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LinkConnector Merchant Program Terms and Conditions


INTRODUCTION: LinkConnector, of 6501 Weston Parkway, Suite 330, Cary, North Carolina 27513, provides you access to our LinkConnector Affiliate Program subject to your compliance with the terms and conditions below ("Agreement"). Please read this Agreement carefully. By enrolling or participating as a LinkConnector merchant ("Merchant") with LinkConnector whereby you agree to pay Affiliates a commission for the promotion of goods and services and allow Affiliates to place Merchant Links on their website(s), you, the Merchant, agree to be bound by these terms and conditions. The below terms and conditions are effective January 1, 2012.

1. DEFINITIONS.


The following terms shall have the meanings set forth below:

"Account Detail" means Merchant name, Merchant Sites, Merchant's contact information-including, but not limited to any contact name, email address, physical address, and telephone number.

"Affiliate" means a person or company that agrees to promote Merchant Services or the Merchant Site in accordance with Merchant Terms and Merchant Campaign Terms in exchange for a commission.

"Affiliate Event" means an individual action by an End User; such as a Click Event, Lead Event, Sale Event, Call Event, Reward Event, or Go Event; within a Campaign that is tracked and recorded in a LinkConnector Transaction Table for which commission is owed to an Affiliate by the Merchant unless invalidated in accordance with this Agreement.

"Affiliate Program" means a pay-for-performance program where an Affiliate receives a commission for sending an End User to the Merchant Site which then generates an Affiliate Event.

"Affiliate Promotion" means any link, banner, and other creative used by an Affiliate on any electronic device (e.g., laptop, desktop, mobile phone, etc.) or printed material (e.g., magazine ad, signage, etc.) to promote a merchant's product or services with the intention of receiving compensation from the merchant through their Affiliate Program.

"Call Event" is an Affiliate Event that allows the Merchant to credit Affiliates for completing a telephone call form by the End User and for End User Data obtained when an End User completes a telephone call form. The minimum commission payable to Affiliates for a Call Event is as listed in the LinkConnector Merchant Manager at the time the event is created.

"Campaign" means a logical grouping of Merchant Links and Events in the LinkConnector Affiliate Program through which a Merchant manages their program using the LinkConnector Merchant Manager. By way of example, a Campaign might be called 'Book Sales' and include Merchant Links which promote books and Events which record sales for books.

"Click Event" is an Affiliate Event that allows the Merchant to credit Affiliates for incoming clicks originating from an Affiliate Promotion to the Merchant Site. The minimum commission payable to Affiliates for a Click Event is as listed in the LinkConnector Merchant Manager at the time the event is created.

"Closed Month" is any month for which Monthly Closeout has occurred.

"Co-Managed Account" is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is co-managed by Merchant and LinkConnector. This account type is selectable by Merchant at its discretion.

"End User" means an Internet user who clicks to the Merchant Site using a Merchant Link.

"End User Data" means all information and data of an End User collected by Merchant, including, but not limited to, name, address, telephone number and email address.

"Expired Code" means any LinkConnector Merchant Code associated with an expired Campaign or no longer associated with an active Campaign.

"Event" is either an Affiliate Event or a Merchant Event.

"Event State" is an Affiliate Event designated as a Valid Event, Pending Event, or Invalid Event.

"Go Event" is an Affiliate Event that allows the Merchant to credit Affiliates for clicks originating on the Merchant Site. The minimum commission payable to Affiliates for a Go Event is as listed in the LinkConnector Merchant Manager at the time the event is created.

"Inoperable Code" means any LinkConnector Merchant Code or Naked Link Code provided by LinkConnector to Merchant that is either modified by Merchant without LinkConnector approval or is missing from Merchant Site resulting in Affiliate Event(s) not being tracked or being tracked erroneously.

"Intellectual Property" means all industrial and intellectual property rights existing from time to time including any patents, design rights, registered designs, trademarks, service marks, copyrights, moral rights, trade secrets, know-how, and all applications and registrations therefore, and all goodwill associated therewith.

"Invalid Event" is an Affiliate Event that has been disapproved by Merchant or LinkConnector for commission payment to Affiliate.

"Lead Event" is an Affiliate Event that allows the Merchant to credit Affiliates for End User Data obtained when an End User performs a specified action such as filling out a form, registering for a service, or downloading a file from the Merchant's Site. The minimum commission payable to Affiliates for a Lead Event is as listed in the LinkConnector Merchant Manager at the time the event is created.

"LinkConnector Merchant Code" is any HTML (Hypertext Markup Language, the authoring language used to create documents on the World Wide Web.), JavaScript, or any other program code and tags provided to the Merchant via the LinkConnector Merchant Manager or directly by LinkConnector. This code is intended to call Event(s) for any active campaign and is to be placed as provided into the HTML on the Merchant Site as directed by LinkConnector.

"LinkConnector Merchant Manager" is the web-based interface that can be accessed through username and password which a Merchant uses to manage its Merchant Affiliate Program. The LinkConnector Merchant Manager is accessible on LinkConnector's login page at https://www.linkconnector.com/login.htm.

"LinkConnector Redirect Server" means the LinkConnector servers used to track redirect links used in Standard Link Campaigns or used when functionality selected by Merchant dictates tracking through redirect links in a Naked Link Campaign.

"LinkConnector Services" means the various related content, links, products and services provided by LinkConnector on or through the LinkConnector Site.

"LinkConnector Site" means the Internet World Wide Web presence operated by or for LinkConnector, located on the Internet through the http://www.LinkConnector.com URL (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).

"LinkConnector Transaction Table" means a table in LinkConnector's online database that contains information about End User actions related to Merchant Links, Events, and related Affiliates.

"Marks" means logos, trademarks, trade names, service marks or other identifying emblems, words or designs of LinkConnector or Merchant, as the case may be, to designate and identify itself or the particular products or services its offers.

"Merchant Account" is either Merchant's Self-Managed Account, Co-Managed Account or Premier Account.

"Merchant Affiliate Program" means all of the Merchant's past and present Campaigns within the LinkConnector Services.

"Merchant Campaign Terms" are the terms set by the Merchant as conditions for participating in a particular Merchant's Campaign. At a minimum they include this Agreement in its entirety, the Merchant's Terms and any Campaign-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the LinkConnector Affiliate Manager.

"Merchant Event" is any Tracking Event added by Merchant on which an End User clicks and for which the action is tracked and recorded in a LinkConnector Transaction Table.

"Merchant Link(s)" means an advertisement in the form of a banner, text link, or object (e.g., HTML creative, Flash creative, etc.) used in an Affiliate Promotion. When clicked, the link directs an End User to the Merchant Site.

"Merchant Service(s)" means the product(s) or service(s) offered by the Merchant through the Merchant Site.

"Merchant Site" means the Internet World Wide Web presence operated by or for Merchant, (as modified to comply with the provisions of this Agreement, and future versions, upgrades, successors and replacements thereof).

"Merchant Terms" are the terms set by the Merchant as conditions for participating in their Merchant Affiliate Program. At a minimum they include this Agreement in its entirety and any account-specific terms reflected in the Merchant Campaign information available to an Affiliate online through the LinkConnector Affiliate Manager.

"Merchant Transaction(s)" means any Event caused by the action of an End User which is recorded by LinkConnector and written to the LinkConnector Transaction Table.

"Monthly Closeout" occurs at midnight Pacific Time ten (10) days after the end of a month.

"Naked Link Campaign" is a type of Campaign where Affiliates send traffic directly to Merchant and LinkConnector tracks through LinkConnector's proprietary Naked Link Code.

"Naked Link Code" is code placed on Merchant Site that records all visits by Affiliates approved on Merchant's Naked Link Campaign.

"Pending Event" is an Affiliate Event that is being considered for approval as a Valid Event or disapproval as an Invalid Event by Merchant or LinkConnector.

"Premier Account" is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is co-managed by Merchant and LinkConnector. This account type is only available to Merchant at LinkConnector's sole discretion.

"Replenishment Value" means the amount, as determined by the Merchant or LinkConnector, which shall be added to the Prepay Account, defined herein, when the Threshold Value is reached.

"Reward Event" is an Affiliate Event that allows the Merchant to reward an Affiliate beyond any commissions paid for individual Merchant Transactions.

"Sale Event" is an Affiliate Event that allows the Merchant to credit Affiliates for purchases by an End User of Merchant Services on the Merchant Site. The minimum commission payable to Affiliates for a Sale Event is as listed in the LinkConnector Merchant Manager at the time the event is created.

"Self-Managed Account" is one of three merchant account types offered by LinkConnector. Generally, this type of merchant account is managed by Merchant with technical support provided by LinkConnector. This account type is selectable by Merchant at its discretion.

"Service Level Guarantee" means the LinkConnector Site will be unavailable to the general public for no more than forty-eight (48) aggregate hours during any thirty (30) day period, excluding routine maintenance which shall occur during the hours of 2 a.m. to 7 a.m. Eastern Time no more than twice per month.

"Service Level Minimums" means industry standard service levels for like services, including, without limitation, standards for supporting online transactions, providing accurate and secure transmission of personal, credit card and other information, prevention of unauthorized access to End User Data, and availability of the Merchant Site to End Users.

"Source Checker" is a LinkConnector technology requiring most Affiliates to receive prior approval for their Internet World Wide Web presence operated by or for Affiliate.

"Standard Link Campaign" is a type of Campaign where Affiliates send traffic to a LinkConnector Redirect Server.

"Threshold Value" means the amount, as determined by the Merchant or LinkConnector, in the Prepay Account, defined herein, at which the account requires replenishment.

"Tracking Event" is an Event that allows the Merchant to track the arrival and activity of an Internet user on the Merchant Site.

"Valid Event" is an Affiliate Event that has been approved by Merchant or LinkConnector for commission payment to Affiliate.

All other initially capitalized terms shall have the meanings assigned to them in this Agreement.


2. LICENSES/OWNERSHIP OF LINKCONNECTOR SITE.


2.1 Rights Granted by Merchant.

(a) License; License Restrictions. Merchant grants to LinkConnector a nonexclusive, nontransferable, royalty-free (without right to sublicense) license to use and display, during the Term of this Agreement, the Merchant Marks, solely for the purpose of promoting the Merchant Affiliate Program and to link to the Merchant Site. LinkConnector agrees that the Merchant Marks are and will remain the sole property of Merchant and agrees not to contest the ownership of such Merchant Marks, nor misappropriate the Merchant Marks for LinkConnector's own use. Merchant reserves all rights to control the use of the Merchant Marks, and LinkConnector shall not change or modify the Merchant Marks in any manner without prior written authorization from Merchant.

(b) Reservation of Rights. Except as expressly granted in this Agreement, LinkConnector shall have no other rights of any kind in the Merchant Marks or the Merchant Site. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any of Merchant's Intellectual Property or proprietary technology other than the use of the Merchant Marks in accordance with the terms of this Agreement. LinkConnector acknowledges that the Merchant Services are the sole property of Merchant, and this Agreement only grants LinkConnector a limited right to promote the Merchant Affiliate Program and to link to the Merchant Site under the terms and conditions of this Agreement. The Merchant Marks may not be used as a feature or design element of any other logo without prior written authorization from Merchant.

2.2 LinkConnector Ownership Rights. All content, writings, graphics, tables, sounds and other materials on the LinkConnector Site, the design, layout and general look and feel of the LinkConnector Site, and all Intellectual Property embodied therein or pertaining thereto, (other than Merchant supplied materials or Merchant Marks on the LinkConnector Site) shall remain the sole and exclusive property of LinkConnector or its licensors. LinkConnector will retain sole control and ownership over the look and feel, content, layout and design of the LinkConnector Site. Nothing under this Agreement shall be construed as granting to Merchant any license or right in or to any Intellectual Property of LinkConnector.


3. RIGHTS AND OBLIGATIONS OF THE PARTIES.


3.1 LinkConnector's Rights and Obligations.

(a) LinkConnector shall meet the Service Level Guarantee.

(b) LinkConnector shall be solely and exclusively responsible for all operation, hosting, and maintenance on the LinkConnector Site.

(c) LinkConnector shall provide automated, real-time tracking; reporting; and analysis of Merchant Links and Events on every Merchant Transaction recorded for an Affiliate.

(d) LinkConnector shall provide monthly commission processing and payment for all Affiliates with Funded Valid Events, defined herein, on behalf of the Merchant.

(e) LinkConnector shall provide or make available the following for Self-Managed account types:

(1) One Standard Campaign in accordance with section 5.5(c). Additional Standard Link Campaigns are available in accordance with sections 5.4(a)(1) and 5.5(c).

(2) One active Event. Additional Events are available in accordance with section 5.4(a)(2).

(3) LinkConnector may make additional Merchant Affiliate Program management services available to Merchant in accordance with section 5.6.

(f) LinkConnector shall provide or make available the following for Co-Managed account types:

(1) Standard Link Campaigns are available in accordance with section 5.5(c).

(2) Naked Link Campaigns are available in accordance with sections 5.5(c) and 5.5(e).

(3) Source Checker.

(4) Designated LinkConnector Account Manager available during standard LC business hours who will work with Merchant to upload Merchant Links and review and approve affiliate applications in accordance with Merchant's acceptance policy.

(5) LinkConnector may make additional Merchant Affiliate Program management services available to Merchant in accordance with section 5.6.

(g) LinkConnector shall provide or make available the following for Premier account types:

(1) Standard Link Campaigns

(2) Naked Link Campaigns

(3) Source Checker.

(4) Designated LinkConnector Senior Account Manager available during standard LC business hours who will work with Merchant to upload Merchant Links, review and approve affiliate applications in accordance with Merchant's acceptance policy, process validations of Events, develop and distribute Campaign newsletters with any Merchant provided material, recruitment and communication with LinkConnector affiliates, recruitment and communication with out-of-network affiliates, and provide a monthly Campaign performance report.

(5) LinkConnector may make additional Merchant Affiliate Program management services available to Merchant in accordance with section 5.6.

(h) LinkConnector has the right to not accept individuals, or any multi-level marketing, franchised, reseller, or third party websites, and reserves the right to not accept Merchants in certain vertical markets or Merchants it deems, in its sole discretion, harmful to LinkConnector. Additionally, LinkConnector does not accept Merchant Sites that are under construction or that are personal homepages.

(i) LinkConnector has the right to conduct an audit. No more frequently than once during any 12 month period during the Term and for three years thereafter, LinkConnector may cause an independent certified public accounting firm reasonably acceptable to the other Party to audit Merchant's books and records supporting the amounts owed under this Agreement. The cost of such audit shall be borne exclusively by LinkConnector, provided that Merchant shall reimburse LinkConnector for the cost of such audit in the event such audit reveals that the amount paid to LinkConnector during the period covered by such audit is less than 95% of the amount of such fees actually due for such period. Such audit will be conducted upon no less than fourteen (14) days' prior written notice, during the Merchant's regular business hours at the Merchant's offices and in such manner as not to significantly interfere with the Merchant's normal business activities.

(j) Merchant grants LinkConnector the right and license to distribute or transmit Merchant Links to an Affiliate for use for Affiliate Promotion.

(k) Merchant grants LinkConnector the right to deem any Pending Event past the Merchant's Pending Event Duration ("Pending Event Duration") as a Valid Event. In no case, unless approved by LinkConnector in writing, will the Merchant's Pending Event Duration exceed sixty (60) days for a Self-Managed Account and one hundred and twenty (120) days for a Co-Managed Account or Premier Account.

(l) LinkConnector has the right to provide Merchant's Account Detail and any information related to Merchant's Campaigns to Affiliates, and third parties on the LinkConnector Site, and on any LinkConnector promotional materials.

3.2 Merchant's Rights and Obligations.

(a) Merchant shall be solely and exclusively responsible for all operation, hosting, and maintenance on the Merchant Site(s).

(b) Except as provided herein, Merchant may not modify LinkConnector Merchant Code without prior written consent from LinkConnector. Merchant agrees to use the LinkConnector Merchant Code required to call the Event(s) as provided by LinkConnector for any active Campaign. Merchant may not alter, copy, modify, take, sell, reuse, or divulge any LinkConnector Merchant Code, except as is necessary to partake in the LinkConnector Affiliate Program. Requests for changes to LinkConnector Merchant Code should be sent to in accordance with section 12.7. Failure to meet this obligation may result in a make good in accordance with section 5.3(c)(1).

(c) Merchant agrees to pay LinkConnector all commissions owed to Affiliates in accordance with section 5.7(b) and agrees to pay LinkConnector all fees related to the Merchant Account in accordance with section 5.7(a).

(d) Merchant agrees to review all Merchant Transactions in LinkConnector's Merchant Manager by each Monthly Closeout and mark, as appropriate, Merchant Transactions as Valid Event(s), Invalid Event(s), or Pending Event(s).

(e) Merchant may change the Event State for Events from a Valid Event or Pending Event to an Invalid Event prior to each Monthly Closeout in circumstances of (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Event; (iv) Affiliate's failure to comply with Merchant Campaign Terms; and (v) non-receipt of payment from, or refund of payment to, the User by the Merchant for a Sale Event. Merchant shall not have the right to invalidate Merchant Transactions because of a Merchant's determination that commissions or fees were paid out through other promotional efforts.

(f) Merchant may submit Merchant material for each Event and Merchant Link through the LinkConnector Merchant Manager accessible on LinkConnector's Login page at http://www.linkconnector.com/login.htm. LinkConnector reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Merchant material or Merchant Site for any reason at any time, with or without notice to the Merchant and regardless of whether such Merchant Site was previously accepted.

(g) Merchant may change their account type. Requests for a change of an account type shall be submitted to LinkConnector in accordance with section 12.7 and, if acceptable to LinkConnector at its sole discretion, such requested change of account type shall become effective on the first day of the month following the change request.

(h) Merchant agrees to remove all Expired Code, defined herein. Failure to meet this obligation may result in a fee in accordance with section 5.3(c)(2).

(i) Merchant agrees that all communications with Affiliates using LinkConnector's internal e-mail system provided as part of the LinkConnector Services will be solely related to the promotion or execution of the Merchant Affiliate Program, as defined herein.

(j) Merchant may make changes to active Campaigns, including but not limited to modifying Merchant Terms or expiring creative, at anytime, provided they provide LinkConnector and Affiliates with at least seven (7) days written notice.

(k) Merchant will establish a prepay account ("Prepay Account") prior to launching the first Campaign in the amount of the Replenishment Value initially selected in the Merchant Manager by/for the Merchant and such an account will not accrue interest for Merchant. Anytime the Prepay Account balance is equal to or below the Threshold Value, Merchant shall add money to the Prepay Account in the amount of the Replenishment Value by either (i) authorizing LinkConnector to charge Merchant's credit card, (ii), making a PayPal payment into LinkConnector's PayPal account (paypal@linkconnector.com) or (iii) by making a payment via check in immediately available funds to LinkConnector. Merchant understands and agrees that Merchant will be charged and the Merchant's Prepay Account will be deducted for commissions and fees due under sections 5.3, 5.4, 5.5 and 5.6. If Merchant deactivates their account, LinkConnector will refund any remaining Prepay Account balance in accordance with section 11.4.

(l) Merchant agrees to provide an Affiliate, which will be removed from a Campaign for any reason other than cause, at least seven (7) days written notice.

(m) Merchant agrees not to redirect End User from Merchant Site prior to Merchant Transaction being completed without compensating Affiliate for such a Merchant Transaction.

(n) Merchant agrees to provide End Users a clear link on Merchant Site to a privacy policy that is in full compliance with all applicable FTC guidelines and any other applicable laws, rules, and regulations.

(o) Merchant is required to keep Account Detail accurate and current. Merchant is responsible for all Merchant Account usage and activity and for the loss, theft, and/or unauthorized disclosure of its password. Merchant shall provide LinkConnector written notice of any known or suspected unauthorized use or breach of the security of the Merchant Account.

(p) Merchant is obligated to independently assess and comply with all relevant tax and legal requirements. Merchant also shall be responsible for its own sales tax collection and reporting obligations arising from Merchant Transactions occurring within the Term of this Agreement.


4. EXCLUSIVITY.


4.1 The Merchant is not barred by this Agreement from participating in any other Affiliate Program offered by a LinkConnector competitor.


5. PAYMENTS.


5.1 Initial Deposit. Merchant will make an initial deposit ("Initial Deposit") with LinkConnector in the amount of the Network Access Fee, defined herein. If Merchant submits a valid credit card with the application, the Initial Deposit will be processed with the application and the Merchant Account will be immediately available to Merchant ("Activation Date"). If Merchant chooses on the application to pay the Initial Deposit either (i) by making a PayPal payment into LinkConnector's PayPal account (paypal@linkconnector.com) or (ii) with a check in immediately available funds; the Activation Date, the first day the Merchant Account will be available to Merchant, will occur only after LinkConnector has received the Initial Deposit. The Initial Deposit will be used to pay the Network Access Fee.

5.2 Network Access Fee. Merchant will be charged a one-time, non-refundable fee "Network Access Fee" from the Initial Deposit on the Activation Date in the amount of (i) five hundred U.S. dollars ($500) for Self-Managed Accounts, (ii) two thousand U.S. dollars ($2,000) for Co-Managed Accounts, or (iii) three thousand U.S. dollars ($3,000) for Premier Accounts. The Network Access Fee provides Merchant with setup and launch of one or more Campaigns, if set up in accordance with the section 5.5(c), and access to LinkConnector Affiliates via LinkConnector's Merchant Manager.

5.3 Transactional Fees. Transactional fees are recorded in the LinkConnector Transaction Table for each Merchant Transaction.

(a) LinkConnector Transactional Fee. The fee for each Affiliate Event in a Campaign ("LinkConnector Transactional Fee") is a percentage of the Affiliate commission the Merchant sets per Affiliate Event in the Merchant account. The minimum LinkConnector Transactional Fee for any Sale Event, Lead Event or Call Event is $0.30 U.S dollars ("Minimum LinkConnector Transactional Fee").

(1) The LinkConnector Transactional Fee for Self-Managed Accounts is 23% of commissions owed to Affiliates in accordance with section 5.7(b). If Merchant elects to make payments to LinkConnector via ACH, wire, check, or PayPal, Merchant will have the 23% rate discounted by 3% for a revised rate of 20%.

(2) The LinkConnector Transactional Fee for Co-Managed Accounts is 28% of commissions owed to Affiliates in accordance with section 5.7(b). If Merchant elects to make payments to LinkConnector via ACH, wire, check, or PayPal, Merchant will have the 28% rate discounted by 3% for a revised rate of 25%.

(3) The LinkConnector Transactional Fee for Premier Accounts is 33% of commissions owed to Affiliates in accordance with section 5.7(b). If Merchant elects to make payments to LinkConnector via ACH, wire, check, or PayPal, Merchant will have the 33% rate discounted by 3% for a revised rate of 30%.

(b) LinkConnector Tracking Fee. A tracking fee ("LinkConnector Tracking Fee") will be charged to Merchant if Merchant chooses to use one or more Merchant Events.

(1) The LinkConnector Tracking Fee for all account types for each Merchant Event in a Campaign is $0.01.

(c) Make Good for Inoperable Code and Fee for Expired Code.

(1) Make Good for Inoperable Code. For any active Campaign, Merchant will be subject to a make good for any Inoperable Code. These estimated Affiliate commissions and LinkConnector Transactional Fees will be based on previous Affiliate performance and activity and will be calculated per diem until the issue is resolved or the Campaign(s) expire. Additionally, LinkConnector reserves the right to charge a recovery fee ("Campaign Recovery Fee") in the amount of two hundred ($200) U.S. dollars per occurrence.

(2) Expired Code Fee. LinkConnector reserves the right to charge a fee based on Merchant's failure to remove LinkConnector code relating to expired Campaign(s) ("Expired Code"). This fee will be the LinkConnector Tracking Fee for any click recording calls resulting from Expired Code and the Minimum LinkConnector Transactional Fee for any Affiliate Event recording calls resulting from Expired Code. LinkConnector also reserves the right to display an error message on Merchant's website(s) for expired code.

5.4 Monthly Minimum LinkConnector Fee. For any calendar month after an initial grace period, Merchant may be charged a minimum fee ("Monthly Minimum LinkConnector Fee") each month as set forth below. Merchant is responsible for any Minimum LinkConnector Fee as set forth in this section. Co-Managed and Premier Accounts may be eligible for a discount to the Minimum LinkConnector Fee as listed in the LinkConnector Merchant Manager at the then-current discount amounts. A Monthly Minimum LinkConnector Fee is computed and charged on the first day of a month ("Status Day") after the grace period (and then adjusted downward daily based on fees earned ("Funded Fees") by the Merchant) as the greater of $0 U.S. and the difference between the Minimum LinkConnector Fee minus any applicable discount to the Minimum LinkConnector Fee minus any LinkConnector Transactional Fees charged in a calendar month.

(a) The Minimum LinkConnector Fee for a Self-Managed Account is one hundred U.S. dollars ($100) after a grace period of one full month immediately following the Application Date, defined herein. The following items will increase the Minimum LinkConnector Fee for a Self-Managed Account as follows:

(1) Each additional active Standard Link Campaign beyond one Campaign provided for in section 3.1(e)(1) as calculated on the Status Day will increase the Minimum LinkConnector Fee for a Self-Managed Account by twenty-five U.S. dollars ($25).

(2) Each additional Event used in an active Campaign beyond one Event provided for in section 3.1(e)(2) as calculated on Status Day will increase the Minimum LinkConnector Fee for a Self-Managed Account by twenty-five U.S. dollars ($25).

(3) Use of Pending Event Duration of up to 30 Days will increase the Minimum LinkConnector Fee for a Self-Managed Account fifty U.S. dollars ($50). Use of Pending Event Duration of 31 to 60 Days will increase the Minimum LinkConnector Fee for a Self-Managed Account one hundred U.S. dollars ($100).

(4) Merchant electing to make payments to LinkConnector via PayPal or check will increase the Minimum LinkConnector Fee for a Self-Managed Account twenty-five U.S. dollars ($25).

(b) The Minimum LinkConnector Fee for a Co-Managed Account is one thousand U.S. dollars ($1,000) with a possible discount available up to five hundred ($500) U.S. dollars after a grace period of two full months immediately following the Application Date.

(c) The Minimum LinkConnector Fee for a Premier Account is two thousand U.S. dollars ($2,000) with a possible discount available up to one thousand ($1,000) U.S. dollars after a grace period of four full months immediately following the Application Date.

5.5 Setup and Maintenance Fees. The following setup fees will apply for applicable services needed by Merchant.

(a) LinkConnector Account Setup Fee. LinkConnector waives the LinkConnector Account Setup Fee.

(b) Product Feed Setup Fee.

(1) The Product Feed Setup Fee for a Self-Managed Account is five hundred U.S. dollars ($500). LinkConnector will waive the Product Feed Setup Fee if the product feed is set up within sixty (60) days of Application Date.

(2) The Product Feed Setup Fee for a Co-Managed Account is two hundred and fifty U.S. dollars ($250). LinkConnector will waive the Product Feed Setup Fee is the product feed is set up within sixty (60) days of Application Date.

(c) Campaign Setup Fee. For Self-Managed and Co-Managed Accounts, the fee for setting up a Campaign for a Merchant Site not already set up as a Campaign in LinkConnector is five hundred U.S. dollars ($500). For a Self-Managed Account, LinkConnector will waive this fee for the first Campaign if the Campaign is set up and launched successfully within thirty (30) days of the Application Date. For a Co-Managed Account, LinkConnector will waive this fee for any Campaign that is set up and launched successfully within sixty (60) days of the Application Date.

(d) Pipeline Setup Fee. The fee for setting up a Campaign as a pipeline campaign, which allows Merchant to restrict calling the LinkConnector Merchant Code under specific approved circumstances, is two hundred ($200) U.S. dollars.

(e) Naked Link Campaign Maintenance Fee. The fee for maintaining a Naked Link Campaign is one hundred ($100) U.S. dollars for any month any active Naked Link Campaign with a unique Merchant Site.

5.6 Optional Account Management Services. Merchant may purchase additional Merchant Affiliate Program management services ("Optional Account Management Services") through the LinkConnector Merchant Manager at the then-current pricing and this Agreement shall apply to those purchased services unless otherwise agreed upon by both parties.

5.7 Payment Terms. Merchant must establish a Prepay Account in accordance with section 3.2(k) and must keep a positive balance in the account unless specifically waived in writing by LinkConnector. LinkConnector reserves the right to set and negotiate specific payment terms on an individual basis. LinkConnector will use Merchant Prepay Account to pay all monies owed as described herein.

(a) For fees due under sections 5.3, 5.4, 5.5 and 5.6, the Merchant's Prepay Account shall be debited prior to funding Valid Events ("Funded Valid Events") and Pending Events before each Monthly Closeout.

(b) The Merchant's Prepay account shall be debited for commissions owed to affiliates for (i) Valid Events and (ii) Pending Events for promoting Merchant Services; both events as defined, accounted, and audited by LinkConnector.

(c) LinkConnector typically pays Affiliates within twenty (20) business days after the end of an applicable month for all Funded Valid Events. All accounts will be settled in U.S. dollars, unless otherwise agreed upon by the Affiliate, Merchant, and LinkConnector. No payments will be made to affiliates for any amounts less than (i) $50 for PayPal or (ii) $100 for any other payment method. Any amounts less than these minimum amounts will carry over to the next month for possible payment if minimums are met. Every U.S. based Merchant and Affiliate account (where applicable) must have a unique taxpayer identification number (TIN) or Social Security Number. Payments LinkConnector makes on behalf of Merchant for any commissions for Funded Valid Events will be made to U.S. based Affiliate accounts only if they provide proper tax identification information.

(d) A Merchant's right to access Merchant account with LinkConnector is subject to any limits established by LinkConnector, its contractors, or by credit card issuer. Should Merchant's account drop below zero balance, LinkConnector has the right to suspend Merchant's account at LinkConnector's sole discretion.

(e) Returned or cancelled payment bank/service fees due to any error or omission in Merchant's account are the Merchant's responsibility, and will be deducted from the Merchant Prepay Account.

(f) If Merchant fails to make a payment as set forth herein, LinkConnector may charge a late fee equal to 1% monthly (or the highest amount allowed by law if less than 1% monthly) of all past due charges, and all reasonable expenses (including attorneys' fees) incurred by LinkConnector in collecting such charges. Additionally, LinkConnector will impose a negative balance fee ("Negative Balance Fee") if any Valid Events remain unfunded in any Closed Month after each Monthly Closeout ("Unfunded Valid Events"). The Negative Balance Fee will be in the amount of the lessor of (i) 20% of the sum of commissions owed to affiliates and LC Transactional Fees for Unfunded Valid Events or (ii) two hundred ($200) U.S. dollars.


6. REPRESENTATIONS, WARRANTIES AND COVENANTS.


6.1 By LinkConnector. LinkConnector represents, warrants and covenants that: (i) it has sufficient rights to grant Merchant the rights and licenses set forth herein; (ii) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the LinkConnector Services and the LinkConnector Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the LinkConnector Services and the LinkConnector Site are not false or misleading; (viii) the LinkConnector Services and the LinkConnector Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define); and (ix) the LinkConnector Services and the LinkConnector Site are neither defamatory, libelous, militant, hateful, slanderous or threatening.

6.2 By Merchant. Merchant represents, warrants and covenants that: (i) it has sufficient rights to grant LinkConnector the rights and licenses set forth herein; (ii) to the best of its knowledge, the Merchant Services and the Merchant Site does not and will not violate any applicable law or regulation; (iii) the execution, delivery and performance of this Agreement by it does not conflict with any agreement to which it is a party or by which it may be bound; (iv) it has full legal authority to enter into this Agreement and to carry out the provisions hereof; (v) to the best of its knowledge, the Merchant Services and the Merchant Site do not infringe in any manner any copyright, patent, trademark, trade secret or other Intellectual Property right of any third party; (vi) to the best of its knowledge, the Merchant Services and the Merchant Site do not breach any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or has not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (vii) the Merchant Services and the Merchant Site are not false or misleading; (viii) the Merchant Services and the Merchant Site do not produce, provide or are in any manner related to pornographic products or services (which LinkConnector shall have complete discretion to define), or their subsidiaries or foundations funded by such companies whose function is to improve acceptance of such products by the public; and (ix) the Merchant Services and the Merchant Site are neither defamatory, libelous, militant, hateful, slanderous or threatening (which LinkConnector shall have complete discretion to define).

Merchant further represents that all information provided to LinkConnector for the purpose of enrolling as a merchant will be accurate, complete and current. Merchant is responsible for keeping contact information up to date, including but not limited to financial information and contact emails.


7. DISCLAIMERS; LIMITATION OF LIABILITY.


7.1 Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTIONS 3 AND 6, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE MERCHANT SERVICE OR THE LINKCONNECTOR SERVICE INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.

7.2 Limitation of Liability. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY AND PRIVACY PROVISIONS OF SECTION 9 AND INDEMNIFICATION OBLIGATIONS ARISING UNDER SECTION 10, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, PARENT COMPANIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, POTENTIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOST PROFITS OR LOST REVENUES) EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


8. FORCE MAJEURE.


8.1 A party shall not be considered to be in default in the performance of any obligations under this Agreement when a failure of performance is due to an uncontrollable force. The term "uncontrollable force," as used in this Agreement, shall mean an unanticipated event which is not reasonably within the control of the affected party and which by exercise of reasonable due diligence, such affected party could not reasonably have been expected to avoid, overcome or obtain or cause to be obtained a commercially reasonable substitute therefor. Such causes may include, without limitation, the following: flood, earthquake, tornado, storm, fire, terrorist attack, explosion, public emergency, civil disobedience, labor dispute, labor or material shortage, sabotage, restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep the necessary authorizations or approvals from any governmental agency or authority; however, no party shall be relieved of its obligations hereunder, if its failure of performance is due to removable or remediable causes which such party fails to remove or remedy using commercially reasonable efforts within a reasonable time period. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give prompt notice of such fact to the other, followed by written confirmation of that notice, and shall exercise due diligence to remove such inability with all reasonable dispatch.


9. INDEMNIFICATION.


9.1 By Merchant. Merchant agrees to indemnify, defend and hold harmless LinkConnector and its officers, directors, employees, agents, successors and assigns 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 made by third parties against LinkConnector: (i) alleging that Merchant's Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; (ii) arising out of or relating to the Merchant Service or the Merchant Marks; or (iii) due to a breach by Merchant of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.

9.2 By LinkConnector. LinkConnector agrees to indemnify, defend and hold harmless Merchant and its officers, directors, employees, agents, successors and assigns 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 made by third parties against Merchant: (i) alleging that LinkConnector's Marks or other Intellectual Property infringe the patents, copyrights, trademarks or service marks or other Intellectual Property rights of such third parties; or (ii) due to a breach by LinkConnector of its warranties, representations, obligations or covenants or otherwise breaches this Agreement.

9.3 Procedures. The Indemnified Party shall (i) promptly notify the Indemnifying Party in writing of such suit, claim, or proceeding; (ii) give the Indemnifying Party, at its expense, reasonable information, assistance and cooperation required to defend such suit, claim, or proceeding; and (iii) allow the Indemnifying Party to control the defense of any such action and all negotiations for its settlement or compromise. The Indemnified Party may be represented in the defense of any such claim, at the Indemnified Party's expense, by counsel of the Indemnified Party's selection. The Indemnifying Party shall have no liability for settlements or costs incurred without its consent. The Indemnifying Party shall not enter into any settlement that imposes liability or restrictions on the Indemnified Party without the Indemnified Party's prior written consent, such consent not to be unreasonably withheld or delayed.


10. OWNERSHIP OF END USER DATA; CONFIDENTIALITY, AFFILIATE RELATIONSHIP.


10.1 Confidentiality. LinkConnector and Merchant agree that any and all information identified by the other as "Confidential" and/or "Proprietary", or which, under all of the circumstances, ought reasonably to be treated as Confidential and/or Proprietary, will not be directly or indirectly disclosed to any third person without the express consent of the other party for a period of three (3) years following termination of this Agreement and that neither party will make use of Confidential Information except under the terms of this Agreement. These confidentiality obligations shall not apply to any information which: (i) is or subsequently becomes available to the general public other than through a breach by the receiving party; (ii) is already known to the receiving party before disclosure by the disclosing party; (iii) is developed through the independent efforts of the receiving party; (iv) the receiving party rightfully receives from a third party without restriction as to confidentiality or use; or (v) is requested pursuant to a subpoena; provided, that the party responding to such subpoena gives the other party reasonable notice and opportunity to intervene to quash such subpoena.

10.2 Privacy of Consumer Information. Notwithstanding anything in this Agreement to the contrary, if it is necessary for Merchant to disclose any End User Data to LinkConnector for any reason, LinkConnector agrees that at no time shall LinkConnector use or disclose any such End User Data that LinkConnector may obtain in connection with this Agreement, except as required by law; provided that nothing herein shall require Merchant to disclose End User Data to LinkConnector.

10.3 Affiliate Relationship. During the Term of this Agreement and for 6 months thereafter, Merchant shall not knowingly solicit any Affiliate that is obtained through the LinkConnector Services, nor shall Merchant transfer any Affiliate obtained through the LinkConnector Services to any third party provider or to any in-house program substantially similar to the LinkConnector Services. Additionally, Merchant shall not encourage, including paying an Affiliate a higher commission, any such Affiliate to so transfer. In the event Merchant does violate this provision, Merchant shall pay LinkConnector what LinkConnector would have otherwise earned had such a violation not occurred. Except as expressly set forth in this paragraph, nothing herein shall be deemed to restrict Merchant from entering into independent strategic partnerships or other agreements with Affiliates, or to prohibit Merchant from advertising, merchandising or promoting its products or services.


11. TERM OF AGREEMENT AND TERMINATION.


If Merchant is dissatisfied with Merchant Account in the LinkConnector Affiliate Program or with any of the terms and conditions contained herein, Merchant's sole and exclusive remedy is to terminate Merchant account. Merchant may cancel participation in the LinkConnector Affiliate Program at any time after meeting Termination Requirements, in accordance with section 11.3.2, by sending notice in accordance with section 12.7.

11.1 Term. The term of this Agreement shall begin on the date the Merchant applies for an account ("Application Date") and shall continue until terminated by any of the actions enumerated in section 11.2.

11.2 Termination. This Agreement will terminate in the event of any of the following:

(a) immediately after a material breach, provided that the non-breaching party gives the other written notice of a material breach by the other of this Agreement and requests a cure, unless the breach is cured that day;

(b) immediately by either party after meeting applicable Termination Requirements, in accordance with section 11.3.

11.3 Termination Requirements.

11.3.1 LinkConnector may terminate this Agreement once notice of termination has been sent to Merchant in accordance with section 12.7.

11.3.2 Merchant may terminate this Agreement only after satisfying all of the following requirements:

(a) Once Merchant has expired all active Campaigns with seven (7) days notice to Affiliates approved for such Campaigns; and

(b) Once Merchant has removed all LinkConnector Merchant Code required to call the Event(s) as provided by LinkConnector for any Campaign; and

(c) Once notice of termination is received by LinkConnector in accordance with section 12.7.

11.4 Effect of Termination. Upon termination of this Agreement, all licenses granted by Merchant hereunder shall automatically terminate. Merchant shall review all Merchant Transactions in LinkConnector's Merchant Manager by the Monthly Closeout following Termination and mark, as appropriate, Merchant Transactions as valid or invalid. Any remaining amount in the Merchant's Prepay account shall be returned to Merchant after the Monthly Closeout following such termination within 30 days after the applicable Monthly Closeout.

11.5 Survival. Sections 5 (to the extent the payment obligations accrue prior to termination), 7, 9, 10, 11.4 and 12 shall survive any expiration or termination of this Agreement.

11.6 Suspension. LinkConnector reserves the right, at its sole discretion to suspend the Merchant if it suspects a material breach of section 3.2. If LinkConnector takes action to suspend, LinkConnector may do so immediately, but LinkConnector is not relieved of its obligation to notify the Merchant per section 11.2(a).


12. General


12.1 Choice of Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of North Carolina (including by not limited to the Uniform Electronic Transactions Act as enacted in North Carolina), without regard to conflict of laws provisions thereof. Furthermore, the parties agree that any dispute (including litigation) that arises between the parties shall have its venue in the state or federal courts of Wake County, North Carolina.

12.2 Assignment. Merchant may not assign all or any portion of this Agreement without the prior written consent of LinkConnector, which consent may be withheld at LinkConnector's sole discretion.

12.3 Relationship of the Parties. No partnership, joint venture, employment, agency, franchise, or other form of agreement or relationship is intended by this Agreement. The parties shall be independent contractors for all purposes in connection with this Agreement.

12.4 Entire Agreement. The parties agree that this Agreement constitutes the entire agreement between the parties as of the date hereof with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, whether oral or written. The parties agree that this Agreement may be modified or amended from time to time hereafter by LinkConnector as it deems necessary and Merchant agrees (in consideration for LinkConnector agreeing to continue doing business with Merchant) to be bound by such amendments, however, no such modification or amendment shall act to increase any financial obligation which Merchant may otherwise have to LinkConnector pursuant to this Agreement.

12.5 Press Releases. Neither party shall issue any press release or announcement relating to the relationship contemplated by this Agreement without the prior written consent of the other party.

12.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

12.7 Notices. All notices, requests, consents, and other communications under this Agreement from Merchant shall be in writing and shall be deemed delivered (i) two business days after being sent by registered or certified mail, return receipt requested, postage prepaid; (ii) one business day after being sent via a reputable nationwide overnight courier service guaranteeing next business day delivery; or (iii) immediately if via electronic mail if the form available in LinkConnector's Merchant Manager is used. If from LinkConnector to Merchant, immediately upon electronic mail to the primary contact email address is deemed an acceptable means of notification. In each case to the intended recipient as set forth below:

If to Merchant by electronic mail to the primary contact email address,

If to LinkConnector Corporation, at 6501 Weston Parkway, Suite 330, Cary, N.C. 27513, Attention: Choots Humphries, or via electronic mail using the form available at http://www.linkconnector.com/member/contact.htm or at such other address or addresses as may have been furnished in writing by LinkConnector to the other Party in the manner set forth in this section, with a copy to Richard Stephenson, Stephenson & Stephenson, LLP, 580 New Waverly Place, Suite 240, Cary, NC 27511 as deemed appropriate;

12.8 Section Headings. Section headings are for descriptive purposes only and shall not be used to interpret the meaning of this Agreement.

12.9 Attorneys' Fees. If either party fails to pay any amounts due under this Agreement or otherwise breaches this Agreement and the non-breaching party retains an attorney to collect such amounts or remedy such breach, then the breaching party shall be obligated to pay any amounts due herein including said non-breaching party's reasonable attorneys' fees incurred in collecting such amounts and court costs.

12.10 Non-Waiver. No delay or omission of either party in exercising any right accruing upon any default of the other party shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver thereof. A waiver by either of the parties of a breach or a default under any of the terms and conditions of this Agreement by the other party shall not be construed to be a waiver of any subsequent breach or default of any other term or condition of this Agreement.

12.11 Refund Policy. After completion of the Term, Merchant may request via written notice that LinkConnector refund any remaining Prepay Account balance. This refund will be issued in accordance with section 11.4.

12.12 Tax Status and Obligations. LinkConnector is not obligated to provide Merchant with tax and/or legal advice and nothing communicated by LinkConnector to Merchant shall be construed as such. Any Affiliate information provided to Merchant shall be provided accurately; however, LinkConnector is not responsible for verifying the accuracy of information provided to LinkConnector by an Affiliate.