Advertising and Search Services Syndication Agreement

        This Advertising Services and Search Services Syndication Agreement (the “Agreement”) is made by and between Spacejet LLC., a Delaware corporation (“Spacejet”), and the customer identified below (the “Customer”).

        WHEREAS Spacejet is the owner or licensee of certain Advertising Services and Search Services, and;

        WHEREAS Customer desires to implement such Advertising Services or Search Services on certain Websites and applications.

        NOW THEREFORE, Spacejet and Customer agree as follows:

  1. DEFINITIONS.
    1. Capitalized terms used herein shall have the meanings ascribed to them in the body of this Agreement, or as defined below. Terms other than those defined below shall be given their plain English meaning and terms of art having specialized meanings in the industry shall be construed in accordance with industry standards. Unless the context otherwise requires, words importing the singular include the plural and vice-versa.
      1. “Advertising Services” means the, Sponsored Link and Other Advertising services that are provided by Spacejet to Site(s) (defined below) pursuant to this Agreement, as indicated in the Insertion Order “IO”.
      2. “Spacejet Services” means the Advertising Services and Search Services provided by Spacejet to Customer under this Agreement as indicated in the Insertion Order “IO”.
      3. “Spacejet Sponsored Link” means Spacejet’s proprietary Sponsored Links or JavaScript products.
      4. “Spacejet Web Search” means the Spacejet algorithmic search service delivered hereunder by Spacejet and generated by its Spacejet search engine.
      5. “Customer Application” means any application, plug-in, helper, component or other code that (a) is downloaded or installed on a user’s computer (examples of which include those that provide browser helper objects, instant messaging, chat, email, data, file viewing, media playing, file sharing, games, internet navigation, or search), (b) is owned or operated by Customer and (c) accesses the Spacejet Services.
      6. “Domain” means all Web pages presented to the user as, and commonly understood to be part of, a single Web site. In most cases, a U.S. Domain will include all Web pages with URLs that share the same second-level (and top-level) domain name system (DNS) identifiers (e.g., all Web pages with URLs that begin: http://Spacejetmedia.com or http://www.Spacejet.com) and an international Domain will include all Web pages with URLs that share the same third-level (and second- and top-level) DNS identifiers.
      7. “Effective Date” means the date this Agreement is signed by the Customer.
      8. “End User” means the user of a Site.
      9. “Image Search” means the Spacejet proprietary image search product.
      10. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law and any and all other proprietary rights.
      11. “One-Click Page” means a 404 Error Web page or DNS error Web page generated in response to an incorrect URL being entered into the address bar or a Web page generated in response to a correct URL being entered into the address bar.
      12. “Other Advertising” means all other Spacejet programs or products included as Advertising Services hereunder, if and as indicated in the Insertion Order “IO.”
      13. “Query” means a search query that originates directly from an End User and includes, without limitation, (a) each query entered directly by an End User into a search box (whether such box appears on a Web page or is included in a Customer Application); (b) each query otherwise submitted by an End User through use of a Customer Application; and (c) each click by an End User on a Zoom Search link.
      14. “Reply Page” means a Web page displayed in response to a Query that is not a One-Click Page.
      15. “Search Services” means the Spacejet Web Search (defined below), Image Search and Zoom Search services provided by Spacejet to the Site(s) pursuant to this Agreement, as indicated in  in the Insertion Order “IO” attached hereto.
      16. “Site(s)” means, collectively, (a) all web pages on the Domain(s) (b) all web pages on domains owned and operated by Customer, (c) all web pages on domains included in the Customer portfolio, (d) all web pages and domains currently under agreement for ad services by Customer.(including any other domains that redirect users to such Domain and also including any successor Domain(s) thereto); (b) all Web pages of Domain(s) owned or controlled by Customer, which Domain(s) Customer desires to include hereunder and which is approved in advance by Spacejet (excluding any Domain with a URL that includes any trademarks that are not owned by the owner of such domain, and any Domain which includes child pornography, hate-related or gambling-related content); (c) all Customer Applications approved by Spacejet in writing; (d) all Web pages controlled by Customer that are displayed by action of any Customer Application approved by Spacejet in writing; and (e) all Reply Pages displayed in response to Queries received from any of the foregoing Web pages and Customer Applications. Unless otherwise agreed by Spacejet in writing, Customer shall own or control each Site and each Reply Page, and Spacejet shall not be required to pay Customer with respect to any Queries from any Site that is not owned or controlled by Customer or Queries that resolve to any Reply Page that is not owned and controlled by Customer.
      17. “Spam Queries or Clicks” means those queries or clicks on Advertising Services for which: (a) Spacejet does not receive payment from an advertiser or third party provider for any reason whatsoever, be it because such queries or clicks are determined to be fraudulent or automated or for any other reason; or (b) Spacejet is required to provide a refund or credit to an advertiser or third- party provider following receipt of payment from such advertiser or third party provider due to the determination that the queries or clicks for which Spacejet has received payment are fraudulent or automated.
      18. “Sponsored Links” means a compensated advertising listing that includes title, description, advertiser URL (defined below) and linking mechanism, and that may include an image, as may be updated by Spacejet from time to time. Sponsored Links include Spacejet Sponsored Links and Third Party Sponsored Links.
      19. “Term” shall have the meaning set forth in Section 8.
      20. “Third Party Sponsored Link” means Sponsored Links provided to Spacejet by a third party.
      21. “Trademark(s)” means the Spacejet trademarks, logos or service marks..
      22. “URL” means a uniform resource locator for documents or other resources on the Internet
      23. “Web page” means any page on the World Wide Web and any other content accessible over the Internet.
      24. “Zoom Search” means the Spacejet service by which alternative search terms related to a prior search are determined algorithmically by Spacejet and presented to End Users. (Zoom Search is included within “Search Services” only if so indicated in the Insertion Order “IO”.
    2. Customer or any of its affiliates or affiliate sites will not display the ads via exit pops, pop under, pop up, and only on the static page of the domain. For Thank-You-Offer ads, the user will only see ads on the confirmation page after the user completes the validation process. The user will not be forced to the confirmation page in any way and the user will only be taken to the Thank You/Confirmation page ad in the same window. Customer cannot open a new tab or window with our ads, only on the static homepage or once the user completes all fields in the form with valid information.
    3. Company or any of its affiliates, or affiliate sites will not display the ads via exit pops, pop under, pop up, and only on the static page after a verified user takes completed and validated action. The user will only see the ads on the confirmation page after the user completes the validation process. The user will not be forced to the confirmation page in anyway and the user will only be taken to the thank you/confirmation page ad in the same window. Company cannot open a new tab or window with our ads, only once the user completes all fields in the form with valid information.
    4. If any of the requirements in this Agreement are not met in any way, Spacejet has the right to hold all payments due to Customer or any of its affiliates.
    5. Pop up, under and interstitial ads are allowed only if approved by Spacejet in writing before implementing on the Customer’s website.

  1. ADVERTISING SERVICES.
    1. Obligation to Send all Queries to Spacejet and to Display the Advertising Services. Commencing on the Effective Date: (a) Customer shall transmit allocated Queries from the Sites to Spacejet; (b) for each Query received by Spacejet from Customer, Spacejet or a third party ad serving company shall process such Query using its proprietary technology and transmit the Advertising Services identified  in the Insertion Order “IO” to the applicable Site, and; (c) Customer shall display all Advertising Services returned by Spacejet on the applicable Site.
    2. Implementation. Customer shall implement code to the Site(s) and to all Reply Pages using the Advertising Services tags (only one (1) tracking tag shall be provided by Spacejet for Search Services and Advertising Services) provided by Spacejet (or a third-party ad-serving company designated by Spacejet) to enable Spacejet (or a third party ad serving company) to serve the advertisements to the Site(s). Customer agrees to maintain and update such Advertising Services tags as modified from time to time by Spacejet (or by such third-party ad serving company). All code, methods and know-how shared with Customer by Spacejet for purposes of implementing the Advertising Services shall be “Confidential Information” subject to Section 9 of this Agreement.
    3. Restrictions. Customer shall not engage in any of the following and shall not permit third parties to engage in any of the following (The restrictions of this subsection may be updated by Spacejet on fourteen (14) days written notice).
      1. Generation or submission of Spam Queries or Clicks, including without limitation auto-generation of queries or clicks or any other click scheme with respect to any page that displays Advertising Services or modification of any Query;
      2. Modification, commingling or alteration of, interspersing other content between, or reordering the elements supplied by the Advertising Services;
      3. Redirecting any End User away from any Reply Page or any Web page accessed by an End User after clicking on any element of the Advertising Services (an “Advertiser Page”);
      4. Providing a version of the Advertiser Page different from the page an End User would access by going directly to the Advertiser Page;
      5. Displaying graphical or text advertisements in any form (including but not limited to pop-up or pop-under windows, expanding buttons and animation) that block or otherwise inhibit the full and complete display of any Advertising Services to End Users;
      6. Displaying content from Spacejet Services on any page rendered within a Customer Application;
      7. Modifying, adapting, translating, preparing derivative works from, decompiling, reverse engineering, disassembling or otherwise attempting to derive source code from the Advertising Services, including, without limitation, any intellectual property, technology, software, materials or documentation of Spacejet or its third-party suppliers;
      8. Crawling, indexing or in any non-transitory manner storing or caching information obtained from the Advertising Services;
      9. Transferring or selling any Advertising Services or access thereto in violation of this Agreement;
      10. Framing any Reply Page or any Advertiser Page;
      11. Masking the linking URL on Sponsored Links;
      12. Except as expressly provided in this Agreement, displaying any results set(s) to any third party other than End Users of a Site;
      13. Displaying on a Site any hate-related, gambling-related or violent content or any other material, products or services that violate or encourage conduct that violate or encourage conduct that would violate applicable laws or any third-party rights, except for content, material, products or services that (a) display search results or (b) are provided by End Users of the Site;
      14. Displaying on a Site or any portion of a Site any pornographic, adult or mature content in response to a non-adult-related Query; displaying any other pornographic, adult or mature content on any other Web page of any Site that receives Advertising Services or Search Services without the prior written consent of Spacejet; displaying any child pornography on any portion of a Site;
      15. Implementing or allowing so-called “drive-by downloads” to occur from any Web page in any Site that receives Advertising Services or Search Services (i.e. implementing or allowing any software installation process or procedure to be initiated as the direct or indirect result of a Web page view at a Domain that receives Advertising Services unless the End User has given his or her informed consent to the download immediately prior to the initiation of the process or procedure);
      16. Distributing, or allowing to be distributed, from any Web page in any Site that receives Advertising Services or Search Services, so-called Spyware (i.e. any application that covertly gathers user data and transmits it through the user’s Internet connection other than information (i) reasonably gathered in connection with services or information provided by the software provider to such users, or (ii) that is not associated with personally identifiable information);
      17. Distributing, or allowing to be distributed, from any Web page in any Site that receives Advertising Services or Search Services, so-called Adware (i.e. any application that (a) causes advertising to pop-up as a new window (over or under the active window) on the user’s computer either randomly or based on the user’s online activity (other than advertisements a person serves to visitors to such person’s own Domains while those customers are visiting or exiting such Domains) or (b) is used to distribute Spyware);
      18. Otherwise engaging in conduct that is malicious, deceptive or illegal on or from any Web page in any Domain that receives Advertising Services or Search Services;
      19. Call the Spacejet Services multiple times in response to single Query (e.g., Customer may not call the Spacejet Services multiple times in order to load a page for AJAX);
      20. Direct an end user to the Sites other than through an address bar query submitted by an end user that matches the URL of the applicable Site (e.g., through SEO or SEM);
      21. Encouraging or requiring End Users, with or without their knowledge, to click on the Advertising Services by offering incentives or any other means that are manipulative, deceptive, malicious or fraudulent; or
      22. Display Sponsored Links on a One-Click Page.
    4. Advertising Services License. Subject to Customer’s compliance with the terms of this Agreement, Spacejet grants to Customer a non-exclusive and non-sublicensable license during the Term to: (a) use the Advertising Services solely for the purpose of communicating information between the Site(s) and Spacejet; and (b) display the results of the Advertising Services for the purpose of fulfilling Customers obligations under the Agreement.
    5. Additional Sites or Customer Applications/Removal of Sites. Customer shall not submit any Query under this Agreement that did not arise from one of the Sites. Customer must submit all queries from a Site to Spacejet. Customer may modify the list of URLs or Customer Applications set forth in the definition of Site(s) above, or add additional URLs or Customer Applications for display of the Advertising Services so long as such URLs or Customer Applications conform to all of the provisions of this Agreement; provided, however, that Spacejet reserves the right, at its option and in its sole discretion, to reject any of the proposed URLs, and/or Customer Applications and Sites and to discontinue delivering Advertising Services to any of the Site(s) for any reason. Customer may also remove a Domain, URL or Customer Application from the list of Sites included hereunder.
    6. Other Advertising. At Spacejet’s option, Spacejet will provide contextual advertising for display on the Site(s). Contextual advertising may only be displayed on One-Click Pages and shall be displayed prominently when provided.
  2. SEARCH SERVICES.
    1. Commencement. On the Effective Date or within five (5) business days of receiving the XML feed from Spacejet, Customer will send all Queries from each Site to Spacejet and display the Search Services. Spacejet shall provide Search Services to Customer on a real-time basis in XML format via HTTP protocol or other means as the parties may agree upon from time to time.
    2. Implementation of Technical Specifications. On the Effective Date, Customer shall implement Spacejet code to the Site(s) to permit display of the Search Services. Customer shall (a) correctly implement the Spacejet technical specifications concerning correct use of XML protocol arguments and correct handling of optional or new result fields set forth by Spacejet; (b) ensure Customer’s DNS client implementation correctly observes the DNS TTL values returned by Spacejet’ DNS servers; (c) send End User queries to the hostname provided to Customer by Spacejet and (d) ensure that Customer’s client implementation repeats the DNS lookups at least every five (5) seconds in order to pick up any changes. For each Query sent to Spacejet, Customer shall include the End User IP Address and user agent. All code, methods and know-how shared with Customer by Spacejet for purposes of implementing the Search Services shall be “Confidential Information” subject to Section 9 of this Agreement.
    3. User Interface. At Spacejet’s discretion, Customer shall, at the point where the Spacejet Web Search results begin on the Reply Page and within all Customer Applications, attribute the Search Services with the Spacejet logo and the text “Powered by Spacejet” or such other branding as is provided by Spacejet and agreed upon by Customer from time to time.  The search box shall be above-the-fold (meaning visible on the first screen view of the Reply Page without the need to scroll down, for any computer monitor settings) on both One-Click Pages and Reply Pages and the Spacejet.com logo shall be adjacent to each search box.
    4. Restrictions.
      1. Customer shall use the Search Services in real-time only, by issuing a Query to the Search Service each time, and shall not cache or otherwise store any search results, or portions of those results, delivered by Spacejet.
      2. Customer shall not use the Search Services in association with any material that is pornographic, obscene, illegal, gambling-related, defamatory, or violent or in any publication or Web page or site which contains this type of material. For the avoidance of doubt, the domain name of a Site shall not be material subject to the restrictions of this Section 3.4.2.
      3. Customer shall not modify, alter, or reorder the Search Services results. Customer may not call the Spacejet Services multiple times in response to single Query (e.g., Customer may not call the Spacejet Services multiple times in order to load a page for AJAX).
    5. Search Services License. Subject to Customer’s compliance with the terms of this Agreement, Spacejet grants to Customer a non-exclusive and non-sublicensable license during the Term to: (a) use the Search Services solely for the purpose of communicating information between the Site(s) and Spacejet; and (b) display the results of the Search Services for the purpose of fulfilling its obligations under the Agreement.
    6. Additional Sites/Removal of Site. Customer shall not submit any Query under this Agreement that did not arise from one of the Sites. Customer must submit all queries from a Site to Spacejet. Customer may modify the list of URLs or Customer Applications set forth in the definition of Site(s) above, or add additional URLs or Customer Applications for display of the Search Services so long as such URLs or Customer Applications conform to all of the provisions of this Agreement; provided, however, that Spacejet reserves the right, at its option and in its sole discretion, to reject any of the proposed URLs, and/or Customer Applications and Sites and to discontinue delivering Search Services to any of the Site(s) for any reason. Customer may also remove a Domain, URL or Customer Application from the list of Sites included hereunder.
    7. Query Volume. Customer agrees to provide Spacejet with at least ten (10) business days’ written notice of any increase in Query volume equal to or greater than ten percent (10%) of the Query volume at the time of such notification.
  1. NON-EXCLUSIVITY. Customer acknowledges and agrees that the rights granted to it under this Agreement are non-exclusive and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit Spacejet from participating in similar business arrangements as those described herein.
  2. OWNERSHIP.
    1. Customer and/or its licensors own all Intellectual Property Rights in and to any editorial, text, graphic, audiovisual, and other content that is served to End Users of the Site(s) and that is not provided by Spacejet. Spacejet shall not acquire any right, title or interest in or to such content, except as provided herein.
    2. Spacejet shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to the Spacejet Services and any derivative works or enhancements thereof, including but not limited to, all software, technology, materials, guidelines, and documentation, and the results served. Customer shall not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in this Agreement. Spacejet shall own all right, title and interest in and to all information and data it collects and receives. Spacejet grants no implied license to its intellectual property (including without limitation patents) or that of Spacejet’ third-party suppliers, and all rights not expressly granted in this Agreement are reserved by Spacejet.
    3. Customer shall not, and shall not allow any third party to: (a) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, from the Spacejet Services, or any other Spacejet technology (including any third-party supplier technology included in the Services); (b) remove, obscure, or alter any copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Spacejet Services; (c) crawl, index or in any non-transitory manner store or cache information obtained from the Spacejet Services; or (d) transfer, sell, lease, lend, disclose, or use for any other unauthorized purposes any of the Spacejet Services or access thereto.
    4. All rights not expressly granted by Spacejet in this Agreement are reserved.
  1. PAYMENT AND RECORDS. Revenue share and payment between Spacejet and Customer shall be as set forth in the Insertion Order “IO” attached. All payment is conditioned upon payment being received by Spacejet. Customer shall only receive payment after Spacejet receives payment.
  2. TRADEMARK.
    1. Spacejet Approval. Prior to Customer’s use of the Trademarks as permitted hereunder, Customer will submit to Spacejet a proof showing the use of the Trademark. Spacejet shall have the right to approve the use and quality of reproduction of the Trademarks. Customer shall comply with Spacejet’s requests to change or cease use of the Trademarks. For the avoidance of doubt, Spacejet grants no license to any trademark or trade name of its third-party Sponsored Link supplier, and Customer agrees not to use such trademark or trade name in connection with the Spacejet Services.
    2. Spacejet Trademark License. Subject to Customer’s compliance with the terms of this Agreement, Spacejet grants Customer a limited, non-exclusive, non-transferable and non-sublicensable right to use the Trademarks as described herein.
    3. Restrictions. Customer agrees it will not use the Trademarks: (a) in association with any material that is pornographic, obscene, illegal, defamatory, violent, or otherwise objectionable (including without limitation using the Trademarks in any advertisements that contain such material or using the Trademarks in any publications or Web pages that contain such material); or (b) in any manner that reflects poorly on or may damage the goodwill associated with or reputation of Spacejet, the Trademarks, or Spacejet’ products or services. Furthermore, Customer shall not use any button with the word “Spacejet” on the Site(s) or in any Customer Application without prior written approval of Spacejet.
    4. Ownership. Spacejet owns, and will retain ownership of, all Trademarks and no ownership interest is transferred by this Agreement or otherwise. All goodwill in and to the Trademarks shall inure to Spacejet’ benefit.
    5. Customer’s Trademark License. Customer grants to Spacejet a non-exclusive and non-sublicenseable license during the Term to include Customer’s name and logo on its website, in advertising sales brochures and other marketing materials and similar uses related to Customer’s use of the Spacejet Services.
    6. Miscellaneous Trademark Provisions. Except as set forth in this Section 7, nothing in the Agreement shall be deemed to grant to one party any right, title or interest in or to the other party’s trademarks or brand features. Any use of the other party’s trademarks or brand features shall inure to the benefit of the owner, including any goodwill associated therewith. At no time shall one party challenge or assist others in challenging the trademarks or brand features of the other party or the registration thereof by the other party, nor shall either party attempt to register any trademark, brand feature, or domain name that is confusingly similar to those of the other party.
  3. TERM.
    1. Term and Auto-renewal. This Agreement will commence upon the Effective Date and continue for three (3) years from the Effective Date. Thereafter, the Agreement will automatically renew for successive one-year periods, unless one party provides written notice to the other of non-renewal no later than ninety (90) days before the beginning of the renewal term.
    2. Material Breach. This Agreement may be terminated if either party fails to cure any material breach of this Agreement within fourteen (14) days after such breach is conveyed in reasonable detail in writing to the other party.
    3. Immediate Termination for Certain Breaches. Spacejet may suspend provision of the Spacejet Services and/or terminate the Agreement in whole or in part immediately upon written notice if Customer (a) attempts to modify, reverse engineer, adapt, translate, prepare derivative works from, decompile, disassemble or otherwise attempts to derive source code from any of the Spacejet Services; (b) otherwise breaches the intellectual property rights of Spacejet or its third party suppliers; (c) breaches the confidentiality provisions of Section 9; (d) breaches the restrictions set forth in subsections 2.3 (user interface), 2.4 (restrictions), 2.7 (additional sites) or any specified Guidelines; (e) if the use of the Spacejet Services by Customer disparages Spacejet or its third-party suppliers; or (f) if Spacejet, in its sole discretion, determines that traffic from the Site(s) has been produced by fraudulent means.
  4. Payment Terms:
    1. Revenue Share.
      1. Third Party Sponsored Links. With respect to each calendar month during the Term, Spacejet agrees to pay Customer a percentage of the Third Party Sponsored Link Net Revenue and received by Spacejet for Third Party Sponsored Links delivered to the Site(s) based on the revenue share schedule set as defined in the Insertion Order (IO):
      2. “Third Party Sponsored Link Net Revenue” shall equal gross revenue actually received by Spacejet for the Third Party Sponsored Links delivered to the Site(s), less adjustments for bad debt, chargebacks, commissions, direct cost charges to Spacejet by third party providers, costs of provided the Search Services, discounts allowed, refunds and administrative fees.
      3. Spacejet Sponsored Links. With respect to each calendar month during the Term, Spacejet agrees to pay Customer a percentage of the Spacejet Sponsored Link Net Revenue received by Spacejet for Spacejet Sponsored Links delivered to the Site(s) based on the revenue share schedule as defined in the Insertion Order (IO)
      4. “Spacejet Sponsored Link Net Revenue” shall equal gross revenue actually received by Spacejet for the Spacejet Sponsored Links delivered to the Site(s), less adjustments for bad debt, chargebacks, commissions, direct cost charges to Spacejet by third party providers, costs of providing the Search Services, discounts allowed, refunds and administrative fees.
    2. Payments. Spacejet will remit revenue share payments to Customer in the manner described below for the gross revenue received by Spacejet. Payment(s) will be due if and only if the revenue is received by Spacejet. Within forty five (45) days after the end of the calendar month in which Spacejet received the gross revenue for PPC (Pay-Per-Click).
    3. Payment Threshold. To reduce administrative costs, the parties agree that Spacejet shall not be required to make payment to Customer until such time that the amount owed to Customer equals or exceeds $100.00.
    4. Report. Spacejet agrees to provide Customer with continuous access to its online reporting system, which shall provide performance metrics, including reasonable estimates of revenues owed to Customer.
    5. Fraudulent Queries. Spacejet shall not be obligated to remit payment for (and shall be entitled to a refund with respect to) revenue from Advertising Services generated by fraudulent means, including, but not limited to, Spam Queries or Clicks. Fraudulent queries, including Spam Queries or Clicks, shall be tracked and determined by Spacejet. Spacejet reserves the right to withhold any payments with respect to revenue from Advertising Services generated by fraudulent means at any time and for any length of time during the Term.
    6. Payment upon Termination. Upon any termination or expiration, Spacejet shall pay Customer all amounts due prior to such termination under this Section within forty five (45) days after such termination.
  5. SEARCH SERVICES:
    1. Free of Charge. For so long as Customer continues to implement the Advertising Services pursuant to this Agreement during the Term, Spacejet shall supply the Search Services free of charge; provided, that Spacejet’s costs of providing the Search Services shall be deducted from the gross revenue received by Spacejet to calculate net revenue.
  6. CONFIDENTIALITY.
    1. Confidential Information. Each party understands that the other party has disclosed or may disclose information of a confidential nature including, without limitation, know-how, formulas, processes, ideas, inventions, schematics and other technical, business, financial and product development plans, forecasts, strategies and information (“Confidential Information”). In addition, “Confidential Information” includes all information (such as Spacejet source code) expressly designated as such in this Agreement. Any other Confidential Information disclosed in tangible form by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) shall be marked “confidential” or “proprietary” (or words of similar meaning) and all Confidential Information disclosed orally or otherwise in intangible form by the Disclosing Party shall be designated as confidential or proprietary at the time of disclosure. Notwithstanding the foregoing, information that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used, shall be Confidential Information for purposes of this Section.
    2. Disclosure and Use. The Receiving Party agrees (a) to hold the Disclosing Party’s Confidential Information in confidence and to take all necessary precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials but in no event less than a reasonable standard of care); (b) not to divulge any such Confidential Information or any information derived it to any person, except employees, attorneys and other independent contractors in each case who are under an obligation of confidentiality and restricted use who need to know such Confidential Information for purposes authorized under this Agreement; (c) not to make any use whatsoever at any time of such Confidential Information except as authorized under this Agreement; and (d) not to remove or export any such Confidential Information from the country of the Receiving Party except as may be allowed by applicable export laws. The foregoing obligations shall survive for a period of five (5) years from the date of disclosure of the Confidential Information, except in the case of source code, in which case the foregoing obligations shall be perpetual.
    3. Exceptions. Without granting any right or license, the Disclosing Party agrees that the foregoing restrictions of subsection 9.2 shall not apply with respect to information that the Receiving Party can establish (a) is in the public domain and available at the time of disclosure or which thereafter enters the public domain and is available through no improper action or inaction by the Receiving Party or any affiliate, agent or employee; (b) was in its possession or known to it prior to receipt from the Disclosing Party without restriction; (c) was rightfully disclosed to it by another person without restriction; (d) is independently developed by the Receiving Party without use of such Confidential Information; (e) is required to be disclosed pursuant to any statutory or regulatory authority, provided the Disclosing Party is given prompt notice of such requirement and the scope of such disclosure is limited to the extent possible; or (f) is required to be disclosed by a court order, provided the Disclosing Party is given prompt notice of such order and provided the opportunity to contest it.
    4. Return of Confidential Information. Upon the termination or expiration of this Agreement, the Receiving Party shall destroy, or return to the Disclosing Party, all tangible copies of the Disclosing Party’s Confidential Information and erase all copies in electronic form.
    5. Confidentiality of Agreement. Each party agrees that the terms of this Agreement shall be deemed Confidential Information of the other party, provided that in addition to the permitted disclosures under subsections 9.2 and 9.3, either party may disclose the terms of this Agreement (a) if required to do so by law or generally accepted accounting principles; (b) as required to assert its rights hereunder; and (c) to its own directors, employees, attorneys, accountants, and other advisors on a “need to know” basis and under an obligation of confidentiality no less stringent than set forth herein. Each party agrees that the Disclosing Party will be given prompt notice of any disclosure made pursuant to clause (a) or (b) above, and that any such disclosure shall be limited to the extent possible.
  1. LIMITED WARRANTY AND DISCLAIMER.THE Spacejet SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND Spacejet EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. Spacejet DOES NOT WARRANT THAT THE Spacejet SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER REPRESENTS AND WARRANTS THAT IT OWNS ALL RIGHTS AND INTEREST IN THE SITE.
  2. LIMITATION OF LIABILITY. NEITHER PARTY NOR Spacejet’S THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR BREACHES OF SECTION 9 (CONFIDENTIALITY) OR A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT EXCEED AMOUNTS PAID BY Spacejet TO CUSTOMER UNDER THIS AGREEMENT WITHIN THE TWELVE MONTHS PRECEDING SUCH CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE; THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
  3. INDEMNIFICATION.
    1. Spacejet agrees to indemnify, defend and hold Customer harmless from and against any and all liability, loss, damage, claim, cause of action or other cost (including, without limitation reasonable legal fees and expenses), arising out of or related to any third-party claim alleging infringement or misappropriation of any U.S. patent, copyright or trademark by the Advertising Services. The foregoing indemnification shall not apply to (a) Advertising Services that have been altered, modified, or tampered with after delivery of the Advertising Services to the Customer to the extent such claim is caused by such alteration, modification or tampering; (b) Advertising Services which Spacejet has previously identified as illegal, and for which Spacejet has made commercially reasonable efforts to remove from the Advertising Services service; or (c) the Sponsored Links. Customer agrees to defend, indemnify and hold Spacejet harmless from and against any and all liability, loss, damage, claim, cause of action or other cost (including, without limitation reasonable legal fees and expenses), arising out of or related to any third-party claim alleging infringement or misappropriation of any U.S. patent, copyright or trademark produced by (i) Customer’s altering of the Advertising Services; (ii) Customer’s use of the Advertising Services outside of the scope of this Agreement; (iii) any aspect of the Site (excluding Advertising Services); or (iv) any breach by Customer of Section 2.5 or Section 3.4.
    2. The indemnified party shall promptly notify the indemnifying party in writing of any such claim and promptly tender the control of the defense and settlement of any such claim to the indemnifying party at the indemnifying party’s expense; provided that failure to give prompt notice will not relieve the indemnifying party from its indemnification obligations hereunder, except to the extent of liabilities that would have been avoided had prompt notice been given; and provided further, however, that the indemnifying party shall not settle any such claim in a manner that imposes any non-indemnified costs or otherwise adversely affects the indemnified party’s rights without the indemnified party’s prior written consent (which shall not be unreasonably refused or delayed). The indemnified party shall cooperate with the indemnifying party, at the indemnifying party’s expense, in defending or settling such claim. The indemnified party may join in defense with counsel of its own choice at its own expense.
    3. The indemnity this Section 12 sets forth the indemnifying party’s sole and exclusive obligation, and the indemnified party’s sole and exclusive remedy, for any claims of intellectual property infringement.
  1. PUBLICITY. Neither party shall make any public statement nor issue any press release with regard to this Agreement or the subject matter hereof, without the prior written consent of the other party hereto.
  2. TAXES. Customer agrees to pay, and to indemnify and hold Spacejet harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on Spacejet’s income, as well as the collection or withholding thereof, including penalties and interest, and all government permit or license fees and all customs and similar fees levied upon the delivery of the Spacejet Services, and any costs associated with the collection of any of the foregoing items. In the event that Spacejet is required to withhold taxes imposed upon Customer for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which the Spacejet Services are distributed, then such payments will be made by Spacejet on behalf of Customer by deducting them from the payment then due to Customer and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted appropriately. Customer agrees to cooperate with and provide all necessary documentation to Spacejet with respect to the withholding of such taxes. Spacejet shall be responsible for and pay taxes based on its income.
  3. MISCELLANEOUS.
    1. Independent Contractors. Each party is an independent contractor of the other and neither is an employee, agent, partner or joint venturer of the other.
    2. Assignment. This Agreement is not assignable by either party without the prior written approval of the other party. Notwithstanding the foregoing, Spacejet may assign this Agreement without consent to a successor in interest, any affiliated entity or in connection with any merger, consolidation, any sale of all or substantially all of Spacejet’ assets or any other transaction in which more than fifty (50%) percent of its voting securities are transferred.
    3. Notice. Any notice, report, approval or consent required or permitted under this agreement will be in writing to the address specified in the signature block below, or other address as may be updated by a party in writing from time to time.
    4. Governing Law and Venue. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement will be commenced in a federal court in state court in Salt Lake City, Utah, and each party irrevocably submits to the jurisdiction and venue of these courts. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
    5. Remedies and Injunctive Relief. Each party agrees that, in addition to any other remedies to which the other party may be legally entitled, such party shall have the right to seek immediate injunctive relief in the event of a breach of this Agreement by the other party or any of its officers, employees, consultants or other agents.  The prevailing party shall be entitled to attorney fees and costs.
    6. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    7. Headings and Presumptions. The headings contained in this Agreement are for reference and explanatory purposes only and will not affect in any way the meaning or interpretation of this Agreement. As this Agreement is a negotiated agreement, there will be no presumption against any party on the ground that such party was responsible for preparing this Agreement or any part of it.
    8. Complete Agreement, Waiver, and Modification. The parties agree that this Agreement and the Insertion Order “IO”, which are incorporated into this Agreement by this reference, constitute the complete and exclusive statement of the mutual understanding of the parties, and supersede and cancel all previous written and oral agreements and communications relating to the subject matter of this Agreement. No waiver, modification or amendment of any provision of this Agreement will be binding against a party unless it is in writing and signed by a duly authorized representative of such party. No such waiver of a breach hereof will be deemed to constitute a waiver of any other breach, whether of a similar or dissimilar nature.
    9. Survival. Sections 5, 7.4, 9 through 12, 14, and 15 shall survive termination of the Agreement.

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