Version 1.0 (September 10, 2009)

Web Publisher Agreement

Please review the Version number and date of this Web Publisher Agreement (“Publisher Agreement”), please note that, effective as of the date of the most recent Version of this Publisher Agreement (see top right corner), the most recent Publisher Agreement will replace all prior versions.  Company reserves the right to change the terms of this Publisher Agreement at any time without notice to Web Publisher and, by continuing to participate hereunder, Web Publisher agrees to be bound by such revised terms.

1. Definitions.

“Company Search Function” means (a) the Company Hope Page should a User request such search feature; (b) related explanatory written materials and files ("Documentation"); (c) any software or code delivered by Company to a User; and (d) any upgrades, modified versions, updates, additions, and copies of any of the foregoing made available pursuant to this Publisher Agreement during the Term. The Company Search Function facilitates end user targeting/profiling and data collection services.

"End User License Agreement" or “EULA” refers shall mean an agreement between Company or one of its suppliers and a User under which the User is required to agree to certain terms and conditions as a prerequisite to using a Product.

"Product(s)" means (a) any product available using the www.loudmo.com website, and (b) any other product(s) or service(s) that Company authorizes Web Publisher to distribute pursuant to this Publisher Agreement.

"Proprietary Right" means any patent, copyright, trademark, trade secret or other intellectual or proprietary right, under the laws of the United States or any other country.

"Referred Web Publisher" is an individual or group that signs up for Company’s program after being referred by a Web Publisher through its referral link, with the Web Publisher account ID being recorded upon sign up.

"Term" means the period of time in this Publisher Agreement.

"Tools" means any content made available by Company to Web Publisher from time to time for display or use on Web Publisher Site(s), including, without limitation, code, interface materials, paper or electronic documentation, trademarks, service marks, and trade names.

"User" means a new unique end-user who, during the Term, installs any Products (either alone or in connection with installation of any other Product) on such user’s computer through the install process of Web Publisher, who has not previously installed any Products (either alone or in connection with installation of any other Product), and whose installation is reported by Company’s tracking system as a valid installation.

"User Information" means the specific geographic, demographic, behavioral and other unique (but non-personally identifiable) information about Users collected using any Product.

"Web Publisher" is an individual or entity that signs up by completing the on-line registration form.

"Web Publisher Site(s)" means the website(s) owned or controlled by Web Publisher as provided by Web Publisher in the on-line registration form.

2. License and Distribution. During the term of this Publisher Agreement after Web Publisher completes the on-line registration form, Design and Marketing, S.A. ("Company"), hereby grants to Web Publisher the limited, non-exclusive license to use the www.loudmo.com web site (the “Site”) and the Products available on the Site.  Company will provide Web Publisher with code or web pages for use on Web Publisher Site(s) to enable Users to access, download and install Products from Company. Web Publisher shall not modify Programs. Web Publisher may not reference Company, its directors or its parent or subsidiary companies without first receiving written consent from Company. Web Publisher may not issue any press release or other public statements regarding this Publisher Agreement without Company’s prior written consent.

2.1 End User License Agreement(s). All Products are subject to one or more EULA.  Web Publisher shall not take any action to interfere with, and shall provide reasonable cooperation with respect to implementing, the process pursuant to which Users are presented with and given an opportunity to agree to the applicable EULAs.  Web Publisher will not make or authorize any representation, warranty, term, condition or other provision relating to a Product that has not been approved or otherwise authorized by Company in writing.

2.2 Noncompetition. Web Publisher shall not, directly or indirectly, promote, advertise market, sell, bundle, or distribute in any form any software or product that competes with the Site or Products during the Term and for a period of 60 days after this Publisher Agreement is terminated.

3. Web Publisher Conduct.  Web Publisher agrees that it will take all steps to act within the federal, state and local laws of the United States, Costa Rica and any other country in which they do business.  Web Publisher acknowledges and agrees that any failure to abide by such laws will allow Company to terminate this Publisher Agreement immediately and to retain all revenue currently held for Web Publisher’s benefit to offset the potential harm caused by Web Publisher.  In addition, Web Publisher agrees to take commercially reasonable efforts to: (1) not market the Products to individuals under the age of 18; (2) not to market the Products outside of the United States, Canada, the United Kingdom or other such countries that the Company has provided specific authorization in writing (Company maintains the right to invalidate any payments to Web Publisher for Users that are outside these countries); (3)  market the Products in English; (4) to market the Products without the use of SPAM emails; (5) not bundle the Company’s Products without properly alerting Users; and (6) not download or install any Company Product in an unethical manner.

4. Compensation and Payment Terms.  Company will pay Web Publisher the fees set forth in the Additional Terms.  Company will be entitled to withhold, deduct and set off from any payments to be made to Web Publisher hereunder any sums owed by Web Publisher to Company in connection with this Publisher Agreement (including any breach hereof by Web Publisher) or otherwise.  Web Publisher is responsible for keeping its payment information up to date.  Payments will be sent where indicated by Web Publisher at the time the pay period ends.  No payment information change will be accepted between the end of the pay period and the time the payment is sent.  Future payments will take account of any changes made during that period.  Web Publisher is required to have a verified PayPal account unless payment is to be made via check or wire transfer and the Web Publisher is otherwise in good standing and is resident in United States, Canada, France, Italy, Germany, Spain, Israel, or Australia (final determination of good standing at Company’s sole discretion).  For the additional protection of the Web Publisher, or any other reason, Company may at any time request additional and further proof of identification from Web Publisher, and payment may be withheld until identification can be verified (or re-verified).

5. Ownership. Subject to any license granted herein, Company owns and retains all rights, including Proprietary Rights, in and to the Products.  All rights not expressly licensed hereunder are expressly reserved by Company. Web Publisher shall use the Products only as provided herein, and shall not alter the Products in any way, nor shall it act or permit action that would in any way impair the rights of the Company in the Products.  Web Publisher acknowledges that its use of the Products shall not create any right, title or interest in or to such Products and all goodwill or reputation generated by Web Publisher’s use shall inure to the benefit of Company.  Company shall have the right to monitor the quality of the Web Publisher’s use of the Products.  During the term of this Publisher Agreement, Web Publisher shall not adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the Company trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction.  Web Publisher shall notify Company promptly in writing of any known infringement of the Company Proprietary Rights or other rights in the Products.  As between Company and Web Publisher, Company is and shall be the sole and exclusive owner of User Information collected through the Products.

6. Term and Termination.  The term of this Publisher Agreement shall commence on the date Company receives Web Publisher's on‑line registration and shall continue in force thereafter, unless earlier terminated as provided herein.  If Web Publisher breaches this Publisher Agreement, or if Web Publisher engages in any action that, in Company's sole discretion, reflects poorly on Company or its trademarks, service marks, trade name or reputation, Company may terminate the Publisher Agreement immediately upon notice to Web Publisher.  Either party may terminate this Publisher Agreement on thirty (30) days written notice to the other party for any reason. Upon the termination of this Publisher Agreement for any reason, all license rights granted herein shall terminate immediately, and Web Publisher shall immediately cease use of the Tools and Products.  Company reserves the right to terminate any account inactive for more than 30 calendar days.

7. Confidentiality. During the Term of this Publisher Agreement and thereafter, Web Publisher agrees that it will not disclose or use the "Confidential Information" (defined below) of Company or will only use it as contemplated by this Publisher Agreement. Confidential Information is information that has or could have commercial value or other utility in the business or prospective business of Company, or information that Web Publisher ought in good faith from the circumstances of its disclosure consider to be confidential, including all Proprietary Rights of Company and all other business, technical and financial information that is obtained from Company pursuant to this Agreement. Confidential information shall not include any information that Web Publisher can verify with substantial proof that: (i) is generally available to or known to the public through no wrongful act of Web Publisher; (ii) was independently developed by Web Publisher without use of Confidential Information; or (iii) was disclosed to Web Publisher by a third party under no obligation of confidentiality to Company.

8. Warranties; Disclaimer.

8.1 Web Publisher. Web Publisher represents and warrants that (a) Web Publisher is 18 years or older and has full power and authority to enter into this Agreement; (b) the content on Web Publisher's Site(s), and/or the technology and/or content (including, without limitation all images, photographs, closed captioning, data and music) used by Web Publisher in connection with this Agreement is and will continue during the term hereof to be owned or legally licensed for use as contemplated by this Agreement by Web Publisher; (c) Web Publisher Site(s) do not violate applicable law or regulations, including without limitation 18 USC 2257 US Federal Law, and do not infringe or violate any copyright, patent, trademark or other similar right, or otherwise violate or breach any duty toward, or rights of, any person or entity, including without limitation rights of publicity or property, or rights or rights or duties under consumer protection, product liability, tort or contract theories and (d) the content on Web Publisher’s Site(s) does not violate the Canadian Criminal Code provisions in relation to child pornography or obscenity.

8.2 Company. WEB PUBLISHER ACKNOWLEDGES THAT THE PRODUCTS ARE PROVIDED "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS." NEITHER COMPANY NOR ANY OF ITS SUPPLIERS WILL HAVE ANY LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN ANY PRODUCT, ANY INABILITY TO USE A TOOL OR PRODUCT OR ANY LOSS OF DATA. COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE TOOLS OR PRODUCTS, THEIR PERFORMANCE OR SUITABILITY FOR INTENDED USE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

9. Exclusion of Damages; Limitation of Liability. NEITHER COMPANY NOR ANY OF ITS SUPPLIERS WILL HAVE ANY, AND WEB PUBLISHER EXPLICITLY RELEASES COMPANY AND ALL OF ITS SUPPLIERS FROM, LIABILITY RELATED TO OR ARISING UNDER THIS PUBLISHER AGREEMENT (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF DATA OR PROFITS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO WEB PUBLISHER FOR THE 6 MONTHS PRECEDING ANY CLAIM.

10 Waiver and Severability. Waiver by either party of a breach or right under this Publisher Agreement will not constitute a waiver of any other breach or right. If any provision of this Publisher Agreement is held invalid or unenforceable, the remaining provisions will continue in full force and effect.

11 Assignment. Neither party shall assign this Publisher Agreement or any of its rights under this Publisher Agreement without the prior written consent of the other party, which will not be unreasonably withheld.  Notwithstanding anything in this agreement, Company may assign this contract to a wholly owned subsidiary without notice or consent.

12 Legal Fees. In the event of a dispute, the substantially prevailing party is entitled to recover reasonable legal fees and court costs.

13 Disclosure. Company may disclose information related to Web Publisher as it believes is reasonably necessary to comply with law enforcement, regulatory or other governmental authority, to prevent harm to Web Publisher or others, or in the event of a breach of this Agreement. In the event of a breach of this Publisher Agreement, including the Company reserves the right to disclose Web Publisher information to law enforcement authorities and other regulatory bodies.

14 Notices. Notices, demands and other communications shall be in writing and sent to, as applicable, the address of Web Publisher provided by Web Publisher to Company during the on-line registration process and the address of Company as set forth on Company’s website, and shall be deemed to have been properly given:

(a) If delivered by mail, overnight courier or express, when received by addressee; or

(b) If sent by confirmed fax, one business day following receipt by addressee; or

(c) If sent by email from Company to Web Publisher, using the email address provided by Web Publisher, on the same day as the email is sent.

15 Export. Web Publisher shall not, directly or indirectly, export or re-export any Product from the United States without compliance with all applicable laws and regulations of the United States Office of Export Licensing or its successor.

16 Indemnification. Web Publisher shall defend, indemnify and hold harmless Company, its affiliates and their respective officers, directors, employees, agents, successors, licensees, attorneys, suppliers and assigns, and each of them, from and against any and all losses, liabilities, damages, penalties and claims and all related costs and expenses (including reasonable attorneys’ fees) related to claims by third parties arising from (a) Web Publisher’s negligence or willful misconduct; or (b) Web Publisher’s own technology, business and Site(s).

17 Governing Law. This Publisher Agreement shall be construed, controlled and governed by the laws of Country of Costa Rica, without regard to conflicts of law principles or provisions. Web Publisher hereby irrevocably consents to submit to the exclusive jurisdiction and venue of the federal courts located in the Country of Costa Rica.

18 Relationship between Parties.  There is no relationship of agency, partnership, joint venture or employment between the parties. Neither party has the authority to bind the other nor to incur any obligation on the other’s behalf except as described in this Publisher Agreement.

19 Entire Agreement; Amendment. This Publisher Agreement is the complete agreement between the parties, and supersedes all previous agreements, proposals and communications, written and oral, with respect to this subject matter. No amendment, modification or waiver of any of the provisions of this Agreement will be valid unless set forth in a writing signed by the parties to be bound thereby. The foregoing notwithstanding, if a revised, updated version of this Agreement is posted online by Company, and Web Publisher continues to participate in Company’s Web Publisher program, then Web Publisher is thereby agreeing to be bound by such revised terms.
 
EXHIBIT A
ADDITIONAL TERMS
 
1. Licensed Use and Distribution. Web Publisher shall provide the possibility to install the Products from Web Publisher Site(s) to end-users of Web Publisher's Site(s) only and not to subdistributors or any other third parties.

2. Compensation.

2.1 Payout Rates. Company will pay Web Publisher a commission based on User installations performed through the Web Publisher ID, according to the rate sheet posted on Company’s website at the time of installation by User.  Company pays on valid installations coming from the countries listed in Company’s rate sheet.  However, Company reserves the right not to pay for unprofitable installations.  Company will issue payment once Web Publisher's account balance has reached fifty United States dollars (US$50.00). The minimum amount for sending a wire transfer is one thousand United States dollars (US$1000.00). If the amount is less, it is carried over from month to month until Web Publisher has accrued the minimum payout.

2.2 Payment terms. Payments are sent NET 30 (thirty days) after the end of the pay period, as determined during the on‑line signup process. Payment is equal to the total showed in Web Publisher's account, less any taxes or fees Company may be required to withhold, and less any amount Company determines, in its sole discretion, was not validly earned, including use of Web Publisher's Site.

2.3 Bonuses. Company agrees to pay a referral bonus to Web Publisher for all installations sent by Referred Web Publisher. The referral bonus is equal to a percentage of the Referred Web Publisher’s net revenue, based on the CPA pricing as listed in Company’s posted rate sheet. Such referral bonus shall be paid at the percentage as indicated in the referral bonus section of the Company’s website, as posted at the time of installation by User.