PUBLISHER TERMS AND CONDITIONS This agreement ("Agreement") is made between Realcast Media ("RCM") and you, and sets forth the terms and conditions that govern RCM's provision to you of online advertising from various advertisers ("Advertising"), and your publication of the Advertising. You must agree to all of the terms and conditions set forth in this Agreement if you desire to be provided with and publish the Advertising. By completing RCM's registration process, and clicking on the "I agree" button below, you are agreeing to be bound by all of the terms and conditions of this Agreement. If you do not agree to all of the terms and conditions, click the "I do not agree" button below and exit RCM's registration process. 1. Provision of Advertising 1.1 Advertising. RCM will provide you with Advertising that you may publish on the web sites that are approved by and registered with RCM. If RCM accepts your registration, RCM will provide you with a password that will enable you to obtain RCM code ("Code") from an RCM web site. The RCM Code enables your registered web site to access the Advertising, which can then be viewed by your web site's end user. RCM may change the form and content of the Advertising from time to time at its sole discretion. 1.2 Right to Refuse. RCM has the right to refuse to accept your registration or the registration of any of your web sites at its sole discretion. Without limitation of this right, RCM may refuse web sites that contain (or have links to) any content deemed inappropriate by RCM at its sole discretion, such as: content promoting the use of alcohol, tobacco or any illegal substances; non-nude teen sites or teen model sites, pornography or adult-oriented content; violence, expletives or inappropriate language; illegal activity (such as copyright infringement); racism or hate; mail fraud, spam, pyramid schemes, investment opportunities or other advice not permitted under applicable law; or any content that is libelous, defamatory, contrary to public policy or otherwise unlawful. 2. Tracking and Payment 2.1 Tracking software. The Code will contain RCM tracking software that enables RCM to track the placement and publication of the Advertising calculate any amounts that may be owed to you by RCM under this Agreement. 2.2 Payment. RCM will pay the publisher with the following ad rates: 1. Agreed percentage of earned ad revenue from cpm, cpc or cpa advertising campaigns that have run on the publisher's web site. 2. A pre-negotiated cpm, cpc or cpa for all delivered advertising inventory on the publisher's web site. All pay rates are subject to change based upon performance. All impressions delivered on a single computer will be counted as one (1) impression. Impressions outside the United States may not be counted. RCM will not have any obligation to distribute accrued payments unless the payment is at least $25 (if you are located in the United States or Canada) or $50 (if you are located in any other country). RCM, in its sole discretion has the right to suspend payment, audit payments or not pay you for a violation of this Agreement. 2.3 Payment Terms. RCM will pay you for the publication of Adverting within 45 days after the end of the month in which you publish such Advertising. RCM reserves the right to change or negotiate a shorter or longer payment term for an individual publisher. All payments will be made in United States dollars. You must keep your payment address, email address and telephone number in your account current. All changes to your payment information must be sent to Billing@realcastmedia.com. 3. Your Responsibilities 3.1 Your Web Site. You can only register a web site with RCM if you are its legal owner. The Advertising provided to you under this Agreement can only be placed on registered web sites. 3.2 Treatment of Code. You cannot modify or make any changes to the Code. 3.3 Advertising Size and Location. All banners must be placed above the fold on your web site screen. Banners must be viewable without scrolling, and must be placed on a page with content. Popunder windows cannot be launched in conjunction with any other popunder. You may not place Advertising on top of another ad, on non-approved web sites, or in such a fashion that may be deceptive to the web site visitor. Advertising may not be placed in email messages. Advertising may not be placed on web pages that contain content that is not under your direct control, such as forums, message boards and chat rooms. 3.4 Valid Impressions. You may not use robots, spiders, auto-spawning browsers, auto-reloading or any other method of generating artificial or fraudulent impressions. RCM will not accept any of the following as valid impressions: E-mail impressions, newsgroup impressions, impression generating programs, type-ins, hitbots, zero frames, spawning scripts, refresh scripts, framed content pages, free hosting and community or redirection services. All impressions must be fully loaded and easily viewed by the end user. All Advertising must be served from an RCM server or RCM serving location. Stored images that are loaded from any other location will not be counted. 3.5 Proprietary Rights. You shall not have, nor will you claim, any right, title or interest in any Advertising. You are not granted any license to the name "RCM" or "Realcast Media" or any derivative thereof, or any other trademarks, logos, copyrights, patents, trade secrets or other intellectual property rights that are owned or controlled by RCM and made available to you in any manner. 3.6 Liability. In no event will you hold RCM liable for the content of the Advertising, or for any loss or damage caused by the Advertising or its publication. 3.7 Data. RCM will be the sole owner of all information it collects. You are solely responsible and liable for all use of any data that you collect in connection with the publication of the Advertising, and must use all such data in accordance with all applicable law, regulations and rules. 4. Marketing and Promotional Use You authorize RCM to use your name and logo on the RCM web site, in media collateral and in press releases. 5. Term and Termination 5.1 Initial Term. The initial term of this Agreement shall be for one (1) year from the date on which your registration is accepted, unless terminated earlier as provided in this Agreement. After one year, the term shall automatically renew for additional one (1) year periods, unless terminated by either party in accordance with this Agreement. 5.2 Termination. You may terminate this Agreement after the initial term by providing thirty (30) days written notice to RCM. You will have an obligation to fulfill any Advertising configured to run on your web site prior to such termination. RCM may terminate this Agreement at any time if it determines that your web site quality falls below the standard set by other web sites in the marketplace, fails to deliver any minimum number of impressions established by RCM from time to time, or if you breach any provision of this Agreement. Upon the termination of this Agreement, you will immediately remove the Code from your web site. You will be paid, on the same payment cycle described in Section 2.3, all amounts due up to the time of termination. 6. Your Representations and Warranties You represent and warrant that: 6.1 You are the owner of all right, title and interest in, or are validly licensed to use, the entire contents and subject matter and Intellectual Property Rights (as defined below) contained in or displayed on your web site and the domain name(s) for the web site. 6.2 Your web site is free of any "worm", "virus" or other destructive programming or device that could impair or injure any data, computer system, software, property, person or entity. 6.3 The web site does not violate any applicable laws, rules or regulations, including without limitation, false, deceptive or comparative advertising laws; sweepstakes, gaming and gambling laws; competition laws; laws relating to children and advertising to children, laws relating to adult content; and criminal laws. 6.4 The web site does not contain any misrepresentation, or any content that is defamatory or violates any rights of privacy or publicity. 6.5 The web site does not and will not infringe any Intellectual Property Rights or other proprietary rights. 6.6 You do not and will not engage in, promote or facilitate illegal or legally questionable activities such as pirating and hacking. 6.7 You have the right to grant to RCM the right to transmit to, display and track the Advertising on your web site. For the purposes of this Agreement, "Intellectual Property Rights" means all world-wide intellectual and industrial property rights, whether existing now or in the future, including without limitation copyrights, trade-marks, patents, inventions, industrial designs, trade secrets and information of a confidential nature, and all registrations and applications therefor. 7. Disclaimers, Exclusions and Limitations 7.1 Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITATION OF ANY OF THE FORGOING, RCM MAKES NO REPRESENTATION OR WARRANTY THAT THE ADVERTISING (OR THE PROVISION OF THE ADVERTISING) WILL BE UNINTERRUPTED OR ERROR-FREE. 7.2 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. IN NO EVENT SHALL RCM'S AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNT OF THE PAYMENTS MADE TO YOU HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO A PARTY'S INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION 8. 8. Indemnification You hereby agree to indemnify, defend and hold harmless RCM and its affiliates and advertisers, and their respective officers, directors, employees, agents and representatives from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable legal fees) that may at any time be incurred by any of them by reason of any claims, suits, actions or proceedings, that are based on, arise from or relate to any breach by you of any provision of Section 3 or 6 of this Agreement. 9. Miscellaneous 9.1 Independent Contractors. You and RCM are independent contractors. Neither party is an agent or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on the behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party. 9.2 Entire Agreement. This Agreement sets forth the entire agreement between the parties and supercedes prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter contained herein. This Agreement may be modified, supplemented or amended only by mutual agreement of the parties in writing. 9.3 Assignment. You may not assign or otherwise transfer, whether voluntarily or by operator of law, any rights or obligations under this Agreement without the prior written consent of RCM. This Agreement will inure to the benefit and bind the parties hereto and their respective successors and permitted assigns. 9.4 Arbitration and Governing Law. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of the arbitration will be New York County, New York. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). This Agreement shall be construed and interpreted according to the laws of the State of New York without reference to conflicts of law provisions. 9.5 Notice. All written notices between the parties will given by: personal delivery; certified or registered mail (return receipt requested, postage prepaid); or electronic mail via the Internet (with copy sent by certified or registered mail) to the addresses specified in the registration process. Unless otherwise provided herein, all notices shall be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) as evidenced by appropriate receipts, electronic answer-back or the like. 9.6 Waiver/ Severability. The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will remain in full force and effect. 9.7 Force Majeure. Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of such party. 9.8 RCM Policies. You acknowledge and agree that you will read and agree to abide by the terms of RCM's Privacy Policy, User Policy and such other policies that may exist from time to time, all of which are or will be deemed to be hereby incorporated by reference into this Agreement. 9.9 Survival. The following Sections shall survive the expiration or termination of this Agreement: 3.5, 3.6, 3.7, 4, 5.2, 6, 7, 8 and 9.