1. Definitions.

1.1 "Affiliate Product Program" means a specific program offered by a Microsoft product group for the payment of Referral Fees for a specified Conversion Event, as such terms are defined below. Affiliate may choose through the application process to participate in one or more Affiliate Product Programs.

1.2 "Affiliate Web Site" or "Affiliate's Web Site" means the Affiliate Web Site(s) that will be participating in the Program as provided in Affiliate's application and approved by Microsoft.

1.3 "Affiliated Entity" is any entity that directly or indirectly controls, is controlled by or is under common control with Microsoft or its contractor, currently Kowabunga Marketing, Inc. For purposes of this definition, "control" means direct or indirect (e.g., through any number of successive tiers) ownership of: (a) more than fifty percent (50%) of the outstanding shares having the right to vote for the election of directors or other managing authority of the subject entity; or (b) in the case of an entity which does not have outstanding shares (e.g. a partnership, joint venture or unincorporated association), more than fifty percent (50%) of the ownership interests having the right to make decisions for the subject entity.

1.4 "Conversion Event" means the specific action described in the documentation for the applicable Affiliate Product Program that will result in the payment of a Referral Fee from Microsoft to Affiliate. Without limitation, a Conversion Event does not include any fraudulent, duplicative, incomplete, or otherwise improper activity as determined by Microsoft in its sole discretion..

1.5 "End User" means a visitor to Affiliate's Web Site who may participate in a Conversion Event as described for a particular Affiliate Product Program.

1.6 "Links" means the applicable links for a specific Affiliate Product Program that Microsoft may provide to Affiliate to enable End Users to navigate to a Microsoft Property, all as described in the Program Descriptions for a specific Affiliate Product Program.

1.7 "Microsoft Content" means banners, text, links, datafeeds, graphics and other content provided by Microsoft for display on Affiliate's Web Site through the use of a Link. Microsoft Content may contain "cookies".

1.8 "Microsoft Property" or "Microsoft Properties" means the web sites, web pages and services owned or operated by Microsoft and any successor, similar or replacement versions of such web sites or services, regardless of whether or not marketed or promoted under the same name, and accessible via various Internet-enabled devices, including but not limited to personal computers, mobiles devices and televisions. At Microsoft's discretion, "Microsoft Properties" may also include: (i) any international or non-English language versions of these web sites or services; (ii) versions of these web sites, web pages or services that are co-branded and distributed either by Microsoft or a third party; and (iii) Microsoft software applications, services or tools, provided such software application, service or tool contains a link back to one of the foregoing Microsoft Properties.

1.9 "Program Description(s)" means a detailed description of the applicable Affiliate Product Program, including but not limited to a description of the applicable Conversion Event, the Referral Fee, and requirements for Affiliate's participation.

1.10 "Referral Fee" means the fee due from Microsoft to Affiliate after a Conversion Event takes place, according to the fee schedule for the applicable Affiliate Product Program. The Referral Fees are described in greater detail in the Program Descriptions.

1.11 "Software" means the software that may be included in the Microsoft Content provided to Affiliate including but not limited to software that may be included for tracking and reporting purposes.

3. Affiliate Obligations.

3.1 Conversion Events. Affiliate will comply with the terms, directions and guidelines included in the applicable Program Description or as otherwise provided by Microsoft from time to time in connection with Affiliate's placement of the Links, its display of the Microsoft Content, its use of the Software, or other activity in connection with a specific Affiliate Product Program. Except as explicitly described in this Agreement and in the applicable Program Description, Affiliate may place the Links and display the Microsoft Content on as many areas of Affiliate's Web Site as Affiliate desires. In utilizing the Links, Affiliate agrees that it will cooperate fully with Microsoft in order to establish and maintain such Links and to enable proper tracking and reporting of Conversion Events. Affiliate also agrees that it will display on Affiliate's Web Site only the Microsoft Content that is provided by Microsoft in an unmodified form, and Affiliate will substitute Microsoft Content with any new Microsoft Content provided by Microsoft from time to time throughout the term of this Agreement. Microsoft may, in its sole discretion modify the Links, the Microsoft Content, and the Software during the term of the Agreement.

3.2 Warranty. Affiliate represents and warrants as follows:

(a) All information provided in its application to the Program is true, correct, and complete.
(b) Affiliate has the full right and capacity to enter into this Agreement and (if an individual) that Affiliate is at least 18 years of age.
(c) Affiliate is not an Affiliated Entity or an employee of an Affiliated Entity.
(d) Affiliate will at all times operate Affiliate's Web Site in compliance with all applicable laws, rules, and regulations, including but not limited to the CAN-SPAM Act of 2003 and those relating to privacy and data protection.
(e) Affiliate's Web Site and all contents thereof will at all times (i) comply with all applicable laws, statutes, ordinances, and regulations, (ii) not violate the rights of or any duty owed to any other party, and (iii) will not contain any restricted content listed in Attachment 1 to this Agreement.
(f) Affiliate will not solicit, encourage, commit, or permit any fraudulent or improper act to generate Conversion Events or Referral Fees.

4. Affiliate's Web Site.

4.1 Operation. Affiliate will be solely responsible for the development, operation, and maintenance of Affiliate's Web Site, including without limitation all costs and expenses incurred therewith. Without limitation, Affiliate will be solely responsible for the following:

(a) Performing the technical operation of Affiliate's Web Site and all related equipment.
(b) Ensuring the accuracy and appropriateness of materials posted on Affiliate's Web Site (including, among other things, all product-related materials).
(c) Ensuring that materials posted on Affiliate's Web Site do not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights.
(d) Ensuring that materials posted on Affiliate's Web Site are not libelous or otherwise illegal.
(e) Operating Affiliate's Web Site in compliance with applicable laws, rules, and regulations, including but not limited to the CAN-SPAM Act of 2003 and those relating to privacy and data protection.

4.2 Additional Restrictions. The pages on Affiliate's Web Site will be subject to the restrictions set forth in Attachment 1 to this Agreement; as such Attachment may be modified from time to time by Microsoft in its sole discretion

4.3 Compliance and Audit. Upon request from Microsoft, Affiliate will certify and warrant its compliance with this Agreement, the Affiliate Product Program terms, and all other terms and conditions of the Program. During the term of the Agreement and for one (1) year thereafter, Microsoft will have the right to cause a reasonable audit and/or inspection to be made of Affiliate's applicable records and facilities in order to verify Affiliate's certification of compliance with all terms and conditions of the Program. Any such audit will be conducted by Microsoft corporate internal audit or an independent professional selected by Microsoft. Affiliate agrees to provide Microsoft's designated audit or inspection team access to the relevant records and facilities. Except as specified in the next sentence, Microsoft will be responsible for all costs and fees related to such audits. If such audit reveals that Affiliate has breached this Agreement, made a false or incomplete certification of its compliance, or taken any improper action to generate Referral Fees or other benefit to Affiliate, then in addition to promptly refunding any Referral Fees or other benefits receive from or on behalf of Microsoft, Affiliate will be responsible for all costs and expenses incurred by Microsoft in conducting such audit, including, but not limited to, any amounts paid to any auditor or attorney.

4.4 Indemnity. Affiliate will fully defend, indemnify and hold Microsoft, its subsidiaries, affiliates, and suppliers harmless from all claims by third parties arising out of Affiliate's participation in the Program, any violation of this Agreement, or relating to the development, operation, maintenance, and contents of Affiliate's Web Site, except to the extent that any such claims relate to the Links, the Microsoft Content, or the Software in their unmodified forms as provided by Microsoft. Affiliate will pay the amount of any adverse final judgment, award, or settlement, and all attorneys' fees and costs. Affiliate may not settle any claim without the consent of Microsoft, which may be provided in its sole discretion. At Microsoft's sole option and at Microsoft's cost, Microsoft may participate in the selection of counsel, defense and settlement of any claim covered by this Section.

4.5 Licenses. Microsoft hereby grants Affiliate a nonexclusive, revocable, personal, non-transferable license to perform and display the Microsoft Content on Affiliate's Web Site solely for the purpose of enabling End Users to view the Microsoft Content and utilize the Links. In addition, if Microsoft supplies Software to Affiliate for tracking and reporting purposes, Microsoft hereby grants Affiliate a nonexclusive, revocable, personal, non-transferable license to download, install, and use such Software solely for the purpose of providing tracking and reporting information to Microsoft.

5. Reservations and Limitations.

5.1 Reservations. The Links, the Microsoft Content and the Software are protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Links, the Microsoft Content and the Software, and such Links, Microsoft Content and Software are licensed, not sold.

5.2 Limitations. Affiliate will not disassemble, decompile, or reverse engineer, the Links, Microsoft Content and Software, except and only to the extent that such activity is expressly permitted by applicable law. Affiliate will not remove or obscure any proprietary notices in the Links, the Microsoft Content and the Software.

5.3 SPAM. Affiliate will not use the Microsoft Properties to transmit, either directly or indirectly, any unsolicited bulk e-mail or unsolicited commercial e-mail. Affiliate will not use the Microsoft Properties in any way that violates the Microsoft Anti-Spam Policy. Affiliate may view the Anti-Spam Policy at privacy.msn.com/anti-spam. A breach of any part of the Anti-Spam Policy is a breach of this Agreement. Microsoft may use filtering technology or other measures in its efforts to stop unsolicited bulk e-mail and unsolicited commercial e-mail, and if Affiliate's use of the Microsoft Properties includes e-mail related services, then such filtering technology or other measures may block, either temporarily or permanently, some e-mail sent to Affiliate through the Microsoft Properties even if such e-mail does not violate the Anti-Spam Policy

5.4 Prohibitions. Affiliate will use and display the Links, the Microsoft Content and the Software only as explicitly directed by Microsoft. In addition, Affiliate will not, and will not authorize or encourage any third party to directly or indirectly take any action that may result in a Conversion Event through any automated, deceptive, fraudulent or other invalid means including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software. Any methods that artificially generate actions that may result in a Conversion Event are prohibited under this Agreement..

6. Referral Fees.

6.1 Amounts. Affiliate will earn Referral Fees according to the specific Affiliate Product Program in which Affiliate is participating. Microsoft will not be responsible for the payment of any Referral Fees for invalid Conversion Events or Conversion Events that occurred as a result of any violation of this Agreement, all as determined by Microsoft in its sole discretion. Affiliate acknowledges and agrees that neither Microsoft nor its contractors makes any guarantee, prediction, or representation regarding the ability of Affiliate to generate Conversion Events or earn Referral Fees.

6.2 Payment. In order to receive payment, Affiliate will be required to provide Microsoft with the following information: For U.S. Affiliates, Affiliate's U.S. tax identification number and a completed form W-9. For International Affiliates, Affiliate’s completed form W-8. If this information is not on file at the time of monthly payment, Affiliate will be paid after the next month during which this information has been submitted. Should a Product Program close at any time, the affiliate will only receive payment for any commissions earned if the required information is on file prior to the program closing date. Any Affiliate without the required information on file after the program close date will forfeit all referral fees earned.
Microsoft will pay Affiliate Referral Fees on a monthly basis provided the amount due Affiliate reaches one hundred dollars (U.S. $25.00). In the event the Referral Fees due do not reach $25.00 in any given month, Affiliate will be paid after the next month during which Affiliate meets the minimum $25.00 amount or if the minimum amount is not met during any month, at the end of the applicable calendar quarter. If a Conversion Event includes the purchase of a product, Referral Fees will not be paid for any incomplete or fraudulent purchases or purchases where product is returned. Microsoft may deduct the corresponding Referral Fee from Affiliate's next payment. If there is no subsequent payment of a Referral Fee, Microsoft will send Affiliate a bill for the Referral Fee. All payments will be made by check within thirty (30) days of the end of the month or the quarter, as applicable.

6.3 Account Charges. Affiliate is solely responsible for providing and maintaining accurate contact and payment information associated with Affiliate's account. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from a newly issued payment. In the event Microsoft is unable to locate Affiliate for the payment of Referral Fees after using reasonable efforts, Microsoft may retain the Referral Fees in accordance with applicable law. Microsoft may charge a reasonable fee for account maintenance against such Referral Fees up until there are no longer any Referral Fees remaining.

6.4 Taxes. Each party will be responsible for billing, collecting and remitting sales, use, value added, and other comparable taxes due with respect to (or incurred in connection with) the sale or license of such party's goods or services. Neither party is liable for any taxes, duties, levies, fees, excises or tariffs incurred in connection with or related to the sale of the other party's goods or services.

6.5 Reporting. Each payment of Referral Fees will include a report showing sufficient information as determined by Microsoft to show the calculation of the Referral Fees. In addition, Microsoft may make various reports available to Affiliate at a designated URL.

6.6 Disclaimer. Microsoft's calculation of the Reporting Fees will be based upon reports available to Microsoft. The reports available to Microsoft may contain discrepancies from the reports available to Affiliate, due to the stage at which the report is received, technology related issues, or other reasons. MICROSOFT'S PAYMENTS WILL BE BASED ON THE CONVERSION EVENT REPORTING AVAILABLE TO MICROSOFT, AND MICROSOFT WILL HAVE NO LIABILITY FOR ANY DISCREPANCIES BETWEEN THE INFORMATION AVAILABLE TO AFFILIATE AND THE INFORMATION AVAILABLE TO MICROSOFT. Microsoft will have no obligation to provide notice to Affiliate in the event that any Links, Microsoft Content, or Software are not being displayed on the Affiliate Website or are not functioning properly.

15. General

15.1 Publicity. Affiliate agrees that Microsoft may use its name and logo in press releases, presentations, marketing materials, customer lists, financial reports, and listings of Affiliates. Affiliate may use Microsoft's name and logo only as expressly authorized by Microsoft.

15.2 Information. Each party will own, and have sole control of, all information collected by it from the end users of its Web Sites.

15.3 Independent Contractors. The Parties are independent contractors with respect to each other hereunder, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, an agency relationship or a joint venture between the Parties.

15.4 Third Parties. Microsoft may use the services of third parties to perform any or all of its obligations hereunder.

15.5 Governing Law. This Agreement will be governed by the laws of the State of Washington, without reference to conflict of laws principles. Affiliate hereby irrevocably consents to the exclusive jurisdiction and venue of state or federal courts in King County, Washington, USA in all disputes arising out of or relating to this Agreement.

15.6 Assignment. Affiliate may not assign this Agreement, or assign, transfer or sublicense any of its rights hereunder.

15.7 Interpreting the Agreement. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. Except as expressly stated herein, this Agreement constitutes the entire agreement between Affiliate and Microsoft with respect to the Program and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Affiliate and Microsoft with respect to the Program. The section titles in the Agreement are solely used for the convenience of the Parties and have no legal or contractual significance.

15.8 Acceptance Required. Affiliate's participation in the Program is subject to Microsoft's acceptance of Affiliate's registration application and to Affiliate's continued compliance with the terms and conditions of this Agreement.

15.9 Attorneys' Fees. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses.