation of this paragraph will result in the immediate termination of the license granted herein.2.5 Query Source Identification. For every ad call or other request for listings to Oridian, Publisher clearly identify to Oridian the query source by providing the originating IP address of the user (not the server making the request), the User Agent of the user’s browser and the HTTP referrer that indicates where the listings are being displayed. PAYMENT TERMS.3.1 Cost Per Click. Subject to the terms and conditions hereof, for any given calendar month, Oridian will pay Publisher a share of revenues from Oridian invoices or charges for all qualified Clicks on listings advertisements, as recorded by Oridian’s, or its customer’s as applicable, click tracking systems. For each Click, the share of revenue paid to Publisher will be equal to the cost-per-click (“CPC”) bid by Oridian for the corresponding keyword(s), less a month-end adjustment for credit card fraud, advertising complaints and similar items. Oridian will determine the CPC bid and include it in the Paid Listings feed sent in response to such request. Oridian will have sole discretion to decide the CPC bid for each Listing, and such CPC bid may change frequently. Publisher may use the CPC bid included in the Paid Listings feed from Oridian solely for the purpose of ranking the Paid Listings and gauging payments from Oridian, but the parties agree that all CPC bid amounts submitted by Oridian are confidential information for internal use only, and shall not be posted on Publisher's web pages or disclosed to any third parties. Oridian shall have no obligation to pay for clicks if Publisher makes any material misrepresentations in Exhibit C or if Publisher violates the license terms set forth in Section 2 above.3.2 Reporting and Payment. Oridian will make its Reporting Center available to Publisher for preliminary daily reporting of clicks, and Publisher acknowledges and agrees that (i) such reporting may not represent the number of qualified Clicks for which Oridian will pay Publisher and (ii) it will control access to and maintain the confidentiality of its password for accessing the Reporting Center. Publisher Information is stored and available for download on the Reporting Center for thirty (30) days and Oridian has no obligation to store and provide access to such information after thirty (30) days. Within 45 days after the end of each calendar month during the Term, Oridian will deliver (a) a report describing invoices and billings to Oridian customers for such calendar month pursuant to Section 3.1 and (b) payment pursuant to Section 3.1; provided, that Publisher has provided the Query Source Identification as described in section 2.5, above. For every request without such information, Oridian’s ability to determine which clicks and ads are qualified or billable is impaired and thus Oridian may not pay Publisher for such clicks and ads. Publisher shall also notify Oridian of any changes, inaccuracies, or incompleteness of any statement Publisher makes on Exhibit C, Part II. Oridian reserves the right to deduct from payments made pursuant to Section 3.1, or otherwise recoup any amounts paid to Publisher in prior months for non-qualified Clicks.3.3 Audit. Each party will maintain accurate records with respect to the calculation of all Clicks and/or payments due under this Agreement. The other party (the “Examining Party”) may, upon no less than 15 days prior written notice to the first party (the “Audited Party”) and no more than once in any twelve month period, cause an independent auditor of nationally recognized standing to inspect the appropriate records of the Audited Party reasonably related to the calculation of such Clicks and/or payments during the Audited Party’s normal business hours. Such examination will be undertaken in a manner reasonably calculated not to interfere with the Audited Party’s normal business operations. The fees charged by such auditor in connection with the inspection will be paid by the Examining Party, unless the auditor discovers an underpayment of greater than 10%, in which case the Audited Party will pay the reasonable fees of the auditor.3.4 Non-qualified Clicks. Oridian shall have no obligation to pay for clicks which are non-qualified clicks as determined by Oridian’s click filtering and tracking systems. Non-qualified clicks may come as a result of but are not limited to clicks (i) generated via automated crawlers, robots or click generating scripts, (ii) that an advertiser receives and rejects, (iii) that come as a result of auto-spawning of browsers, automated redirects, and clicks that are required for users to navigate on the Publisher Network, (iv) that are from users in countries other than those explicitly agreed to in Exhibit C by Publisher and Oridian, (v) that are on expired, cached or over-budget ads, or (vi) that come as a result of any incentive such as cash, credits or loyalty points. Oridian reserves the right to require Publisher to provide server log files that include, but are not limited to, the daily number of clicks delivered to Oridian. In the event that Oridian Customer determines in its sole discretion that Publisher or any third party site in the Publisher Network has delivered non-qualified clicks, low quality traffic, or traffic that violates any material term of this Agreement, Oridian may, at its option, (a) immediately terminate this Agreement upon written notice to Publisher, or (b) require Publisher to immediately cease displaying, and allowing third party sites in the Publisher Network to display, Paid Listings via any particular means, method, product, or third party distributor, and/or () not pay Publisher for the offending clicks.Publisher Obligations.4.1 Implementation of Paid Listings. Within ten (10) days after the Effective Date and after twenty-four (24) hours notice to Oridian, Publisher will begin querying Oridian Customer’s servers for Paid Listings and will implement and display Paid Listings provided by Oridian.4.2 Partner Implementation Guide. Publisher will adhere to all requirements contained in Oridian’s API Partner Implementation Guide. 4.3 Attribution; Look and Feel. Publisher may provide Oridian attribution on pages displaying Paid Listings. The size and location aspects of such attribution shall be at the parties' mutual agreement. Other than as set forth herein, Publisher shall control the look and feel of its search service.
Oridian Customer Obligations.Service Levels/Technical Support. Oridian will use commercially reasonable efforts to provide the Service Levels and Technical Support.PUBLICITY.Oridian may issue a press release to announce the relationship contemplated by this Agreement without the prior written consent of Publisher. Publisher will not make any public statement, press release or other announcement relating to the terms or existence of this Agreement without the prior written approval of Oridian, such approval not to be unreasonably withheld, conditioned or delayed, provided that either party may make such disclosures as may be, in its reasonable opinion of counsel, advisable to comply with a subpoena or other legal process or with applicable laws, regulations or securities exchange rules.INTELLECTUAL PROPERTY OWNERSHIP.7.1 Proprietary Rights of Oridian. Oridian will retain all right, title and interest in and to the Paid Listings, the related databases, all data generated by Oridian’s click tracking system and other performance measurement applications, and all associated intellectual property and proprietary rights worldwide (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers and information, algorithms, taxonomies, trade secrets and other intellectual property rights therein).Proprietary Rights of Publisher. Other than the Paid Listings, Publisher will retain all right, title, and interest in and to the Publisher Network (including, but not limited to, ownership of all copyrights, trademarks, patents, derivative works, modifications, lists of advertisers, algorithms, taxonomies, trade secrets and other intellectual property rights therein).TERM and termination.8.1 Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will end one (1) year later. The Agreement will then automatically renew for successive one (1) year periods, unless either party gives written notice to the other party of its intention not to renew at least sixty (60) days prior to the end of the then-current term or renewal term.Termination. Either party may terminate this Agreement (a) at any time within the first ninety (90) days after the Effective Date, provided that written notice of termination is delivered to the other party within such seven (7) day period, or (b) if the other party (i) materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following delivery of written notice to the breaching party of the breach, or (ii) is subject to voluntary or involuntary bankruptcy proceedings, insolvency, liquidation or otherwise substantially discontinues its business operations. Notwithstanding paragraph 8.2(b) above, Oridian may terminate this Agreement immediately if Oridian determines in its sole discretion that Publisher is in violation of Paragraphs 2.1, 2.2, 2.3, 2.4, 2.5 or 3.3 of this Agreement.8.3 Effect of Termination. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party hereto from any accrued liability (including payments as set forth in the following section) or liability for breach of such party’s obligations under this Agreement. Within thirty (30) days following the expiration or termination of this Agreement, each party will pay to the other party all sums, if any, due and owing as of the date of expiration or termination, net of any amounts due from the other party as of such date. Upon the expiration or termination of this Agreement for whatever reason, each party shall immediately cease to use the other party’s trademarks, proprietary information, Paid Listings, intellectual property (including derivative works or modifications thereof) and Confidential Information in any manner whatsoever, and shall destroy or return (at the option of the other party), any such property, or materials representing the same to the other party, and provide the other party with an officer’s certificate attesting to such return/destruction. For the avoidance of doubt, upon termination or expiration of this Agreement, the license granted hereunder shall terminate and Publisher and its agents shall immediately cease all use of the Paid Listings.8.4 Survival. The provisions of sections 1 and 6-12 (inclusive) will survive any termination or expiration of this Agreement for a period of three (3) years.CONFIDENTIALITY.9.1 “Confidential Information” means information about the disclosing party’s (or its suppliers’) business, products, technologies, strategies, advertisers, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by the disclosing party. Confidential Information of Oridian includes (without limitation) the CPC bids included in its Paid Listings feeds. Confidential Information will not include information that the receiving party can establish (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party.Use of Confidential Information. Each party agrees (i) that it will not use or disclose to any third party or use any Confidential Information disclosed to it by the other except as expressly permitted in this Agreement or as required by a court of law or otherwise compelled to be disclosed pursuant to the legal process or existing laws or regulations, and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.WARRANTY AND INDEMNITY.10.1 Warranties. Oridian warrants that it owns, or has obtained the right to distribute and make available as specified in this Agreement, the Paid Listings provided to Publisher in connection with this Agreement. Except as specifically provided herein, Oridian does not guarantee or make any representations or warranties whatsoever (i) with respect to the completeness of any Listings or links or information accessed through such links or (ii) with respect to the content of the web sites accessed through the Listings or links provided hereunder. Oridian does not warrant, represent or guarantee that the use of ITS LISTINGS or links, or any other services provided in connection with or in addition to the foregoing will be uninterrupted, undisrupted or error-free. Publisher represents and warrants that (i) its display of Paid Listings hereunder (including its allowing third parties to do so) does not and will not violate any term or condition of this Agreement and (ii) the information provided in Exhibit C is accurate and complete.10.2 Indemnification. Each party will indemnify, defend and hold harmless the other party, its officers, directors and employees from any and all third party claims, liability, damages, expenses and/or costs (including, but not limited to, attorneys fees) arising from the other party’s breach of any warranty, representation or covenant in this Agreement. All such amounts will be reimbursed to the indemnified party as incurred, within thirty (30) days of submission of reasonable supporting documentation or invoices to the indemnifying party. Each party’s obligation to indemnify is conditioned upon the other party providing prompt notification of any and all such claims, unless the failure to notify does not materially and adversely affect the defense. The indemnified party will reasonably cooperate with the indemnifying party in the defense and/or settlement thereof. The indemnified party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim at the indemnified party’s sole cost and expense.10.3 Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.LIMITATION OF LIABILITY.11.1 Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.Total Liability. OTHER THAN AS A RESULT OF BREACH OF SECTIONS 2 OR 9 OR PURSUANT TO THE INDEMNIFICATION PROVISIONS HEREOF, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR AN AMOUNT IN EXCESS OF THE TOTAL AMOUNT PAID TO PUBLISHER HEREUNDER.GENERAL.12.1 Assignment/Change of Control. Neither party may assign this Agreement, in whole or in part, without the other party's written consent (which will not be unreasonably withheld). In the event of a change of control, merger, reorganization or sale of all, or substantially all, of one party's assets to a third party, the other party may terminate the agreement upon ten (10) days’ prior written notice at any time after the closing of such transaction. For the purposes hereof, a “change of control” shall mean a transaction in which the shareholders of a party prior to the closing do not retain majority ownership of the party after the closing of such transaction.12.2 Governing Law/Venue. This Agreement shall be interpreted according to the laws of the State of Israel without regard to or application of conflict-of-law rules or principles. Any dispute relating to or arising from this Agreement shall be settled in the sole jurisdiction of the applicable courts of Tel Aviv, Israel. 12.3 Notices. Any notice or other communication to be given hereunder will be in writing and will be (as elected by the Party giving such notice): (i) personally delivered; (ii) transmitted by postage prepaid registered or certified mail, return receipt requested; (iii) deposited prepaid with a nationally recognized overnight courier service; or (iv) sent by facsimile. Unless otherwise provided herein, all notices will be deemed to have been duly given on: (a) the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally or by courier; (b) three (3) business days after the date of posting if transmitted by mail; or (c) if transmitted by facsimile, the date a confirmation of transmission is received. Either Party may change its address for purposes hereof on not less than three (3) business days prior notice to the other Party. Notices hereunder will be directed to, unless otherwise instructed by the receiving Party: If to Publisher: If to Oridian:
12.4 Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages and governmental restrictions.12.5 Severability. In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.12.6 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and terminating any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.12.7 Independent Contractors. The parties are independent contractors and not co-venturers. Neither party shall be deemed to be an employee, agent, or legal representative of the other party hereto for any purpose and neither party hereto shall have any right, power or authority to create any obligation or responsibility on behalf of the other party hereto nor shall this be deemed an exclusive or fiduciary relationship. This Agreement will not be construed to create or imply any partnership, agency or joint venture.12.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original or faxed copy and all of which together shall constitute one instrument.Oridian: []
Part II
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