Publisher Center General Terms and Conditions

YOU SHOULD REVIEW THESE MIVA AK, INC. (“MIVA”) PUBLISHER Center GENERAL TERMS & CONDITIONS (“TERMS and conditions”), THE MIVA PUBLISHER CENTER RULES AND POLICIES FOUND AT http://www.miva.com/legal_center/publisher-center-rules-and-policies (or successor domain thereto) (“RULES AND POLICIES”) (THESE TERMS AND CONDITIONS AND THE RULES AND POLICIES MAY BE COLLECTIVELY REFERRED TO HEREIN AS the “AGREEMENT”), AND ANY REGISTRATION /INSTRUCTION SCREENS THAT YOU COMPLETE CAREFULLY PRIOR TO REGISTERING FOR THE MIVA PUBLISHER CENTER, MIVA’S SUITE OF PUBLISHER PRODUCTS (“MIVA PUBLISHER CENTER”). THIS AGREEMENT IS LEGALLY BINDING BETWEEN YOU AND MIVA. BY ACCEPTING THIS AGREEMENT AND PARTICIPATING IN THE MIVA PUBLISHER CENTER, YOU AGREE TO BE BOUND BY ALL OF THE PROVISIONS CONTAINED HEREIN. IF THis AGREEMENT IS UNACCEPTABLE TO YOU, DO NOT REGISTER FOR OR PARTICIPATE IN THE MIVA PUBLISHER CENTER.

1. INTRODUCTION.

References in this Agreement to “you” or “your” means the entity or sole proprietor identified in the MIVA Publisher Center registration screen(s). Your participation in the MIVA Publisher Center is subject to MIVA’s prior and continued approval, in its sole discretion, and your continued compliance with this Agreement. You represent and warrant that you are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts. Capitalized terms used but not defined at first use herein are defined in the last clause of these Terms and Conditions. You agree to register for the MIVA Publisher Center in the manner provided by MIVA and implement the services offered and provided to you by MIVA in the MIVA Publisher Center (“Services”) on the Sites according to any Specified Implementation, the specifications and the format allowed in the MIVA Publisher Center, and any other specifications and directions provided by MIVA from time to time. MIVA may change the criteria for registration in the MIVA Publisher Center at any time, in its sole discretion.

2. IMPLEMENTATION OF THE SERVICES.

(a) Subject to the terms of this Agreement, MIVA hereby grants to you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable, royalty-free, license to publicly display (unless otherwise restricted by MIVA) the Ad Results on Results Pages during the Term (defined below), solely for the purposes set out in this Agreement. You shall ensure that the Ad Results shall not appear other than on Results Pages of the Sites, unless you have received MIVA’s prior written approval to do so.

(b) Each Site and Specified Implementation is subject to review and approval by MIVA, in its sole discretion, at any time. Even if you register in the MIVA Publisher Center, MIVA may refuse to offer the Services to you (or anyone) and/or refuse to approve any one or more Site without the need to give any reason.

(c) Subject to your compliance with the terms of this Agreement, in response to a Search, MIVA shall use commercially reasonable efforts to deliver Ad Results, if available, to the Sites.

(d) You shall be responsible for: (i) the creation, development, operation (which shall include the technical operation) and maintenance of the Sites and all equipment related to the Sites; (ii) hosting of the Sites; (iii) all materials and content on the Sites; and (iv) establishing, implementing and maintaining Links, scripts and HTML code supplied by MIVA for use on the Sites as part of a Specified Implementation.

(e) You shall not be excused from your performance of any obligation or condition under this Agreement because the same was caused by or connected to or arises out of the behavior or act or omission of any Network Affiliate.
(f) You shall parse the Ad Results in such a manner that you are capable of presenting the Ad Results on the Results Pages of the Sites in the order, manner, and language provided by MIVA. Subject to foregoing sentence, you shall not modify any data in the Ad Results. Any codes relating to a Specified Implementation provided by MIVA to you must be pasted directly into the Sites without modification, except as may be agreed to in writing by MIVA. You may modify formatting and style parameters only if allowed by MIVA. In response to a User’s Search on a Site, you shall display the Ad Results on the Site from which such Search originated according to the Specified Implementation.

(g) MIVA may at any time itself suspend or remove any or all of the Sites on which you display ads from the Ad Results (so that such cease to be part of the Sites).

(h) MIVA may crawl the websites that are part of the Sites and/or the Network Websites, at a frequency as determined by MIVA in its sole discretion, for the purposes of returning Ad Results and/or determining traffic quality.
(i) Ad Results in respect of the Pay-Per-Click Service shall list the Advertiser URL and may also list various elements such as the Advertiser Title, a Description and/or the Advertiser Logo.

(j) Ad Results shall not be used by you other than for the purposes set forth in this Agreement.

(k) In the case of Ad Results, you shall be exclusively responsible for establishing and maintaining Links within the Ad Results on the Results Pages, which would give access to the relevant advertiser URL.

3. IMPLEMENTATION TYPES.

(a) You shall implement the Specified Implementations approved and provided to you by MIVA such that MIVA can return Ad Results and you shall display the Ad Results on the Results Pages.

(i) Ad Units and Ad Zones. Consists of segmenting different sections of a Site into different zones (“Ad Zones”) to receive and display an appropriate ad. A single or multiple Content Query(ies) will be automatically initiated from the Site by virtue of a display to the User of a particular area of a Site (based on relevant content related to the Ad Zone of a Site or to any text that a User may have typed into the browser’s URL bar or a search box for the purposes of generating a Content Query) (“Ad Units and Ad Zones Implementation”).

(ii) Search Box and Search Results. A Search Box Query is initiated when a User enters text in a search box contained within a Site (”Search Implementation”).

(iii) Domain. A Content Query is automatically initiated when a User enters a URL in the address bar of a browser that points to a Site (“Domain Implementation”).

(iv) XML. If you are approved for and provided with Ad Results in an XML format by MIVA (“XML Implementation”), you shall implement the XML code provided by MIVA such that Ad Results appear on the Sites in accordance with this Agreement and with the specifications and requirements set forth in the separately-provided MIVA XML publisher documentation.

(v) Directory. If you are approved for and offered a clickable directory implementation by MIVA, you will implement a clickable directory containing Links of general interest on the Sites (“Directory Implementation”). In response to a User clicking on such Link, a Search will be initiated from the Site.
Direct Navigation. A Search is automatically initiated in response to a User’s interactions with a browser, website, or a toolbar, such as through entering text, clicking on a button, ad listing or category listing, where the User is re-directed directly to an advertiser’s website (“Direct Navigation Implementation”).

4. PAYMENT.

(a) Subject to the terms of this Clause 4, and to your compliance with Clause 7 of these Terms and Conditions, an amount determined by MIVA, in its sole discretion (“Payment”), shall be payable by MIVA to you relating to Click Throughs in connection with a Specified Implementation, as applicable, on the Site(s) in respect of a Payment Period. Payments will be determined by MIVA based on a number of factors including, but not limited to, the quantity, quality, and validity of Click Throughs. Payments will be payable approximately thirty (30) days after the end of each calendar month in which such Click Throughs occurred from the Site(s).

(b) Choice of payment method shall be provided by MIVA at MIVA’s sole discretion.

(c) Payment shall be made in United States dollars. In the event a non-U.S. currency or multiple currencies is/are involved in the calculation of a Payment, MIVA may, in its sole discretion, convert such Payment to a single appropriate currency using the foreign exchange currency rates recognized by MIVA’s bank at the time the Payment is calculated by MIVA. You are responsible for the payment of all applicable taxes and all other government charges of any kind relating to your participation in the MIVA Publisher Center.

(d) U.S. taxpayers must provide MIVA with a valid U.S. tax identification number and a fully completed, accurate Form W-9 and any other information required by applicable taxing authorities. If you are a non-U.S. taxpayer, you must provide MIVA with a fully completed, accurate Form W-8 and any other documentation required by applicable taxing authorities. MIVA shall have no obligation to make any Payment to you until it has received all relevant and accurate documentation required from you hereunder. MIVA reserves the right to report any submissions of fraudulent or misleading information to any governmental, regulatory, and law enforcement authority as MIVA deems appropriate.

(e) MIVA shall have no obligation to pay you any payments earned through invalid activity (which shall include but not be limited to: (i) click throughs on Ad Results which, at the sole discretion of MIVA, are deemed by MIVA to be invalid, including where such click throughs are deemed invalid by MIVA’s security and protection protocols; (ii) revenue earned through the improper use of MIVA’s Marks; (iii) anything connected or relating to MIVA’s determination that a Search is in contravention of Clause 2 of these Terms and Conditions; and/or (iv) click throughs executed through Invalid Technical Measures). Furthermore, MIVA may withhold any and all amounts or Payments if you have breached any provision of Clause 7 of these Terms and Conditions.

(f) MIVA shall have no obligation to make any Payment to the extent that any elements of any Payment relates to: (i) payments in respect of which MIVA has not itself received payments from relevant third parties; (ii) payments which represent net adjustments downwards for whatever reason to payments made by Advertisers to MIVA (or withheld from payments due from Advertisers to MIVA) including, but not limited to, for poor traffic quality and/or conversions, goodwill credits, and promotional credits; (iii) payments with respect to Click Throughs from any internal MIVA ads in the Ad Results provided by MIVA to you; (iv) payments earned through or relating to Click Throughs benefiting charitable organizations; or (v) payments earned through or relating to MIVA advertisements for its own products or services.

(g) MIVA shall have no obligation to make any Payment or any other payments to you for a Specified Implementation not approved by MIVA or, if after termination of this Agreement and without limitation to Clause 4(i) below, it is unable to make Payment to you after exercising commercially reasonable efforts to do so (for example, if MIVA is unable to make Payment due to your failure to maintain current contact details in the MIVA Publisher Center).

(h) MIVA may withhold a relevant portion of any Payment from you to offset any portion of any Payment previously received by you in respect of any matter under Clauses 4(e) and/or 4(f) above.

Notwithstanding anything contained in this Clause 4 to the contrary, in the event that Payment owed in a Payment Period is less than one hundred dollars ($100), MIVA may withhold Payment until the next Payment Period in which the total amount due is at least one hundred dollars ($100), or until this Agreement is terminated, whichever is sooner. As a result of administrative and other costs that MIVA incurs in providing the Services, in the event that the total Payment amount owed to you upon termination of this Agreement is less than fifty dollars ($50), notwithstanding anything else set forth in this Agreement to the contrary, you understand and agree that MIVA is not obligated to send you such Payment and that MIVA may retain such amount as if the same had never been the subject of any obligation to be paid by MIVA.

You irrevocably agree that if, after the end of the Term (defined below), MIVA is still making Ad Results available other than pursuant to a new written agreement between the parties in respect of the same, you shall have no right to receive any Payment in respect of the same and shall promptly reimburse to MIVA any monies in respect of such a Payment which may have been made.

5. TERM AND TERMINATION.

(a) This Agreement shall commence on the date you accept this Agreement, shall continue for one year and shall be automatically renewed for each subsequent one-year period thereafter, unless otherwise terminated in accordance with this Agreement (“Term”).

(b) MIVA may at any time, in its sole discretion, with or without notice to you and without liability whatsoever, (i) terminate this Agreement for any or no reason; or (ii) suspend, modify, or discontinue, temporarily or permanently, all or any part of the Services, a Specified Implementation, and/or the MIVA Publisher Center.

(c) You may at any time terminate this Agreement for any or no reason by (i) removing the MIVA JavaScript or similar programming from the Sites; and (ii) providing to MIVA written notice of termination to publishers.us@miva.com. This Agreement will be deemed terminated as soon as reasonably practicable after MIVA’s receipt of your notice of termination.

(d) You shall not have any remedy against MIVA based on or arising out of MIVA’s termination of this Agreement, and termination of this Agreement by MIVA shall be without prejudice to the rights of MIVA accrued at the date of such termination.

6. INTELLECTUAL PROPERTY RIGHTS AND MARKS.

(a) MIVA hereby grants you a limited, non-exclusive, non-transferable, non-sub-licensable, revocable, royalty-free license for the Term to use MIVA’s Marks on the Sites, as may be provided to you as part of the Services, and in accordance with and as contemplated by the terms of this Agreement and any usage guidelines as may be posted by MIVA or otherwise provided to you, for the sole purpose of promoting this Agreement. You shall not use MIVA’s Marks other than as set out in this Clause 6(a) without MIVA’s prior written consent. You shall not modify the MIVA Marks.

(b) You hereby grant MIVA a non-exclusive, non-transferable, non-sub-licensable, revocable, royalty-free worldwide license for the Term to use your Marks on MIVA’s websites and in MIVA’s brochures and media packs, at trade shows, in corporate literature, in press releases, and in public relations materials.

(c) Except as expressly set forth herein, nothing in this Agreement will vest in you any right, title, or interest in the Intellectual Property. MIVA reserves all rights in its Intellectual Property not specifically granted herein.

7. REPRESENTATIONS AND WARRANTIES.

You represent and warrant to MIVA that: (a) this Agreement is executed by a duly authorized representative of you; (b) You have full capacity and authority and all necessary licenses, permits and consents (including, where the circumstances and procedures so require, the consent of a parent company) to enter into and to perform this Agreement and shall maintain the same during the term of the Agreement; (c) You are not insolvent or unable to pay your debts, no order has been made or petition presented or resolution passed for your winding up or for an administration order and no receiver, administrative receiver or administrator or manager has been appointed by any person of your business or assets or any part thereof nor has any equivalent event taken place; (d) the Sites: (i) are managed by you (and if you are a Network Operator, that a Network Website is managed by a Network Affiliate with a contract with you), (ii) comply with and do not violate any applicable law or regulation or codes of practice (including, but not limited to, data protection legislation), (iii) do not infringe in any manner any intellectual property of any third party whether registered or not or registrable or not (including, but not limited to, copyright, database rights, patent, trade mark, trade secret or other intellectual property right), (iv) do not breach any duty towards or rights of any person and have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person, (v) are not false or misleading, and (vi) do not libel, defame, cause injury to, invade the privacy of or otherwise infringe or violate the rights of any person or third party; and (e) You shall comply in all respects with this Agreement including, for the avoidance of doubt, the Rules and Policies found at http:www//www.miva.com/legal/publisher_rules_policy.html (or successor domain thereto).

8. DISCLAIMER OF WARRANTIES.

MIVA EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Furthermore, MIVA makes no representation or warranty to You that the performance of its obligations under this Agreement will produce any level OF, PAYMENT, profits OR business for You OR ANY SPECIFIED AMOUNT OR QUALITY OF TRAFFIC OR CLICK-THROUGHS.

9. LIMITATION OF LIABILITY.

MIVA DOES NOT GUARANTEE THAT THE SPECIFIED IMPLEMENTATIONS, AD RESULTS, CLICK-THROUGHS, OR ANY OTHER SERVICE PROVIDED BY MIVA UNDER THIS AGREEMENT OR THE MIVA PUBLISHER CENTER WILL MEET YOUR REQUIREMENTS OR THAT THE SPECIFIED IMPLEMENTATIONS, AD RESULTS, CLICK-THROUGHS, OR ANY OTHER SERVICE PROVIDED BY MIVA UNDER THIS AGREEMENT OR THE MIVA PUBLISHER CENTER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. MIVA shall not be liable to You for the consequences of any failure by You to install and implement any part of the Services on THE sites or any failure by You to properly maintain sites. Furthermore, MIVA shall not be liable to You for the consequences of any failure by MIVA to implement the Services. IN NO EVENT WILL MIVA BE LIABLE FOR ANY CLAIM FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), OR FOR LOSS OF DATA, REVENUE, CUSTOMER GOODWILL, OR USE, OR ANY CLAIM IN TORT, WHETHER OR NOT ARISING IN WHOLE OR PART OUT OF MIVA’S ACT, OMISSION, FAULT, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR MIVA HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL MIVA’S AGGREGATE LIABILITY TO YOU FOR ANY REASON EXCEED IN AGGREGATE THE PAYMENTS PAID BY MIVA TO YOU IN THE THREE MONTHS IMMEDIATELY PRECEDING ANY CAUSE OF ACTION ARISING AS A RESULT OF THIS AGREEMENT.

10. INDEMNITY.

You shall indemnify, defend and hold harmless MIVA, its parents, subsidiaries, affiliates, directors, officers, employees and agents, against all liabilities, claims and expenses that may arise from (a) a breach of this Agreement by you, (b) Your use of the MIVA Publisher Center not in accordance with this Agreement, and/or (c) the Sites.

11. ASSIGNMENT.

You shall not give, bargain, sell, assign, sub-let or otherwise dispose of this Agreement or any part thereof or the benefit or advantage of the Agreement or any part thereof without the prior consent in writing of MIVA. MIVA may assign this Agreement or delegate its responsibilities at any time with or without notice to you and without your consent.

12. CONFIDENTIALITY.

(a) In this Clause 12, “Confidential Information” means in relation to MIVA, information (whether in oral, written or electronic form) belonging or relating to MIVA, its business affairs or activities which is not in the public domain and which: (i) MIVA has marked as confidential or proprietary, (ii) MIVA, orally or in writing has advised you is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position to the recipient of such information under this Agreement, and under like circumstances, would treat as confidential and, for the avoidance of doubt, “Confidential Information” shall include the terms of this Agreement, information about the Services and the MIVA Publisher Center and technical formulae and processes, product designs, audit results, sales, cost and other unpublished financial information, product and business plans, projections, and marketing and promotional data.

(b) You shall maintain the confidentiality of MIVA's Confidential Information and shall not, without the prior written consent of MIVA, use, disclose, copy or modify MIVA's Confidential Information (or permit others to do so) other than as necessary for the performance of Your rights and obligations under this Agreement.

(c) You undertake to disclose MIVA's Confidential Information only to those of your officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement, and to procure that such persons are made aware of and agree to observe the obligations in this Clause 12.

(d) You shall give notice to MIVA of any unauthorized misuse, disclosure, theft or other loss of MIVA's Confidential Information immediately upon becoming aware of the same.

(e) The provisions of this Clause 12 shall not apply to information which: (i) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors; (ii) is lawfully received from a third party free of any obligation of confidence at the time of its disclosure; or (iii) is independently developed by you, your officers, employees, agents or contractors, as evidenced by written documents or records.

(f) In the event that you are required by law, stock exchange, regulatory body, court or governmental order to disclose Confidential Information, then you shall, prior to any disclosure, notify MIVA and at MIVA’s request and cost, assist MIVA in opposing any such disclosure.

(g) You shall not make any public statement, issue any press release or make or release any other type of announcement or statement relating to the existence of this Agreement without the prior written approval of MIVA.

(h) You shall administer and protect MIVA’s Confidential Information with at least the same degree of care used to administer and protect your own Confidential Information, and in any event, with no less than reasonable care.

13. FORCE MAJEURE.

MIVA shall not be liable for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other act of God, act of terrorism, labor condition, or power failure.

14. NOTICES.

Except as expressly stated herein to the contrary, any notice, consent or other communication required or permitted hereunder will be in writing and shall be given or shall be served by email or by prepaid registered letter or overnight delivery sent through the post to the intended recipient’s address given in this Agreement or such other address as may from time to time be notified for this purpose. Any notice served by email shall be deemed to have been served when sent and any notice served by prepaid registered letter (or overnight courier) shall be deemed to have been served two Business Days after posting. Such notices, consents or communications shall be sent to: (a) if to you, to the notification email and/or to the address provided in the MIVA Publisher Center, and (b) if to MIVA, to publishers.us@miva.com with a written copy to MIVA AK, Inc., 5220 Summerlin Commons Blvd., Suite 400, Fort Myers, FL 33907, U.S.A.

15. WAIVER.

The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.

16. SEVERABILITY.

If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms; provided, however, that a court having jurisdiction may revise such provision to the extent necessary to make such provision valid and enforceable.

17. ENTIRE AGREEMENT.

These Terms and Conditions, the Rules and Policies, and anything expressly incorporated herein, contain all the terms agreed between the parties regarding the subject matter of this Agreement and supersede and exclude any prior agreement, understanding or arrangement between the parties, whether oral or in writing, with respect to the subject matter herein.

18. SURVIVAL.

The provisions of Clauses 5(d), 6 (but only for a reasonable time after termination to permit relevant Marks to be removed), and 8 to 24 (inclusive) of these Terms and Conditions, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of these Terms and Conditions.

19. RELATIONSHIP.

MIVA and you are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, representative status or employment relationship between the parties. Neither party has authority to and shall not make any representations or incur any liability or cost or enter into any contracts or other arrangements involving the other party in financial or other commitments without that other party’s express prior approval in writing; nor shall either party hold itself out as having authority to do the same. You shall not make any statement or representation, whether on the Sites or otherwise, that the parties are in a contractual relationship, other than for the purpose of this Agreement.

20. EQUITABLE RELIEF.

You acknowledge and agree that a breach of the terms of this Agreement may result in irreparable and continuing damage to MIVA for which there may be no adequate remedy at law, and that in the event of such breach, MIVA shall be entitled to apply for injunctive relief and/or a decree for specific performance and such other and further relief as may be appropriate.

21. VARIATION.

MIVA may change the terms of this Agreement from time to time. Upon any such change, MIVA will post the amended terms in the MIVA Publisher Center. The amended terms shall automatically become effective immediately after they are initially posted in the MIVA Publisher Center and any use of the MIVA Publisher Center or the Services after such date shall be subject to the amended terms. This Agreement may not otherwise be amended, except in writing signed by both parties. Your continued use of the MIVA Publisher or the Services after the posting of the amended terms in the MIVA Publisher Center constitutes your acknowledgement of the terms and its modifications and your agreement to abide by and be bound by this Agreement, as amended. Please therefore check the MIVA Publisher Center regularly. Should you object to any provision of this Agreement or any subsequent modifications thereto, your only recourse is to terminate use of the MIVA Publisher Center or the Services and this Agreement and immediately notify MIVA of that termination.

22. GOVERNING LAW; JURISDICTION.

This Agreement shall be governed by the laws of the state of New York, U.S.A., without reference to its choice of law rules. The parties agree that the forum for dispute resolution under this Agreement shall be located exclusively in the state or federal courts in New York County, New York, U.S.A. The parties specifically exclude the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act from application to this Agreement.

23. GENERAL PROVISIONS.

(a) Clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.

(b) References to each party herein include references to its successors in title, permitted assigns and novatees.

(c) No person (including, for the avoidance of doubt, any third party to whom any or all rights and/or obligations under this Agreement are assigned, transferred or novated in accordance with the terms hereof or otherwise by written agreement of the parties) who is not a party to this Agreement shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to this Agreement its assent to any such term.

(d) If MIVA believes that any of the Sites or that your use of the Services is in violation of law, rule, code, or regulation, MIVA reserves the right to notify any governmental, law enforcement, regulatory, or advocacy authority or agency of such, or any other agency or authority as MIVA deems appropriate, and cooperate in all respects with any such authority or agency.

24. DEFINITIONS.

In this Agreement the following terms have the meanings set forth below.

(a) “Ad Results” means a data feed of ads from MIVA’s servers and/or third-party listings, if available, as provided to you in XML format (i.e., in eXtensible Markup language) and/or HTML format in response to a Search.

(b) “Advertiser” means any third party who has entered into an agreement with MIVA, which obligates the third party to pay MIVA every time a User clicks on an ad in the Ad Results to that third party’s web site.

(c) “Advertiser Logo” means a graphical image that is 90 x 53 in pixel size and below 1000 bytes in file size and which is either in JPG or GIF format.

(d) “Advertiser Title” means the initial text provided by an Advertiser to describe the Advertiser or the Advertiser URL.

(e) “Advertiser URL” means the URL provided by an Advertiser, in respect of an ad.

(f) “Business Day” means a day when banks are generally physically open to the public for business in the country where MIVA is incorporated.

(g) “Click Through” means the instance of (i) a User honestly and validly selecting any ad provided by MIVA in accordance with this Agreement and being transferred through MIVA’s server, as a result of such selection, to the appropriate advertiser’s website in respect of the Ad Result, or (ii) direct navigation activity where in response to a User’s interactions with a browser, website, or a toolbar, such as through entering text, clicking on a button, ad listing or category listing, MIVA re-directs the User directly to an advertiser’s website.

(h) “Content Query” means a Keyword is selected pursuant to a Specified Implementation (but not a Search Box Query), which is sent to MIVA’s servers to obtain information and data in respect of that Keyword.

(i) “Description” means a textual description provided by an Advertiser to describe the Advertiser or the Advertiser URL.

(j) “Impression Tracking Code” shall mean the code created and supplied by MIVA which enables MIVA to measure the number of impressions displayed by you.

(k) “Intellectual Property” means the MIVA Publisher Center, MIVA’s websites, the MIVA Marks, any and all MIVA marketing materials, and/or any and all copyrights (whether registered or not), know-how, technology, trade secrets, moral rights, publicity rights, privacy rights, patents, patent rights, and any other proprietary rights now owned or hereafter acquired or developed by MIVA.

(l) “Invalid Technical Measures” means any device (including any program, software, system or method) whether electronic or otherwise that executes Searches or click throughs that were not initiated by bona fide Users, as determined by MIVA in its sole discretion.

(m) “Keyword” means a keyword in respect of the Services.

(n) “Link” means an HTML <a>…</a> tag set link (with referral link part and with display part appropriately completed).

(o) “Marks” means trade marks, service marks, logos, domain names, URLs, graphics, buttons, banners, and business names, currently in existence or use or which either party may develop.

(p) “Network Affiliate” means a de facto owner, operator or manager of a Network Website.

(q) “Network Operator” is a status whereby you supply Ad Results to Network Websites on the terms of this Agreement.

(r) “Network Website” means a Site from which a Search may originate and/or where Results Pages are displayed and where the de facto owner, operator or manager of that website or other distribution source has contracted with you for you to provide ad results (including, inter alia, the Ad Results).

(s) “Payment” is defined in Clause 4(a) of these Terms and Conditions.

(t) “Payment Period” means a calendar month during the Term.

(u) “Pay-Per-Click Service” means a tailored search facility through one or more Specified Implementations, featuring Ad Results, implemented onto the Sites and branded as agreed under this Agreement, such that a URL Link is displayed which when clicked by a User, directs the User to the related advertiser website in respect of that URL.

(v) “Prominence” means not obscured by any pop-ups or DHTML text or other graphics or interstitial third party banners or advertising.

(w) “Results Page” means each page (or other display) on the Sites that contain Ad Results, of a design according to a Specified Implementation or otherwise subject to MIVA’s approval, in an appropriate, relevant, and easily visible location.

(x) “Search” means a Search Box Query or a Content Query, as applicable.

(y) “Search Box Query” means a word or phrase typed into a web search box in connection with performing a web search in respect of that word or phrase, as mapped by MIVA to a relevant Keyword which is sent to MIVA’s servers to obtain information and data in respect of that Keyword.

(z) “Services” are defined in Clause 1 of these Terms and Conditions.

(aa) “Sites” means the websites and/or, if approved by MIVA, other distribution source(s), such as email or software application, on which ads from the Ad Results are displayed.

(bb) “Specified Implementation” means in any particular case, an Ad Units and Ad Zones Implementation, Search Implementation, Domain Implementation, XML Implementation, Directory Implementation, and/or Direct Navigation Implementation, as set forth in Clause 3 of these Terms and Conditions, or other implementation provided and approved by MIVA, as may be modified or otherwise specified by MIVA, in its sole discretion.

(cc) “Term” is defined in Clause 5 of these Terms and Conditions.

(dd) “URL” means uniform resource locator.

(ee) “User” means a human user who accesses or otherwise uses any of the Sites.

(ff) “XML” means Extensible Markup Language.

Version: 5 June 2009