EFFECTIVE DATE: April 17, 2007

 

DOMAIN PARKING TERMS AND CONDITIONS

These Domain Parking Terms and Conditions ("Agreement") govern the services provided by Parking Empire, a division of Media Breakaway, LLC, a Nevada limited liability company with offices at 1490 W. 121st Ave., Ste. 201, Westminster, CO 80234 (“Media Breakaway”). By using the services and becoming a domain marketer to Parking Empire, you (“Domain Owner” or “Publisher”) agree to be bound by this Agreement.

This Agreement may be amended from time to time in Media Breakaway’s discretion and pursuant to applicable law. Amended versions of this Agreement will be effective upon posting at www.ParkingEmpire.com.

1. Definitions:

As used in this Agreement, the following terms shall have the meanings set out below or as defined elsewhere in this Agreement:

 

Advertiser: means an entity that submits Offers and Creatives for placement in the Media Breakaway network for the purpose of marketing, advertising and Lead generation.

 

Consumer: An individual who responds to an Offer and who effects a Lead through the Domain Owner Web Site(s).

 

Creative: means a graphic file(s) or creative work made available to Domain Owner for use in an Offer.

Domain means any rights the Domain Owner may possess with regard to the registration of a particular Domain Name under its domain name registration agreement with a domain name registrar or other service provider as well as any content available at or through a particular URL.

Domain Name means the Domain legally and rightfully owned by Domain Owner and marketed by Domain Owner under this Agreement. 

Domain Owner Web Site means the website which is legally and rightfully owned by Domain Owner and marketed by Domain Owner under this Agreement.

 

Intellectual Property Rights means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered, and whether first made or created before or after the date hereof.

Invalid Leads mean fraudulent, incomplete or duplicate Leads as further defined herein. Fraudulent Leads shall include Leads that result from Domain Owner or its sub-publishers engaging in the entry of Consumer information without the consent of the actual Consumer such as adding leads or clicks or inflating leads or clicks by fraudulent traffic generation such as pre-population of forms or mechanisms not approved by Media Breakaway. Incomplete Leads include Leads in which the information sent to Media Breakaway does not contain the data or information required by Media Breakaway or its Advertisers. Duplicate Leads includes Leads that Domain Owner sends to Media Breakaway that contains identical information Domain Owner has previously sent to Media Breakaway.

 

Lead(s) means any Lead or activity specified by Media Breakaway and its Advertisers and taken by a Consumer, for which Media Breakaway is to compensate Domain Owner.

 

Offer means the advertisements made available from time to time by Media Breakaway in graphic or text file(s) and published on the Domain Owner Web Site by Domain Owner.

 

2. Services.

 

2.1 Media Breakaway hereby grants Domain Owner the limited, non-exclusive and revocable right to publish certain Offers and Creatives on the Domain Owner Web Site for the purpose of monetizing the Domain Name through the generation of Leads, in accordance with (i) the terms and conditions set forth in this Agreement and (ii) any additional terms of a particular Offer as specified by a Media Breakaway Advertiser.

2.2 Media Breakaway may make available to Domain Owner a component of the Service whereby Domain Owner is given the opportunity to select a keyword for each of its Domain Names which relate to the subject matter of the Domain Name and which will control the nature of the Offers and Creative appearing on the Domain Owner Web Site for the respective Domain Name. Media Breakaway reserves the right to examine, change and/or disable advertising keywords at any time, without notice, and at its sole discretion to ensure relevancy in relation to the respective Domain Name(s).

2.3 Media Breakaway may make available to Domain Owner a component of the Service whereby Domain Owner elects for Media Breakaway to monetize the Domain Owner Web Site through the generation of Leads. Media Breakaway will use its proprietary system to place relevant Offers on the Domain Name Web Page. Domain Owner grants Media Breakaway an exclusive license to use the Domain Name for such purpose, and Media Breakaway shall determine in its sole discretion which Offers and Creative to place on the Domain owner Web Site. Media Breakaway makes no representation or warranty that the Domain Owner Web Site shall generate any specific amount of revenue.

3. Term and Termination. Either party may terminate this Agreement on three business days’ advance notice to the other party. In the event either party in good faith believes that the other party is in violation of applicable law or in breach of any terms of this Agreement, such party shall have right to terminate the Agreement immediately upon written notice to the other party. Media Breakaway further reserves the right to terminate this Agreement and Domain Owner’s participation in the services hereunder without prior notice to Domain Owner.

4. Payment. If Domain Owner generates at least $1,000 revenue each week, Domain Owner may take advantage of Media Breakaway weekly wire payment, less applicable wire fee. If Domain Owner does not generate at least $1,000 per week in earnings, then Media Breakaway will pay Domain Owner by the twentieth day of the month following the month in which payment is received by Media Breakaway. Payment is contingent upon Media Breakaway’s receipt of payment from the Advertiser. Delinquent Advertiser payments received by Media Breakaway will be credited to the Domain Owner in the month that they are received. All commissions are based upon the number of Leads reported by Media Breakaway and as recorded in ParkingEmpire.com. Media Breakaway may withhold payment to Domain Owner in the event that Media Breakaway determines that Domain Owner has engaged in unauthorized activity or the generation of Invalid Leads. Media Breakaway determines in its sole discretion unauthorized activity and Invalid Leads.

5. Domain Owner Obligations.

5.1 Domain Owner shall not modify or alter any Offer or Creative in any manner. Domain Owner will only run approved banners and text in its advertising of Offers and will not create its own banners or advertising text based on the Creative or Offer, unless expressly approved in writing from Media Breakaway. Any other use of Offers or Creative will result in the loss of payment of Leads.

5.2 Domain Owner represents and warrants that it will at all times comply with the following requirements:

(A) Domain Owner shall not place an Offer with inappropriate content, which includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal substances, nudity, sex, pornography, adult-oriented content such as phone sex or escort services, expletives or inappropriate language; (ii) promotes gratuitous violence, abuses or threatens physical harm; (iii) promotes illegal or unethical activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, investment and money-making opportunities or illegal advice; (iv) promotes use of illegal substances or activities such, how to build a bomb, counterfeiting money and software pirating (e.g., Warez, Hotline); (v) is libelous, defamatory, infringing, false, misleading or contrary to public policy; (vi) is otherwise prohibited by Federal or state law; and/or (vii) may bring Media Breakaway and/or its associated Advertisers negative publicity.

(B) Any spoofing, redirecting or trafficking from adult-related websites in an effort to gain traffic or websites that are point, lottery or rewards based and encourage users to click on Offers or use Offers to generate revenue for users to win points, get rewards, or other incentives are prohibited unless expressly approved in writing from Media Breakaway.

(C) Statements and/or Leads knowingly made that would result in civil or criminal liability of Media Breakaway are expressly prohibited.

(D) Domain Owner shall at no time, engage in, disseminate, promote or otherwise distribute any Offer through the use of contextual media, specifically downloadable software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable).

(E) Domain Owner shall not violate any third party terms and conditions, which includes, but is not limited to (i) unauthorized use of a third party web site for commercial gain or (ii) posting bulletins to non-owned accounts.

(F) Domain Owner shall not use deceptive or misleading practices such as the use of spyware, adware, devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a Consumer is generating a Lead.

(G) Domain Owner shall not engage in any deceptive form of advertising which includes, but is not limited to, phishing, sending an email to an individual falsely claiming to be an established legitimate enterprise in an attempt to scam or defraud the user into surrendering private and personal information that can be used for identity theft, or any other activity.

 

5.3 Domain Owner further represents and warrants that:

(A) Domain Owner has registered the Domain Name with the appropriate Domain registrar or other registration authority.

(B) Domain Owner’s registration of the Domain Name is current and not subject to deletion, cancellation, rescission or deactivation by the applicable Domain registrar or other registration authority.

(C) The Domain Name has not been used in such a manner as to infringe the rights of any third party, including, but not limited to, trademark naming or publicity rights.

(D) The Domain Name is not the subject of any legal disputes or proceedings challenging Domain Owner’s right to register or use the Domain Name.

(E) Domain Owner nor its agents, employees, family members or other related parties shall generate a Lead on the Domain Owner Web Site with the intent of driving revenue to the Domain Owner Web Site.

(F) Domain Owner may not ask, entice or provide incentives for Consumers to generate Leads on advertising links or Offers on the Domain Owner Web Site.

(G) Domain Owner may not re-direct traffic to the Domain Owner Web Site. This prohibition includes, but is not limited to, traffic redirected from other domain names, traffic originating from advertising and purchased traffic such as pop-under or exit traffic. Each domain name must be parked separately.

6. Mutual Representations and Warranties. Each party represents and warrants to the other party that (i) such party has the full corporate or organizational right, power, and authority to enter into the Agreement and to perform the acts required of it, (ii) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable federal, state or municipal law or regulation to which it is subject, (iii) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards; and (iv) each party owns or has the authority and valid license to use all intellectual property and content on its website(s).

 

Each party represents and warrants that it is fully compliant with applicable privacy laws. Each party shall provide notice for, and fully disclose, its respective privacy policy and practices to visitors to its website(s).

7. Limitation of Damages and Liability and Indemnification.

A. Except as expressly set forth in this Agreement, NEITHER PARTY makes ANY warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. THE SERVICE IS PROVIDED BY MEDIA BREAKAWAY ON AN “AS IS” BASIS. IN NO EVENT SHALL MEDIA BREAKAWAY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS OR REVENUES, OR HARM TO BUSINESS) EVEN IF IT HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MEDIA BREAKAWAY'S LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY, BE GREATER THAN THE TOTAL AMOUNT PAID WITHIN THE PRIOR SIX MONTHS BY MEDIA BREAKAWAY TO DOMAIN OWNER HEREUNDER.

B. Domain Owner is solely responsible for any legal liability arising out of or relating to the Domain Name or the Domain Owner Web Site. Domain Owner shall indemnify, defend, and hold harmless Media Breakaway and its members, officers, directors, agents, affiliates, vendors, suppliers, Advertisers and employees (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of the Indemnified Parties by reason of or related to a claim, suit, action or proceeding (i) that the Domain Name constitutes an infringement of a patent, copyright, trademark or other Intellectual Property Right, (ii) relating or connected to the violation of any law, statute, ordinance, rule, or regulation throughout the world in connection with the Domain Name, the Domain Name Web Site and Domain Owner’s marketing activities hereunder or (ii) arising out of any breach by Domain Owner of any duty, obligation, covenant, representation or warranty under this Agreement. Media Breakaway shall indemnify, defend, and hold harmless Domain Owner and its officers, directors, agents, affiliates and employees (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of the Indemnified Parties by reason of or related to a third party claim, suit, action or proceeding arising out of Media Breakaway’s breach of its representations or warranties made in this Agreement.

8. Confidential Information. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and to refrain from disclosing the other party's Confidential Information to any third-party, unless (a) any disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any disclosure is required by applicable law; provided, that the receiving party uses reasonable efforts to give the disclosing party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (c) any disclosure is made with the consent of the disclosing party. For the purposes of this Agreement “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Advertisers, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Notwithstanding the foregoing, Domain Owner agrees that Media Breakaway may divulge its personal and/or otherwise Confidential Information to an Advertiser, agency, legal or regulatory authority, person or entity relating to investigations, claims or actions that Domain Owner has violated this Agreement or any applicable law or regulation.

 

9. Ownership. Notwithstanding anything to the contrary herein, each party acknowledges and agrees that with respect to Intellectual Property Rights, ownership thereof is not being transferred under this Agreement.

 

10. Notice of Trademark or Copyright Usage. If either party receives a request to cease and desist from any activity pertaining to the Domain Owner Web Site and/or the Domain Name, including but not limited to, Intellectual Property Rights of a third party, it shall provide the other party with written notice that it has received such request within twenty-four (24) hours. Media Breakaway reserves the right to immediately suspend the Services without prior notice. In the event the Domain Name becomes the subject of a claim of infringement or other claim regarding Domain Owner’s right to the Domain Name, either party may terminate this Agreement upon prior written notice to the other, with no liability to Media Breakaway.

 

11. General.

Governing Law. The rights and obligations of the parties under or arising out of this Agreement shall be governed by and construed under the laws of the State of Colorado without reference to its conflict of laws principles.

Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, terrorism, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.

Relationship. The relationship of Domain Owner and Media Breakaway established by this Agreement is that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other.

Notice. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile or confirmed electronic transmission; (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of the respective party as indicated herein; or (iv) in the event of material changes to this Agreement, notice shall be deemed effective upon posting at www.ParkingEmpire.com. Copies of all notices shall be sent to Media Breakaway, LLC, 1490 W. 121st Ave., Ste. 201, Westminster, CO 80234, Attn: Legal Department. Notices shall be delivered to Domain Owner at the most recent electronic or street address on file with Media Breakaway.

Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect.

Amendment. Changes, amendments or modifications of any provision of this Agreement shall be valid upon posting at www.ParkingEmpire.com.

Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and merges all prior discussions and writings between them with respect to the contents of this Agreement. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement shall remain in full force and effect and bind the parties according to its terms.

Dispute Resolution. In the event of disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, the parties shall first attempt to resolve the dispute(s) through good faith negotiation. The prevailing party in any action shall be entitled to recover its reasonable attorneys’ fees and costs incurred. Further, in the event of a dispute resulting in resort to litigation, each party consents to the exclusive jurisdiction of the federal and state courts in Denver, Colorado, USA and any such litigation will be brought within such courts.

Survival. Any obligation of the parties relating to limitations on liability, confidentiality and indemnification shall survive termination or expiration of this Agreement.

Interpretation. Each party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either party by reason of its drafting.