BlueLithium Publisher Representation Terms and Conditions

These BlueLithium Publisher Representation Advertising Terms and Conditions ("Ts & Cs") govern BlueLithium's relationship with the Publisher in relation to advertising specified in an Order that BlueLithium US Limited ("BlueLithium") procures for placement on Publisher Media ("Advertising"). Anyone agreeing an Order, or otherwise agreeing with BlueLithium that BlueLithium should procure and place non-specific quantities of Advertising, is deemed to agree to these Ts and Cs. BlueLithium does not permit any other terms or conditions to apply to such Advertising. An order that is expressly agreed by BlueLithium is referred to as an "Order" in these Ts and Cs. An Order in combination with these Ts & Cs constitutes an "Agreement". Terms defined in the Order bear that meaning in these Ts & Cs.

1. Appointment of BlueLithium
   1. The Publisher appoints BlueLithium to procure and place Advertising on the Publisher Media.
   2. BlueLithium will use its reasonable endeavors to promote, solicit and generate the Advertising, on condition that the Publisher complies with its obligations under these Ts and Cs.
   3. The Publisher agrees to facilitate the placement on the Publisher Media of Advertising of the Advertising or Activity Type stated in the Order.
2. Payments
   1. BlueLithium will invoice persons placing Advertising on the Publisher Media ("Advertisers"). The parties agree that all consideration payable in respect of Advertising shall be receivable exclusively by BlueLithium.
   2. The Publisher shall be entitled to the Remuneration identified in the Order, as deemed by the stats recorded by BlueLithium stats. The Final count of number of media delivered of any campaign, even if third party hosted, will be according to BlueLithium statistics, and Publisher acknowledges and agrees that the BlueLithium numbers will be controlling for all purposes under this Agreement.
   3. Publisher will issue reports to BlueLithium for each campaign ran at the end of the month. These reports will provide detailed information regarding the day-to-day activity of the ad campaign.
   4. Revenue-Share Remuneration is payable as a percentage (if any) of the amounts actually received by BlueLithium in the relevant month from Advertisers in respect of Advertisements of the Advertising or Activity Type(s) specified in the Order placed on the Publisher Media in accordance with the Order, net of (a) advertising agency commissions (where applicable) and any other commissions or charges paid or payable to Advertisers, their representatives or agents, (b) remuneration for data provision, behavioral targeting or other similar information related to the Advertisement in question, and (c) value added tax or similar taxes paid on the amounts in question.
   5. In the Order, the specified Advertising or Activity Types have the following meanings:
      1. CPM (cost-per-thousand): Remuneration is paid according to the number of payable impressions (in thousands) that are experienced on the page (or part of the page) of the Publisher Media where Advertising appears;
      2. CPL (cost-per-lead): Remuneration is payable according to the number of clicks on the relevant Advertising from the Publisher Media that result in a visit to the Advertiser's landing site and, within a period agreed between BlueLithium and the Advertiser, the bona fide completion of a desired action on that site as selected by the Advertiser, as specified in the Order;
      3. CPA (cost-per-action; cost-per-acquisition): Remuneration is payable according to the number of bona fide completed actions, such as registrations or sales (as selected by the Advertiser and specified in the Order) made, within a period agreed between BlueLithium and the Advertiser, by visitors to the Advertiser's landing site who have got there as a result of clicking on Advertising on the Publisher Media;
      4. CPC (cost-per-click): Remuneration is payable according to the number of individual visitors to the Publisher Media who click on the relevant paid Advertising;
      5. Other: Remuneration may be payable as a result of the placement of another form of Advertising on the Publisher Media, such as the continuous tenancy of Advertising on a portion of the Publisher Media in return for a periodic tenancy fee.
      If the Advertising or Activity Type specified in the Order is "Any", then BlueLithium may procure and place Advertising and Activity Types of any or all of the above types.
   6. The Publisher appoints BlueLithium to procure Advertising for all of the approved space for placement on the Publisher Media; such appointment is non-exclusive, and does not prevent the Publisher appointing another entity to place advertising on the Publisher Media.
   7. BlueLithium will use its reasonable endeavors to procure Advertising:
      1. Of each of the Advertising and Activity Types specified in the Order; and
      2. In the case of CPM sales, at CPM rates that are responsive to then-current market conditions.
   8. Invoicing. The Publisher shall, following the end of each calendar month during the term of an Agreement, issue to BlueLithium an invoice specifying the amount due for that month based on the reports as to Advertising or Activity Types for the Publisher Media in that month that can be accessed by means of the Publishers login at www.bluelithium.com. It is the publisher's responsibility to inform BlueLithium in writing, during the month, of any discrepancy dispute related to that month. In the absence of such notification the amount to be paid for the month to the Publisher will be in accordance with BlueLithium's recorded revenue stats.
   9. Within 60 days after receiving a correct invoice pursuant to Clause 2.7, BlueLithium shall pay to the Publisher the relevant Remuneration.
   10. All payments to the Publisher shall be made by cheque in cleared funds or other form of automated funds transfer to such bank account as the Publisher may notify to BlueLithium.
   11. The Publisher acknowledges that if BlueLithium does not receive from an Advertiser one or more payments of the sums from which Remuneration is payable, then BlueLithium shall be entitled (a) to withhold payment of the related Remuneration, and (b) if the related Remuneration has already been paid to the Publisher, to deduct the amount thereof from subsequent payments to the Publisher or to require the Publisher to pay to BlueLithium the amount of such Remuneration (which the Publisher agrees to do within 30 days of any invoice issued by BlueLithium).
   12. Subject to any Minimum CPM stated in the Order, the Publisher acknowledges that BlueLithium gives no warranty or undertaking as to the volume of Advertising or Remuneration that may be generated under an Agreement.
   13. Remuneration shall be payable only for Advertising that generates revenue to BlueLithium.
   14. BlueLithium shall be entitled to set off against Remuneration payable under this Clause 2 any sums owed by the Publisher to BlueLithium under an Agreement (or any other agreement between the Publisher and BlueLithium).
3. Reporting
   1. BlueLithium's proprietary ad serving software ("AdRevolver") will track the reporting of Advertiser's Advertising campaign (i.e. the number of clicks, the number of impressions, etc.).
   2. The performance of Advertising campaigns, even if third party hosted, will be based on AdRevolver statistics. The Publisher acknowledges and agrees that AdRevolver reports and statistics will be controlling for all purposes, including (without limitation) payments due, under an Agreement.
   3. BlueLithium will issue the Publisher with a login to AdRevolver to monitor Advertising. Through this login, the Publisher will be enabled to access reports, updated in close-to-realtime, specifying (a) the Advertising placed on the Publisher Media, and (b) the Remuneration payable, for periods selected by the user (within AdRevolver parameters).
4. Creative
   1. Creative comprised in Advertising shall be in such format, and placed by such means, as BlueLithium specifies from time to time. Advertising material cannot be altered at anytime.
   2. BlueLithium requires persons contracting for the placement of Advertising with BlueLithium to undertake that the Advertising does not (a) infringe any applicable law, rule, regulation, standard or code, (b) infringe the rights of any person or entity, nor require payment (including mechanical royalty or performing rights payments for use of music, union payments, rental right payments, author royalties or trade mark royalties) to be made, or (c) contain any virus, worm, Trojan horse or other contaminant that may be used to access and modify, delete or damage any data file or other computer program.
5. Publisher Media Content and Email Transmission
   1. The Publisher shall ensure that the Publisher Media do not feature material that is or may reasonably be considered (a) defamatory, (b) obscene, (c) to be a misrepresentation, (d) to infringe third party intellectual property, publicity or privacy right, (e) to constitute a virus, worm, Trojan horse or other contaminant that may be used to access and modify, delete or damage any data file or other computer program, (f) to be engaged in or promoting file-sharing, peer-to-peer, or adware- or spyware-provision, or pirating, hacking or other activities which are illegal, or (g) to breach any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws. The Publisher undertakes that is the owner of all right, title and interest in, or is validly licensed to use, the entire contents and subject matter of the Publisher Media.
   2. The Publisher shall also ensure that the Publisher Media do not contain any material of the type identified in:
      1. Schedule 1 to this Agreement; and
      2. Schedule 2 to this Agreement, unless (and to the extent) specified in the Optional Material section of the relevant IO.
   3. The Publisher shall further ensure that marketing or commercial emails sent by the BlueLithium under an Agreement or by the Publisher (or anyone else) in connection with the Publisher Media are sent in compliance with applicable laws.
6. Remuneration
   1. Notwithstanding any other provision of an Agreement, BlueLithium shall not be liable to Publisher or any third party for any Remuneration arising out of activity on the part of the Publisher or anyone apparently associated with or acting under instructions from the Publisher that is intended to inflate CPL, CPA or CPC figures ("fraudulent activity"), including but not limited to the provision of false lead information or multiple leads from a single individual. Publisher shall take all reasonable steps to prevent such activity. BlueLithium shall have sole discretion in determining whether fraudulent activity has occurred, and shall have the right to withhold payment of Remuneration until final determination of the validity of the activity. If BlueLithium discovers fraudulent activity after payment of Remuneration has been made that derives from such activity, BlueLithium may at its option offset the amount of such payment against any future payments to Publisher or, at BlueLithium's written request, Publisher shall immediately repay such payment in full to BlueLithium. Publisher further agrees to provide full cooperation to BlueLithium in any investigation of possible fraudulent activity, including access to Publisher's access logs and other customer and affiliate information.
   2. BlueLithium reserves the right to qualify leads and will not pay for duplicate CPL/CPA entries, incomplete entries, or entries that are determined to originate from fraudulent activity. BlueLithium also reserves the right to refuse payment for leads originating from any program where incentives or rewards were used as an incentive to increase lead conversion.
   3. Publisher agrees to use the Advertising creative (and the links from them) in the exact form that BlueLithium delivers them to the Publisher and not to alter, modify, or adapt the Advertising creative or links in any manner without BlueLithium's prior written consent
   4. BlueLithium does not guarantee that all Advertising appearing on the Publisher Media will be revenue-generating for the Publisher. There will be times when "Default Advertising", meaning Advertising for which no payment is received by BlueLithium, will be run on the Publisher Media. BlueLithium will provide the Publisher with opportunity to provide the Publisher's "house" creative, or redirects to other advertising, as the Default Advertising option. Such creative or advertising must comply with the requirements of this Agreement as if it were Publisher Media for such purpose. In the absence of the Publisher specifying its own Default Advertising, BlueLithium shall be entitled to place Default Advertising of its own choice on the Publisher Media. No Remuneration, including (without limitation) CPM Remuneration, will be payable in respect of any Default Advertising.
   5. The Publisher acknowledges, for the avoidance of doubt, that BlueLithium may use non-personal behavioural data concerning individual users of the Publisher Media (or more specific pages thereof) to help target Advertising to those users.
7. General Publisher Obligations
   The Publisher shall:
   1. not, during the term of an Agreement or for the period of six months thereafter, directly or indirectly (other than by general advertising) solicit, seek, procure, or enter into any arrangement for the provision of, the services of any employee or agent of BlueLithium who has been engaged in the performance of any of the services provided to the Publisher under an Agreement without the prior written consent of, and upon such terms as are specified by, BlueLithium; and
   2. competently input on the Publisher Media the tags provided to it by BlueLithium from time to time in order to enable the relevant Advertising to be run there;
   3. ensure that such tags are not placed on or utilized by any site other than the Publisher Media; and
   4. include in the privacy policy (or similar) of the Publisher Media:
      1. disclosure that the Publisher Media engages in the Advertising or Activity Type specified in the Order; and
      2. such provisions as are required by law or best practice, including disclosures concerning the use of cookies on or in connection with the Publisher Media, as required under law,
      and the Publisher acknowledges that BlueLithium operates under its Privacy Policy, available at [http://bluelithium.com/privacy_policy.html].
8. Indemnification
   1. Publisher will at all times indemnify and hold harmless BlueLithium from and against any and all claims, demands, liabilities, costs and expenses, including reasonable legal fees on a solicitor and client basis, arising from third party claims alleging matters which, if true, would show that Publisher had breached any of its representations, warranties or obligations under an Agreement.
   2. The provisions of Clause 8.1 shall survive the termination of an Agreement.
9. Confidentiality
   1. Each party ("Disclosee") shall keep confidential all Confidential Information of the other party ("Discloser") and shall not disclose any such Confidential Information save to such employees, agents or sub-contractors of the Disclosee who need to know the same for the purposes of an Agreement. However, nothing in this Clause 9 shall be interpreted to inhibit or restrict BlueLithium's disclosure of information and statistics concerning the Publisher Media in connection with activities conducted under an Agreement or if such disclosure is required under law, for example in the case of a subpoena.
   2. For the purposes of this Clause, "Confidential Information" means all information which is expressed to be or ought reasonably to be regarded as the confidential information of the Discloser (including, without limitation, business or financial details and arrangements of the Discloser), other than information that is in the public domain.
   3. Publisher shall permit BlueLithium to conduct advertising research using data provided by or relating to Publisher, to be used in aggregate. Publisher will receive top-line reports on all such research which is conducted for the benefit of BlueLithium's network of clients.
10. Warranties
    Save to the extent that they are expressed in an Agreement, all representations, conditions, warranties and terms relating to the services provided by BlueLithium under or in connection with an Agreement (whether statutory or otherwise, and including, without limitation, any as to the fitness for a particular purpose, satisfactory quality or merchantability of any thereof) are hereby excluded by BlueLithium to the fullest extent permitted by law.
11. Limitation of Liability
    1. Nothing in these Ts and Cs limits BlueLithium's liability for death or personal injury resulting from BlueLithium's negligence, or for fraud.
    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUELITHIUM, INC. BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS), WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF BLUELITHIUM, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, BLUELITHIUM, INC.' MAXIMUM CUMULATIVE LIABILITY AND ADVERTISER'S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID IN THE LAST THREE MONTHS BY BLUELITHIUM, INC. TO PUBLISHER PURSUANT TO THIS AGREEMENT.
12. Termination
    1. BlueLithium may terminate this agreement immediately on written notice to the publisher in the event that the publisher is in material breach of these Ts and Cs, and such breach remains unremedied within thirty days after written notice given by the terminating party specifying the breach and requiring its remedy. Any breach by the Publisher of Clause 5.1 or Clause 5.2 shall entitle BlueLithium to terminate each affected Agreement by immediate notice in writing to the Publisher.
    2. The term of this Agreement shall be indefinite. BlueLithium reserves the right to terminate this Agreement at any time, without cause. Upon termination of this Agreement by BlueLithium, Publisher shall refund payments received for any media type under delivered. Publisher will be entitled for all legitimate earnings due up to the time of termination. Delivery of notice via e-mail, telephone or electronic facsimile shall be considered sufficient notice to the Publisher of the termination of this Agreement by BlueLithium.
    3. Publisher may also terminate this Agreement at any time with a fourteen-day written notice, delivered via email, US Mail or electronic facsimile. BlueLithium shall be obligated to pay for media type delivered generated prior to the notice of termination, and shall remain obligated to pay for media type delivered until the earlier of (i) the end of the fourteen-day notice period, or (ii) the actual cease of ad campaign. Delivery of notice via e-mail, telephone or electronic facsimile shall be considered sufficient notice to BlueLithium of the termination of this Agreement.
    4. Any termination under this Clause 12 shall be without prejudice to any rights accrued in favour of either party in respect of any breach committed prior to the date of (or giving rise to) such termination and to those provisions of an Agreement which are by their construction intended to survive such termination.
13. Notices
    All notices and other communications to be given under the Ts & Cs must be in writing and delivered (a) by hand or (b) sent by first class post or (c) by email to the other party at its address given in the Order, and shall if delivered by hand be deemed served on the day of delivery (providing proof of delivery if retained) or if by post be deemed served on the third day after first class recorded delivery posting (providing proof of posting is retained) or if by email be deemed served on the day of delivery (providing proof of the successful sending of the email is retained).
14. Entire Agreement
    These Ts and Cs and each Order between the parties (the "Agreement") contain the entire agreement and understanding between the parties with respect to the subject matter thereof, and (in relation to such subject matter) supersede all prior discussions, understandings and agreements between the parties and their agents (or any of them) and all prior representations and expressions of opinion by either party (or its agents) to the other party (or its agents), save that neither party shall limit or exclude or be deemed to limit or exclude any fraud or fraudulent representation by that party (or its agents) to the other party (or its agents) by this Clause.
15. Various
    1. If any provision of an Agreement is or becomes invalid or illegal in any respect such provision shall be deemed to be severed from that Agreement but the validity, legality and enforceability of the remaining provisions of the Agreement shall not be affected or impaired thereby.
    2. A failure by either party to exercise and any delay forbearance or indulgence by either party in exercising any right, power or remedy under an Agreement shall not operate as a waiver of that right, power or remedy or preclude its exercise at any subsequent time.
    3. BlueLithium shall be entitled to sub-contract the performance of any of its obligations under an Agreement, and (provided it notifies Publisher thereof) to assign all or any of its rights and obligations under that Agreement.
    4. Publisher shall not assign or otherwise transfer any of its rights and obligations under an Agreement to any other person without the prior written consent of BlueLithium.
    5. The Clause headings in the Order and these Ts and Cs are included for convenience only and shall not affect the construction of the Agreement.
    6. Nothing in an Order shall prevail over any these Ts and Cs unless it is expressly stated to do so in the Order.
    7. Words and phrases accorded a particular meaning in any Clause or provision of an Agreement shall (unless the context otherwise requires) be accorded that meaning when they appear elsewhere in the Agreement.
    8. Neither party shall be liable for any breach of an Agreement that results from matters beyond such party's reasonable control, provided that both parties shall work together to ameliorate the effects thereof.
16. Governing Law
    1. Each Agreement shall be governed by California Law.
    Any claim, dispute or controversy arising out of or in connection with or relating to this Agreement or the breach or alleged breach thereof shall be submitted by the parties to arbitration by the American Arbitration Association in the City of San Jose, State of California, United States of America under the commercial rules then in effect for that Association except as provided herein. All proceedings shall be held and a transcribed record prepared in English. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorney's fees and reasonable costs for expert and other witnesses. Judgment on such award may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties irrevocably submit to the non-exclusive jurisdiction of the Superior Court of the State of California, Santa Clara County, and the United States District Court for the Northern District of California, Santa Clara County, in any action to enforce an arbitration award. Nothing in this paragraph shall be deemed as preventing either party from seeking relief from the courts as necessary to protect either party's name, proprietary information, trade secrets, know how or any other appropriate provisional remedy.

Agreement of Code of Conduct by Publisher

In the above agreement, BlueLithium US Inc. ("BlueLithium") and the Publisher (identified below which includes all members sites) have arranged for BlueLithium to place advertising on one or more interactive properties for which the Publisher is responsible ("Publisher Media"). Under the terms of the Code of Conduct Publishers running BlueLithium's tags must ensure that advertising placed does not appear on websites which may jeopardize the advertiser's brand. Under this obligation BlueLithium requires that all Publishers ensure that all sites on their network- such as the Publisher Media - do not include certain kinds of objectionable content or activity which includes but is not limited to the following:

1. The Publisher either owns or is entitled to use the content displayed on the Publisher Media;
2. The Publisher does not knowingly include in the Publisher Media any 'virus' or other destructive programming or device that could impair or injure any data, computer system or software;
3. Publisher Media does not violate any applicable laws or regulations, including without limitation, false or deceptive or comparative advertising laws, gaming and gambling laws, competition laws, and criminal laws;
4. The Publisher Media does not contain content originated by or on behalf of the Publisher that is defamatory, violates any rights of privacy or publicity or that constitutes a misrepresentation;
5. The content of the Publisher Media originated by or on behalf of the Publisher does not and will not infringe any intellectual property or other rights;
6. The Publisher and the Publisher Media do not engage in, promote or knowingly facilitate activities such as pirating, hacking or any other activities which are illegal under US law;
7. In respect of unlawful activity or content contributed to the Publisher Media without the Publisher's knowledge or awareness of its unlawfulness, the Publisher operates a "notice and takedown" policy that complies with applicable law (currently the Electronic Commerce (EC Directive) Regulations 2002); and
8. All tags issued to the site will be used only for the URL originally approved to run on the BlueLithium network.
9. The Publisher will use all reasonable endeavors not to include on the Publisher Media those types of content forbidden as stated in Schedule 1 and 2 of this agreement.
10. Publisher understands that any violation of this Agreement will result in forfeit of any money owed by Blue Lithium to the Publisher as well as legal action against the site. In addition, as a result of the violation of this agreement by the Publisher the Publisher will pay to Blue Lithium, within 30 days of being notified of such violation by Blue Lithium an amount of $30,000.00 (US), plus any legal expense as well as damages incurred by BlueLithium.