Privacy Policy

AFFILIATE AGREEMENT

The following terms and conditions constitute the binding legal agreement (this "Agreement") by and between TambaMedia (the "Company") with offices at our address, and you (the "Affiliate," "Publisher," "You" or "Your") the user of the TambaMedia website (the "Website") and TambaMedia affiliate network program, and sets forth the parties' respective rights and obligations with respect to the affiliate program (the "Affiliate Program"). Notwithstanding the effective date of this Agreement, Company shall have sole discretion to determine the date that the Affiliate Program begins. You agree to use the Website, and any additional products and/or services offered by Company in accordance with this Agreement. Company reserves the right to make changes to the Website and the terms and conditions of this Agreement at any time. The latest Agreement will be posted on the Website. Please be advised that this Agreement is subject to change at any time, in Company's sole discretion. Changes may include, without limitation and by example only, changes in the payout structure, payment procedures and other Affiliate Program-related policies. The continued participation by Affiliate in the Affiliate Program, fully subjects the Affiliate to any and all changes to this Agreement in effect at the time. Your continued use of the Website after any such modification and notification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Website for updates and/or changes. If You do not agree to the terms and conditions contained within the Agreement in their entirety, You are not authorized to register as an Affiliate, or use the Website.

APPROVAL, TERM AND TERMINATION:
Your use of the Website is subject to the prior approval of Company, and once approval is obtained, you are considered a member of the Affiliate Program. Company reserves the right to withhold approval of membership in the Affiliate Program for any reason whatsoever. The scope of Your membership in the Affiliate Program is limited to the specific Traffic Source(s) specified by Company.

The term of this Agreement will begin upon Company's written acceptance of the Affiliate Application and will end when terminated by either party upon three (3) days prior written notice to the non-terminating party. Company may terminate Affiliate's participation in the Affiliate Program at anytime and for any reason, in Company's sole discretion including, without limitation: a) where Company believes that Affiliate is in any way in breach of this Agreement; b) where Company believes that the Affiliate website ("Affiliate Website") or the Affiliate e-mail database ("Affiliate Database") is unsuitable for the Affiliate Program for any reason including, without limitation, that the Affiliate Website contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; c) where Company believes that Affiliate is not, in any fashion, conducting permission-based e-mail marketing that fully complies with all applicable laws, rules and regulations; and/or d) upon dissolution or insolvency of either party. Termination notice may be provided via e-mail or any other public means and will be effective immediately. Upon receipt of such termination notice, Publisher agrees to immediately cease using the Website, including, but not limited to, removal of Ads, codes and/or site links from Affiliate's Web Site, Email publication(s) and other Traffic Sources. Affiliate is only eligible to earn "Commissions," as defined herein below, on billings generated during the term of this Agreement and not subject to the above-referenced reasons. In the case of termination, all moneys due that are not subject to dispute (e.g., allegations of fraud, non-U.S. traffic, multiple Actions via the same IP address) will be paid during the next billing cycle as set out in this Agreement. Upon any termination of this Agreement, any and all licenses granted hereunder shall immediately expire.

LICENSE:
Company hereby grants Affiliate a non-exclusive, non-transferable, revocable and limited license to market the Affiliate Program products and/or services in accordance with this Agreement (the "Affiliate Campaign"). Company may use Affiliate's personal information in any manner consistent with the TambaMedia Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding the Company's usage of Affiliate information collected, please refer to the TambaMedia Privacy Policy incorporated by reference herein and located at www.TambaMedia.com (the "TambaMediaWebsite"). TambaMedia shall be responsible for providing the information necessary to allow Affiliate to carry out its rights and duties pursuant to this Agreement and shall be responsible for placing advertisements received from TambaMedia Advertisers ("Advertisers") on the TambaMedia Website.

PAYMENTS:
TambaMedia shall pay commissions according to the payment terms of the Affiliate Program ("Commissions") as indicated hereinabove and/or on the TambaMedia Website. Company shall pay Affiliate Commissions approximately fifteen (15) days after the last day of a given calendar month, for those Commissions earned in that month. TambaMedia, in its sole discretion, may withhold any and all payments due and owing to Affiliate until such time as Advertiser has paid TambaMedia for any Advertising Campaign. TambaMedia reserves the right to reduce any and all payments owed to Affiliate where Advertiser has offset payments owed to TambaMedia. TambaMedia shall compile, calculate and post on the TambaMedia Website data that TambaMedia has used to determine Affiliate's billing and associated Commissions due (the "Data"). Any questions or disputes regarding the Data must be submitted in writing to TambaMedia within five (5) business days of the date that the Data is posted on the TambaMedia Website; otherwise the information contained therein will be deemed accurate and accepted by Affiliate. TambaMedia will investigate and resolve any Data-related questions or disputes in its sole discretion. TambaMedia shall not be responsible to pay Affiliate on any eligible Commissions where: i) leads are from e-mail recipients that have previously registered, opted in and/or are already an Advertiser website member and/or applicable campaign customer, as the case may be; and/or ii) the subject e-mail recipient fails to comply with Advertiser's requirement that an e-mail recipient opt-in to receiving e-mail marketing from Advertiser. Notwithstanding anything contained herein to the contrary, no Commission payments will be issued to an Affiliate for any amounts that are, in the aggregate, less than twenty-five US Dollars ($25.00) (the "Payment Threshold"). All such amounts below the Payment Threshold shall be held, aggregated and paid to Affiliate only when the Payment Threshold has been reached. TambaMedia will not pay Commissions on any billings that occur: i) before Affiliate is accepted into the Affiliate Program; or ii) after termination of this Agreement. Affiliate agrees that the Commissions due and payable to it shall be based solely on the Data posted on the TambaMedia Website. TambaMedia will not pay any Commissions to Affiliate unless Company has documentation to support such Commissions within the Company database and Data. TambaMedia may require Affiliate to provide a W-9, or similar tax identification information, as a condition precedent to receiving any Commission payments. TambaMedia reserves the right to withhold and/or cancel Commission payments due and owing to Affiliate at any time, in its sole discretion, when Company believes that Affiliate is in breach of this Agreement. Customers who buy products and/or services through the Affiliate Program shall not be deemed to be the customers of TambaMedia. All Commission payments due to Affiliate will be paid in US dollars.

CONTENT:
Company will make available to Affiliate certain marketing pieces created by Advertiser and/or TambaMedia for use in the Affiliate Program. In particular, TambaMedia will post creatives ("Creatives"), text links and/or banner advertisements ("Banner Ads") (collectively, the "Content") on the TambaMedia Website for download, use and publication by Affiliates. The Content shall contain unique Affiliate-specific identifiers/code that will enable TambaMedia to track Affiliate generated click-through. TambaMedia may change or revise the Content that is prepared by TambaMedia at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of the Content that is prepared by TambaMedia and posted on the TambaMedia Website. Affiliate may not alter, modify or otherwise change the Content in any manner, whatsoever. Company may terminate Affiliate's right to use the Content for any reason at any time, in its sole discretion. Affiliate may only use Content that is supplied by TambaMedia and is posted on the TambaMedia Website. Use, or the attempted use, of any other marketing materials and/or Content in connection with the Affiliate Program will result in the immediate termination of this Agreement, without notice. Each Affiliate agrees that TambaMedia may, in its sole discretion, direct the placement of the Content on the TambaMedia Website. Affiliate mayNOT use brand names and/or trademarks of another party (e.g., Milton Bradley or Apple) in the "subject" or "from" lines or body of any commercial e-mail transmission. Affiliate agrees and acknowledges that it shall not: i) incentivize offers or create the appearance of incentivizing offers; ii) place any statement in close proximity to the Content requesting that e-mail recipients "click" on the Content (e.g., "Please click here"); iii) place misleading statements in close proximity to the Content; and/or iv) redirect traffic to a website other than the website listed by the particular Advertiser. Should Affiliate conduct e-mail marketing campaigns to its users, Affiliate must, upon the request of TambaMedia, be able to produce the name, date, time and IP address of where the consumer signed-up and/or gave permission to Affiliate to conduct such e-mail campaign. Affiliate is solely responsible for all consumer complaints relating to e-mail campaigns conducted by Affiliate. Affiliate represents and warrants that it will respond to all consumer complaints within forty-eight (48) hours of notification.

E-MAIL MARKETING POLICY/CAN-SPAM COMPLIANCE:
Affiliate represents and warrants that, at all times, it will comply with all applicable state and federal laws, rules and Federal Trade Commission enabling regulations (including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time), with respect to e-mail marketing. Affiliate acknowledges that any failure to comply with this Section may, in Company's sole discretion, result in the immediate termination of this Agreement and the forfeiture of any and all rights to any Commissions otherwise owed to Affiliate by TambaMedia. When performing e-mail marketing of any kind and on behalf of any Advertiser, Affiliate represents and warrants that Affiliate shall deliver commercial e-mail only to those recipients: i) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient, and such information can be proven to Company with accompanying documentation; or (ii) with whom Affiliate has a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient, and such proof can be given to the Company.

Furthermore, as part of keeping Your account remaining in good standing with Company, Affiliate represents and warrants that it understands and will fully comply with these Email Guidelines as referenced in the TambaMedia Email Policy as well.

1. Affiliate must comply with all applicable laws and regulations, including but not limited to the CAN-SPAM ACT and Section 5 of the FTC Act when promoting the offers of Company's Advertisers.

2. Affiliate will not use a falsified sender domain or a non-responsive IP address, and must disclose all IP addresses it uses to deploy emails in connection with the Website.

3. Affiliate shall not use or include a false or misleading subject line that attempts to disguise or conceal the content of the email.

4. Affiliate shall include valid and responsive contact information and physical address and optionally the sender's phone number, in each email solicitation.

5. Affiliate shall not send emails for the purpose (but necessarily the sole purpose) of harvesting the email addresses in order to send future unsolicited emails.

6. Affiliate must obtain each recipient's prior affirmative ('Opt-In') and must be able to provide demonstrable proof that such Opt-In consent was obtained. Upon request by Company, Affiliate will promptly provide information regarding consumer responses to the email distribution and any and all records verifying that recipients consented to receive the email transmissions in question, including but not limited to, date of Opt-In, name of Opt-In individual, website from where individual Opted-In and IP address.

7. All emails must contain a clear and reasonable method for the individual to "opt-out" of receiving further email solicitations. Acceptable methods include (i) having an unsubscribe link in each email delivered which is unique to the recipient, or (ii) having a link to a non-password protected website where the individual can 'opt-out' from receiving further email solicitations from Affiliate, and (iii) allowing the recipient to respond to a functioning return electronic email address with a message that is either blank or has 'Unsubscribe' in the header. In every case, the unsubscribe process must be easy to recognize, use and be effective. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message.

8. Each email solicitation sent by Affiliate or Sub- Affiliate/Publisher on Affiliate's behalf shall include a valid physical postal address (as of U.S. Postal Regulations) of the party sending the email communication.

9. Any and all unsubscribe requests must be honored within ten (10) business days from receipt of request, and Affiliate shall maintain electronic or tangible records confirming the removal of such emails from Affiliate's lists for verification by Company.

10. Unless otherwise directed by Company in writing, Affiliate, or any of Your authorized Sub-Affiliate/Publisher(s) shall not use Company or its represented advertisers names (including any abbreviation thereof) or any trademark trade name, service mark, logo or other Company identifying information in the originating or return email address line, header or subject line of any email transmission.

11. Affiliate agrees to monitor what others are doing on its behalf if it so contracts with others.

12. Upon request from Company, Affiliate shall immediately stop sending any emails that contain a particular Ad, or that pertain to a particular Campaign.

13. All email transmissions shall contain language in the body and both the 'from' line as well as the 'subject' line that clearly announces that the email solicitation is being sent by Affiliate for the benefit of Affiliate's email subscribers. If there is an approved subject line available on the Platform for a particular Campaign, Affiliate may only use that approved subject line. Affiliate is prohibited from engaging in the following: (i) altering, modifying, or otherwise changing Company's approved subject lines without Company's prior written approval; or, (ii) delivering an email under this Agreement with no subject line. Suggestions for new subject lines are allowed; however, any suggestions must be approved by Company prior to being included in any Affiliate emails.

14. Affiliate must maintain at all times during this Agreement and for a period of three (3) years after any termination from this Agreement, complete and accurate subscriber sign-up/registration data for every subscriber to Affiliate's Email publications. Affiliate agrees that, within twenty-four (24) business hours of Company's request, it shall provide, at a minimum, the following subscriber sign-up/registration data for any email address that Affiliate sends an email to with an Ad Select Network advertisement: (1) subscriber email address used to sign-up/register for Affiliate's Email publication, (2) subscriber's IP address, (3) date and time of subscriber's sign-up/registration for Affiliate's Email publication, and (4) location of subscriber's sign-up/registration (i.e., what is the original source of the subscriber email address; where did they sign-up/register for Affiliate's email publication).

Failure to comply by the above guidelines may result in withholding of commissions and/or revocation of Affiliate's ability to use the Website.

Affiliate also agrees that at least once a week it will scrub the Affiliate Database against the Advertiser suppression list that will be made available on the TambaMedia Website, subject to the provisions contained herein and below, and immediately notify TambaMedia in the event that any complaint, investigation and/or litigation ensues concerning Affiliate's e-mail practices (whether or not such complaint, investigation and/or litigation relates to Affiliate's relationship with TambaMedia).

SUPPRESSION LISTS: With respect to any suppression list generated through the Affiliate Program, Affiliate agrees to: a) use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; b) regularly use such suppression list to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; c) not use the suppression list for purposes of e-mail marketing (or provide the suppression list to any third party for said purposes) and not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression list; d) not use any suppression list for purposes of e-mail appending in any manner whatsoever; e) hold any suppression list in trust and confidence and use same solely for the suppression purposes set forth herein; f) not retain a copy of any suppression list following termination of this Agreement; and g) not disclose any suppression list to any employee, consultant, subcontractor, or third party individual, corporation or entity without first ensuring said party's written agreement to be bound by the terms of this Agreement. Such agreement shall be immediately forwarded to TambaMedia, upon request. TambaMedia reserves the right to withhold its consent to such disclosure and may, within its discretion, accordingly bar the disclosure of any and all suppression lists. Affiliate further agrees and acknowledges that: a) it has downloaded and removed the domains located on the FCC's wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used inTambaMedia mailings; and b) any and all new data that it acquires, regardless of its source, will be run and/or scrubbed against the FCC's wireless domain names list and that the domain names contained therein will be removed before sending any TambaMedia mailings.

COVENANTS, REPRESENTATIONS AND WARRANTIES: Affiliate hereby represents and warrants that: a) this Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate's legal, valid and binding obligation which is fully enforceable against it in accordance with its terms; b) Affiliate under this Agreement will be in full compliance with all federal, state and local laws and regulations, including, but not limited to, rules of the Federal Trade Commission, the CAN-SPAM Act of 2003 (as amended from time to time) and Section 5 of the FTC Act; and c) Affiliate understands and agrees that TambaMedia will enter into similar agreements with other TambaMedia affiliates in direct competition with Affiliate; and d)Affiliate acknowledges content does not, and will not during the term of this Agreement, display content that may, in the sole opinion of Company: (A) violate any law, give rise to criminal or civil liability or infringe any copyright, patent, trademark or service mark, trade secret rights or any other personal, moral, contract, property or privacy right of any third party (collectively "Unlawful Content"); (B) contain or promote viruses, obscene, abusive, violent, bigoted, hate-oriented, cracking, hacking, or warez content or conduct (collectively "Offensive Content"); or (C) encourage conduct that would constitute unlawful content or Offensive Content.

Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Website, Affiliate Database and for any and all materials that appear on the Affiliate Website. Such responsibilities include, without limitation: i) the technical operation of the Affiliate Website and all related equipment; ii) creating and posting content, descriptions and references on the Affiliate Website; iii) the accuracy and propriety of materials posted on the Affiliate Website; iv) ensuring that materials posted on the Affiliate Website do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and v) ensuring that the Affiliate Website complies with all applicable rules, regulations, and laws. Company will make every effort to meet scheduled delivery and online dates, but makes no guarantee and accepts no liability for it failure to meet said dates.

DISCLAIMERS/LIMITATION OF LIABILITY:
THE AFFILIATE PROGRAM, TambaMedia WEBSITE AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS PARENTS, AFFILIATES AND/OR SUBSIDIARIES, AND EACH OF THEIR RESPECTIVE OFFICERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS AND ATTORNEYS, INCLUDING THE WEBSITE AND THE AFFILIATE PROGRAM, BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN; AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE AFFILIATE PROGRAM, TambaMedia WEBSITE AND CONTENT MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TambaMedia HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE AFFILIATE PROGRAM, THE TambaMedia WEBSITE AND/OR CONTENT. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, TambaMedia IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN TambaMedia AND AFFILIATE. THE AFFILIATE PROGRAM, TambaMedia WEBSITE AND CONTENT WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. TambaMedia MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE AFFILIATE PROGRAM. AFFILIATE IS SOLELY RESPONSIBLE FOR ANY AND ALL LEGAL LIABILITY ARISING OUT OF OR RELATING TO (I) AFFILIATE CONTENT(S) AND/OR (II) ANY CONTENT OR MATERIAL TO WHICH USERS CAN LINK THROUGH VIA AFFILIATE CONTENT (OTHER THAN LINKS PROVIDED THROUGH AN AD). NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM TambaMedia THROUGH THE AFFILIATE PROGRAM, TambaMedia WEBSITE, OR CONTENT SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE AFFILIATE PROGRAM, TambaMedia WEBSITE AND CONTENT IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE AFFILIATE PROGRAM AND ACCESS AND/OR USE OF THE TambaMedia WEBSITE AND CONTENT IS DONE SOLELY AT AFFILIATE'S OWN DISCRETION AND AT AFFILIATE'S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE AFFILIATE PROGRAM, TambaMedia WEBSITE AND CONTENT THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. UNDER NO CIRCUMSTANCES SHALL TambaMedia BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH AFFILIATE'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE'S PARTICIPATION IN THE AFFILIATE PROGRAM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST COMPANY MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT. COMPANY'S MAXIMUM AGGREGATE LIABILITY TO AFFILIATE AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL NOT EXCEED THE PRICE THAT AFFILIATE HAS PAID TO PARTICIPATE IN THE AFFILIATE PROGRAM.

PROPRIETARY RIGHTS:
The organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Affiliate Program, Content, and the TambaMedia Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The usage, copying, redistribution and/or publication by Affiliate of any part of the Affiliate Program, Content, and the TambaMedia Website, other than as contemplated hereunder, are strictly prohibited. Affiliate does not acquire any ownership rights to the Affiliate Program, Content, and/or the TambaMedia Website. The availability of the Affiliate Program, Content, and the TambaMedia Website does not constitute a waiver of any rights related thereto.

PUBLICITY/CONFIDENTIALITY/NON DISCLOSURE:
Affiliate agrees that TambaMedia may use Affiliate's name, company name, and/or likeness, the Affiliate Website address and any associated information in Company's marketing materials and press releases, without compensating Affiliate. Affiliate shall not create, publish, distribute or permit any written material that makes reference to TambaMedia without first submitting such material to Company and receiving Company's prior written consent, which Company may withhold in its sole discretion. The terms and conditions of this Agreement shall be held confidential by both parties at all times. This Section shall survive any termination of this Agreement for a period of two (2) years thereafter. Notwithstanding anything contained herein to the contrary, a duty of non-disclosure and confidentiality shall not apply where either party can demonstrate with clear evidence that the information: (a) was previously known at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of either party; (c) was rightfully received by either party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.

INDEMNIFICATION:
Affiliate agrees to indemnify, defend and hold Company, its parents, affiliates and/or subsidiaries, and each of their respective directors, officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs as well as the cost of indemnifying third parties) arising from: a) any breach by Affiliate of any duty, representation or warranty under this Agreement, including but not limited to breach of any of Affiliate's Responsibilities outlined in this Agreement; b) Affiliate's participation in the Affiliate Program, in any manner whatsoever; and c) arising out of or related to: libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Affiliate Content and any allegation that Affiliate has infringed upon the trade name, service mark, license, intellectual property or other proprietary right of any third party; and d) a contaminated file, virus, worm, or Trojan horse originating from the Affiliate Content (other than through an Ad); and the acts and/or omissions of any Sub-Affiliates or Publishers utilized or employed by the Affiliate. In addition, Affiliate agrees to indemnify, defend and hold TambaMedia, its parents, affiliates and/or subsidiaries, and each of their respective directors, officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs as well as the cost of indemnifying third parties) arising from any third party claim related to the Affiliate Website and/or Affiliate's e-mail marketing practices. Without limiting the foregoing, Affiliate agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Company and/or any of its Advertisers pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law.

FORCE MAJEURE:
Affiliate agrees that TambaMedia will not be liable, or be considered to be in breach of this Agreement, on account of Company's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond Company's reasonable control and that Company is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, Company will give Affiliate notice and will use commercially reasonable efforts to minimize the impact of any such event.

MISCELLANEOUS:
This Agreement, including but not limited to the relationship between Company and Affiliate will be governed by, and construed in accordance with, the laws of the State of New York without regard to its laws or regulations relating to conflicts of laws.

Should a dispute arise concerning the terms of this Agreement, or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in New York City, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. At the request of Company, arbitration proceedings will be conducted in secrecy. In such case, all documents, testimony and records shall be received, heard and maintained by Arbitrator in secrecy under seal, available for the inspection only by Company or Affiliate and by their respective attorneys who shall have agreed, in advance and in writing, to receive all such information confidentially and to maintain such information in secrecy. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

Affiliate agrees that any unauthorized and/or unlawful use of the Affiliate Program would result in irreparable injury to TambaMedia for which monetary damages would be inadequate. In such event, TambaMedia shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to TambaMedia. TambaMedia and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Company's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Any attempt by any individual, whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Affiliate Program, is a violation of both criminal and civil law and TambaMedia will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and TambaMedia successors and assigns. FRAUD: It is important to note that any fraud associated with Publisher/Affiliate's account can and will be charged back to the same at the total cost of the loss plus applicable penalties. For every fraudulent sale Company will charge the Publisher the amount equivalent to the CPA plus applicable penalty, so for example and without limitation, when someone generates a $40.00 CPA sale and it is a fraudulent sale they get the $40 charged back and another $40.00 in penalties.

Company may assign the Agreement with or without Publisher's consent. Affiliate may not assign or transfer the Agreement without the prior written consent of Company, which may be withheld for any reason. Any attempt to do so will result in the immediate termination of this Agreement. The Agreement will be binding on, inure to the benefit of and be enforceable against, the Parties' respective successors and assigns. For technical/general questions, please contact: support@TambaMedia.com.