EmailZipCode

AFFILIATE PROGRAM TERMS & CONDITIONS

Updated 1-03-08

These terms and conditions, together with any previously posted amendments, schedules, attachments or exhibits (collectively the "Terms & Conditions") govern your participation as a "Publisher" and member of the EmailZipCode Affiliate Program (the "Affiliate Program"), a non-exclusive, online, performance-based marketing network sponsored by EmailZipCode, LLC. ("EmailZipCode"). As used herein, the terms "you" and "your(s)" shall refer to the corporate or individual entity owning, either directly or indirectly, the referring URL of each Publisher, and the term "Publisher" shall refer to a web site, e-mail or search engine marketer or other distributor of Offers, as defined below.

From time to time, EmailZipCode may amend, supplement or replace entirely these Terms & Conditions by (i) posting updated Terms & Conditions or supplements, amendments or exhibits thereto (collectively the "Updated Conditions") on the EmailZipCode web site and (ii) if, in the reasonable judgment of EmailZipCode, the Updated Conditions are material, notifying each affected party via e-mail at the address specified on the Account Information page of the EmailZipCode web site. Thereafter, the Updated Conditions shall be deemed effective five (5) business days after the later of such posting or e-mail transmission (the "Effective Date") AND you will be conclusively deemed to have consented to, and agreed to be bound by, the Updated Conditions UNLESS your termination notice is received by us prior to the Effective Date; provided, that no Updated Condition will affect your right to receive any Commissions earned by you prior to the Effective Date.

1. The Affiliate Program. EmailZipCode solicits customers on behalf of its advertising clients (a "Client" or the "Clients") through the placement of advertising offers ("Offers") published by members of the Affiliate Program or their "Sub-Publishers," as defined below. Offers may be banners, text links, graphical image files, transactional ads or other electronic promotions of a Client's products and/or services that are published by members of the Affiliate Program.

1.1. Application. You may apply to join the EmailZipCode Affiliate Program by completing the form insertions appearing on the Account Information page of the EmailZipCode web site and then clicking the "Submit" button. By clicking on the "Submit" button you acknowledge that you have read, accepted and agreed to be bound by these Terms & Conditions, as they may be modified from time to time by any Updated Conditions.

1.1.1. Pre-Condition. As a condition to your membership, you represent, warrant and covenant on an ongoing basis, that all of the web sites, emails, advertisements, materials, content, offers promotions or programs owned, controlled, displayed or used by You or your Sub-Publishers in connection with your performance hereunder, shall not contain, display, endorse, market, use or promote any content or material that could be reasonably construed as (i) sexually explicit, promoting or inciting violence, patently offensive, profane, discriminatory, or promoting drug paraphernalia or use; (ii) violating any law or regulation governing (iii) false, misleading, or deceptive advertising, (iv) sweepstakes, (v) gambling; or (vi) containing any trade disparagement, libelous, defamatory or infringing content (any of the foregoing, "Prohibited Material").

In the event EmailZipCode believes, in its sole discretion, that you or your Sub-Publishers have violated, in any way, any of the foregoing restrictions regarding Prohibited Material, you agree and acknowledge that, in addition to any right and remedies available to it pursuant to the Terms and Conditions or under applicable law, EmailZipCode shall not be obligated to pay, and/or you shall irrevocably forfeit any compensation or fees paid or owing, that are directly or indirectly attributable to or derived from your or your Sub-Publisher's breach of obligations hereunder pertaining to Prohibited Material.

1.1.2. Ineligible Websites. Web sites that do not feature customer-friendly site navigation or contain content (including pornographic or hateful content) that EmailZipCode, in its sole discretion, determines does not meet an acceptable commercial or aesthetic standard are not eligible for membership. If EmailZipCode, in the exercise of reasonable discretion, determines your web site to be ineligible, all commissions, whether earned or unearned, shall be forfeited.

1.1.3 Search & Miscellaneous. You shall not: (1) violate terms and conditions of any search engines being utilized; (2) engage in search engine spam, doorway pages, cloaking, etc.; (3) bid on any trademarked names or terms in any pay-per-click/"keyword"/"adword"/campaign unless given express written permission by EmailZipCode or the trademark owner; (4) use Google Adwords depicting the
Emailzipcode Link specifically, or (5) conduct search ads falsely suggesting a link between EmailZipCode and a third-party or otherwise infringing on a third-party's intellectual property or privacy rights.

1.2. Membership. Your membership in EmailZipCode's Affiliate Program will commence on the date your application is approved by the Affiliate Manager, and will continue unless terminated by one of us. Membership is limited to the specific URL(s) provided by you to EmailZipCode in the Account Registration section of the EmailZipCode web site. Please note that EmailZipCode reserves the right to terminate an existing membership in its sole discretion, for any reason or for no reason at all.

1.2.1. User Name and Password. Upon submission of your application, you will automatically be issued a user name and a password. Your use of these identifiers is limited only to you, and may not, under any circumstances, be distributed to any other person, including without limitation any Sub-Publisher.

1.3. Special Rules Governing Sub-Publishing. A member of the Affiliate Program may solicit non-member Publishers to distribute Offers (collectively "Sub-Publishers"), provided that each Sub-Publisher must agree specifically to be bound by the restrictions and conditions set forth in Sections 1.1.1, 1.1.2, 1.1.3, 1.3.2, 1.4, 1.5, 2.1, 5, 6.2 and 8.2.

1.3.1. Relationship among Publisher, Sub-Publisher(s) and EmailZipCode. Each Sub-Publisher shall, for purposes of these Terms & Conditions, be deemed to be an agent of the Affiliate Program member, with the Affiliate Program member responsible in all respects for the activities of its Sub-Publishers. Any breach by your Sub-Publishers of these Terms & Conditions shall be deemed a breach by you. It is understood and agreed between you and EmailZipCode that (i) EmailZipCode is not and shall not be party to any agreement between you and any Sub-Publisher, (ii) you are not authorized to make any commitments on behalf of EmailZipCode to any Sub-Publisher, including but not limited to any payment or other commitment by EmailZipCode, and (iii) no license other than the license set forth in Section 2.2 may be extended by you to any Sub-Publisher.

1.3.2. No Third-Party Beneficiary Status. Nothing in EmailZipCode's permission to engage Sub-Publishers may be construed as extending to any Sub-Publisher the status of third-party beneficiary of any agreement between EmailZipCode and you, including without limitation these Terms & Conditions.

1.4. Special Rules Governing E-Mail Campaigns. By accepting membership in the Affiliate Program you agree to refrain from originating, authorizing or participating in any non-consensual campaigns or promotions, whether by e-mail, telephone or otherwise, including but not limited to "spamming." Without limiting the foregoing, you specifically agree to the following:

1.4.1 Email sent as part of a email campaign on EmailZipCode's behalf (each, an "Email Campaign") may be sent only to those recipients who have agreed in advance to receive such transmissions from you at the email address to which the email will be sent (i.e."opted-in").

1.4.2 You are responsible for the source, content and use of your email list. Email addresses may not be obtained by the use of a program for random generation of email addresses and/or "scraping" web sites or online services.

1.4.3 At least seven (7) business days prior to the start of any proposed Email Campaign, you will provide EmailZipCode with the following:

a) The subject line, body, graphics and other creative elements, both in the complete form to be viewed by the intended recipients and in source code, for each email in the proposed Email Campaign;

b) The email address(es) from which the emails in the proposed campaign will be sent; and

c) The proposed dates that the emails in the Email Campaign will be sent.

1.4.4. Not later than three (3) business days prior to the start of any proposed Email Campaign, EmailZipCode shall provide you with written approval or rejection of such Email Campaign. You will not run any portion of any Email Campaign rejected by EmailZipCode.

1.4.5. You must update your email list against EmailZipCode's suppression list at least twice per week during the Email Campaign.

1.4.6. You may not send email that contains a sender name or email address that does not accurately identify you as the sender.

1.4.7. You may not send email from invalid originating domains.

1.4.8. You may not make use of multiple originating domains or multiple originating email addresses for the purpose of circumventing spam filters or blacklists.

1.4.9. You may not knowingly incorporate an intended recipient's name and/or email address into the "from" field for the purpose of circumventing spam filters or blacklists.

1.4.10. You may not use a Client's name (including any abbreviation thereof) in the originating email address line or subject line of any email transmission. Your use of Offers in emails is further restricted by the provisions of Section 2 hereof.

1.4.11. You may not falsify email header information; make use of false registrations for email accounts or IP addresses or retransmit of email for the purpose of concealing its origin.

1.4.12. You may not relay or retransmit email from a computer or computer network that was accessed without authorization.

1.4.13. Subject lines, when taken word by word and as a whole, may not be false or likely to mislead a reasonable recipient as to the contents or subject matter of the message. You may only use, without alteration, approved subject lines available in EmailZipCode's Affiliate login area or other subject lines for which you have documented approval from EmailZipCode.

1.4.14. Email containing advertisements or solicitations must identify itself as such and do so by clear and conspicuous means; for example, but not by way of limitation, by stating in the message body "This advertisement is brought to you by (Your Company)".

1.4.15. You must identify yourself as the initiator and sender of the email in the body of the email, including company name, email and physical mailing address, in a clear and conspicuous text and font size.

1.4.16. Each email must clearly explain that the recipient may opt-out of receiving future email from you and from EmailZipCode by making use of separate unsubscribe links in the body of the email (one unsubscribe link to an email address specified by EmailZipCode and one unsubscribe link to you), as well as an explanation that the recipient must unsubscribe using both links to opt-out of receiving future emails from both parties. Opt-out explanations and links must be displayed in a clear and conspicuous font size and color. The recipient cannot be required to make any payment or submit any personal information in order to opt-out. Your unsubscribe link must be fully functional for the duration of the Email Campaign and for a minimum of thirty (30) days after the last email in the Email Campaign is delivered. If a "menu" of opt-out choices is made available to recipients, one of the options must be to allow the recipient to opt-out of all future email from the sender. The opt-out mechanism must be configured to be accessible and operational with the lowest common denominators of browser and Internet connection (i.e. no JavaScript, no Flash, no rich media, etc.).

1.4.17. Once an opt-out request is received, you must stop sending email to the requestor's email address within ten (10) business days.

1.4.18. You may not sell, transfer or otherwise provide opted-out email addresses to third parties, whether for continued emailing as part of the Email Campaign or any other purpose other than updating email suppression files.

1.4.19. In the event that EmailZipCode or a Client receives a complaint from any recipient of an Offer transmitted by you, upon our request, you will immediately provide us with appropriate records verifying that recipient's consent to receive email transmissions from you. Such records include, but may not necessarily be limited to, the Internet address of your opt-in/opt-out web site, the date of the recipient's action and your privacy policy.

1.5. Special Rules Governing Click-Through Deals. From time to time, a Client may request a campaign wherein payment is based not on customer conversion but on the number of recipients clicking on an Offer (a "click-through rate" or "CTR").

1.5.1. For any CTR deal, you will not employ any device that has the effect of inflating the click-through rate, including but not limited to automatic page-spawning, automatic redirects, "robots" or incentives offered to any recipient.

1.5.2. EmailZipCode reserves the right to audit any web site traffic at any time and for any reason, or no reason at all. Should EmailZipCode determine, in the exercise of its reasonable business judgment, that you have employed any device to artificially inflate the click-through rate, (i) your membership in the Affiliate Program will be immediately terminated, (ii) any unpaid Commissions attributable to the subject CTR deal will be immediately voided, whether or not earned and (iii) upon demand, you will return to EmailZipCode immediately any Commissions attributable to the subject CTR deal that had been previously paid.

2. Offers. You may use your user name and password to access your account and the EmailZipCode website to access the EmailZipCode Offer library. The EmailZipCode Offer library contains Offers along with associated commission schedules and restrictions or conditions specific to each Offer (including, but not limited to, restrictions on incentives that may be associated with any Offer) that may be downloaded by you only for the purposes described therein for traffic within the United States only. Placement of any Offer shall be at your sole discretion, provided that, absent our specific written consent, which may be withheld for any reason or no reason at all, no Offer may be published in chat rooms or on message boards. Where specified flight dates for an Offer is set and/or units capped, you shall not place Offers after either limitation is met. You also shall not run an Offer after EmailZipCode has posted new creative materials to run in lieu of such Offer. EmailZipCode reserves the right to pay you only for units delivered using the proper creative materials and/or within the flight dates or unit limitations. IT IS YOUR SOLE RESPONSIBILITY FOR YOU TO MONITOR THE OFFER LIBRARY FOR UPDATES/CHANGES TO OFFERS (INCLUDING THE CREATIVE COMPONENTS AND/OR FORMAT) OR WHEN AN OFFER IS NO LONGER AVAILABLE, HAS EXPIRED OR HAS NO UNITS REMAINING FOR DELIVERY AND TO NOTIFY YOUR SUB-PUBILSHERS OF SUCH CHANGES, AVAILABIILITY OR EXPIRATION. EmailZipCode ASSUMES NO RESPONSIBILITY TO NOTIFY YOU WHEN AN OFFER (i) HAS EXPIRED OR BEEN SUPERCEDED OR (ii) IS NO LONGER ELIGIBLE FOR PAYMENT DUE TO VOLUME OR COMMISSION CAPS.

2.1. Integrity of Offers. You may not add, subtract or in any way alter or edit any Offer (including, for this purpose, any machine-readable code which may be a part of any Offer), nor may you make any use whatsoever of any Offer other than for the purposes of, and as contemplated by, this Agreement. Offers may only be published in accordance with the terms and restrictions associated therewith.

2.2. Limited License. EmailZipCode hereby grants to you a limited, non-exclusive, non-transferable (except in accordance with Section 1.3.1), revocable, worldwide right to (i) download one or more Offers for posting on your web site and (ii) use, in connection with publishing such Offers, all copyrighted, trade or service marked or other protected intellectual property contained therein for the purposes described in this Agreement; provided, that (i) the content of your web site(s) are not libelous, defamatory, infringing, pornographic, or offensive to the general public, (ii) are compliant with Section 1.1.1 and 1.1.2, (iii) all right, title and interest in the Offer is exclusively owned by Client and that you have no right other than the limited right to display such Offer as sublicensed by EmailZipCode, and (iv) you will not modify or alter the Offer in any manner other than as directed by EmailZipCode subject to EmailZipCode's obligations to Client.

3. Compensation. EmailZipCode will pay you commissions by check within 15 days of the end of each month ("Commissions") in the amounts set forth in the commission schedule associated with each Offer and posted in EmailZipCode's reporting system. Commissions will be payable only for Offers published by you that result in sales, leads or customer acquisition (as the case may be) for a Client, and only after the commissions have been "earned." Commissions paid will be net of any and all charge-backs or returns. It is your responsibility to advise us immediately of any change in any of the information furnished by you as part of your application. In the case of CTR deals, Commissions will be specified in a specific schedule e-mailed to you. As a condition to EmailZipCode's obligation to make payments hereunder to You, You must have on file with EmailZipCode a completed and accurate W-9 (for US-based Publishers) or a completed and accurate W-8 (for non-US-based Publishers). Payments will be withheld until the appropriate taxation documents are received by EmailZipCode.

3.1. When Commissions are Earned. Commissions will not be "earned" until EmailZipCode receives payment from the Client. Notwithstanding the foregoing, EmailZipCode may elect to advance to you commissions prior to those commissions having been earned. You acknowledge and agree that your receipt of commission payments prior to those payments having been earned is conditional and subject to EmailZipCode's right to demand return of unearned commissions for any reason or for no reason at all.

3.2. EmailZipCode Records to Control. EmailZipCode maintains records of all traffic passing over the Affiliate Program and will provide You with a login page which gives you real time information on your current Offers. EmailZipCode's records shall govern all interpretations made under this Agreement, including but not limited to the calculation of Commissions.

3.3. Minimum Commission Requirement For Regular Payment. EmailZipCode shall not be obligated to make any payment of Commissions to you unless the amount of earned Commissions exceeds one hundred dollars ($100.00) in the aggregate per month. Earned but unpaid Commissions equal to or less than one hundred dollars ($100.00) in the aggregate per month will not be carried over to the next regularly scheduled payment period.

3.4. Suspension of Payment. If EmailZipCode determines, in the exercise of its reasonable business judgment, that you are in breach of any material term of this Agreement, EmailZipCode will (i) use commercially reasonable best efforts to notify you promptly of such breach and (ii) suspend any payment of any earned but unpaid Commissions until such breach has been cured.

4. Affiliate Monitoring.

4.1 At EmailZipCode's request at anytime as part of your participation in the Affiliate Program, you will provide EmailZipCode with:

(a) if you are a natural person, your complete legal name, physical address, mailing address and a working telephone number.

(b) if you are a corporation, partnership, proprietorship, limited liability company or other organization or legal entity, including an association, cooperative, agency, or other group or combination acting as an entity, you will provide EmailZipCode with the name(s), address(es), mailing address(es) and working telephone number(s) of the natural person(s) who owns, manages, or controls you;

(c) if the natural person(s) described in subsections (a) or (b) above resides in the Unites States, you will provide EmailZipCode with a photocopy of that person's driver's license or other U.S. government issued identification document; and

(d) if the natural person(s) described in subsections (a) and (b) above resides outside of the United States, you will provide EmailZipCode with a photocopy of a government issued identification document for such person.

You shall provide EmailZipCode with the identifying information required by the section above for each of your Sub-Publishers prior to their initiation of any email on EmailZipCode's behalf and immediately after any change to your Sub-Publishers.

4.2 You acknowledge that EmailZipCode may require every tenth new customer directed to EmailZipCode's web sites, prior to that customer first accessing the content of EmailZipCode's web sites and prior to that customer submitting any personal or payment information, to indicate whether or not the customer had been directed to EmailZipCode's web site by an email sent on behalf of EmailZipCode. If a customer indicates that he or she had been directed to EmailZipCode's web site by an email sent on behalf of EmailZipCode, you will, if requested by EmailZipCode, provide EmailZipCode a copy of such email and take all other steps reasonably necessary to allow EmailZipCode to effectively monitor your continued compliance with the CAN-SPAM Act and Section 17529.5 of the New Jersey Business and Professions Code.

4.3 You acknowledge and agree that EmailZipCode may monitor your activity via (i) seeding, (ii) utilizing third party monitoring tools (e.g. Lashback) or (iii) the right to impersonate.

5. Confidentiality. All information relating to your participation in the Affiliate Program, including but not limited to your unique user name and password, the identities of any EmailZipCode Client, EmailZipCode's commission rates and pricing strategies, any calculation of amounts paid to you hereunder and the number of sales, leads or customers acquired by you for any Client, shall be considered proprietary information of EmailZipCode, shall be held in strictest confidence by you and will not, without the prior written consent of EmailZipCode, be disclosed by you to any other person, in any manner whatsoever, in whole or in part, and will not be used by you directly or indirectly for any purpose other than confirming the correctness of the commission calculation.

5.1. Ownership and Proprietary Nature of Data and Reports. All data, including but not limited to campaign results, user data, statistical information, traffic analysis or other data produced or provided by you, shall be deemed to be the property of EmailZipCode.

5.2. Use of Personal Data. EmailZipCode currently uses and plans to continue to use some or all of the data collected through the operation of the Affiliate Program in an aggregate manner (i.e. information aggregated into demographic data and not personally identifiable). The use of personally identifiable user data will be governed by EmailZipCode's privacy policies, as posted on EmailZipCode's web site and as modified from time to time.

6. Covenants

6.1. Covenants of EmailZipCode. EmailZipCode covenants and agrees to use its commercially reasonable best efforts: (i) to provide, monitor and maintain the necessary technology applications required to link you to the Client web sites; (ii) to provide you with Offers in appropriate format; and (iii) to provide changes to Offers or cancellations as quickly as is commercially feasible in advance of requested change date or time.

6.2. Your Covenants. You covenant and agree to use your commercially reasonable best efforts: (i) to continue to operate and maintain your distribution channels (including any web pages where any Offer appears) in a manner consistent with the intent and purpose of this Agreement; (ii) to place Offers in your distribution channels in accordance with the terms set forth in this Agreement; (iii) to respond to any change notice promptly and, in any event, within one business day from EmailZipCode's transmission of such change notice to you; and (iv) to maintain your customer list in a manner that conforms with best practices of opt-in solicitation and privacy policies. You further agree to advise us immediately of any changes to any of the information you provided as requested or required herein.

6.2.1. Limited Promotional License. You hereby grant EmailZipCode a limited, non-exclusive, revocable, worldwide license for the term of this Agreement to use, reproduce and distribute your company name and logo for use in our promotional materials.

6.2.2. Non-Competition. You shall not, during the term of this Agreement and for three (3) months thereafter, implement any cost-per-action ("CPA") agreements with any Client with whom you did not have a previously existing CPA agreement.

7. Termination. This Agreement may be terminated by either of us at any time and for any reason or for no reason at all. Termination may be effected by delivery to the non-terminating party of appropriate notice, delivered via e-mail, fax or other means of public communication, and will be effective on the earlier of (i) receipt by the non-terminating party or (ii) three (3) business days following the sending of the termination notice.

7.1. Responsibilities Following Termination. Immediately upon termination, you will (i) remove any and all Offers from any web site owned or operated by you and/or (ii) suspend any e-mail campaign that has not already been sent. As a precondition to receiving any earned but unpaid compensation you will certify to us, via e-mail, that this condition has been met within two (2) business days following termination.

8. Liability Policies and Indemnification.

8.1. Warranties. EXCEPT AS EXPLICITLY SET FORTH HEREIN, NO WARRANTIES ARE MADE BY EITHER OF US AS TO THE SERVICES OR TECHNOLOGY DESCRIBED IN THIS AGREEMENT AND EACH PARTY HERETO EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AS IT RELATES TO THE TECHNOLOGY AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT.

8.2. You represent and warrant that you shall comply at all times with all applicable Federal and State laws, rules and regulations including, without limitation, laws governing unfair trade practices, deceptive or misleading advertising, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the "CAN-SPAM" Act), Section 17529.5 of the New Jersey Business and Professions Code and the Gramm-Leach-Bliley Act of 1999. You shall create, maintain and retain the records and documents reasonably necessary to demonstrate full compliance with each provision above.

8.3. Limitation on Damages. Except for the indemnification provision in Section 8.4., neither of us shall be liable to the other for any special, consequential (even if a party has been informed of the possibility of such damages), incidental, punitive or indirect damages, losses (including lost or imputed profits), costs or expenses of any kind arising out of these Terms & Conditions or your participation in or termination from the Affiliate Program, however caused, and whether based in contract, tort (including negligence), products liability or any other theory of liability regardless of whether such party has been advised of the possibility of such damages, losses, costs or expenses. Except for liabilities resulting from willful misconduct or recklessness, any liability of one of us to the other shall not exceed the total amount of the Commissions actually paid by EmailZipCode to you with respect to your participation in the Affiliate Program.

8.4. Indemnification. You are solely responsible for any legal liability arising out of or relating to (i) your web site(s); (ii) any material to which users can link through your web site(s); and (iii) any consumer and/or governmental regulatory complaint arising out of any campaign conducted by you, including but not limited to any CAN SPAM or fraud complaint and or any complaint relating to failure to have proper permission to conduct such campaign to the consumer. You agree to indemnify EmailZipCode and its Clients, without limitation, for any costs, charges, fines, expenses, settlements or other liabilities resulting from any violation, intentional or otherwise, by you or any of your Sub-Publishers of the undertakings, responsibilities, covenants, representations and warranties of the foregoing and those contained in Sections 1.3, 1.4, 1.5, 2, 2.1, 5, 6.2(iii), 6.2.2, 7.1. and 8.2.

9. Dispute Resolution. In the event of disputes between us arising from or concerning in any manner the subject matter of these Terms & Conditions or your participation in or termination from the Affiliate Program, we shall first attempt to resolve the dispute(s) through good faith negotiation. In the event that the dispute(s) cannot be resolved through good faith negotiation, the parties shall refer the dispute(s) to a mutually acceptable mediator for hearing in Essex County, New Jersey. Thereafter, if mediation cannot resolve the dispute(s), we shall submit the dispute(s) to the American Arbitration Association for resolution through binding arbitration by a single arbitrator pursuant to the American Arbitration Association's rules applicable to commercial disputes. The arbitration shall be held in Essex County, New Jersey, and the decision reached by such arbitrator shall be entered as a judgment in any court of competent jurisdiction. The prevailing party in any dispute between the parties arising from this Agreement or other matter shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with such dispute.

10. Miscellaneous.

10.1 Integration, Severability & Governing Law. Subject to any past or future publication of Updated Conditions, your account information (including but not limited to your record of submission) and these Terms & Conditions (including any Updated Conditions) are the sole and complete agreement covering the subject matter hereof. Any provision if deemed unenforceable by a competent court of jurisdiction may be deleted, leaving the remainder of the agreement operable and in effect. This agreement is made in accordance with and governed by the laws of the State of New Jersey.

10.2. Transferability. Your right to participate in the Affiliate Program is non-transferable. EmailZipCode may transfer its rights to the Affiliate Program without restriction.

10.3. Public Statements. Any press release or other public announcement by you regarding your participation in the EmailZipCode Affiliate Program shall require the prior approval of EmailZipCode.

10. Force Majeure. Neither of us shall be deemed in default of these Terms & Conditions to the extent that performance of our 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; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within three (3) business days of such event or occurrence.

10.5. Relationship. The relationship between us established by these Terms & Conditions is that of non-exclusive independent contractors. Neither of us may represent to any third party, or otherwise be deemed to be, an employee, agent, partner or joint venturer with respect to the other.

10.6. Notices. Unless otherwise specified herein, any notice, communication or statement relating to these Terms & Conditions shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by verified facsimile transmission; or (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 above.

10.7. Waiver. The failure of either party to insist upon or enforce strict performance by the other or to exercise any right under these Terms & Conditions 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.

10.8. Survival. Sections 3.2, 5, 7.1, 8.2, 8.3 and 9 shall each survive the termination of your participation in the Affiliate Program.

10.9. Corporate Authority; Non-Breach. Each party represents and warrants to the other that: (i) such party has all necessary right, power and authority to agree to these Terms & Conditions and to perform its obligations hereunder; and (ii) nothing contained in these Terms & Conditions or required by such party's performance hereunder will place such party in breach of any other contract or agreement to which it is bound or violate any applicable law, including obscenity, privacy and defamation laws and (iii) the performance of either party's obligations under these Terms & Conditions shall not infringe or violate upon the Intellectual Property or privacy rights of any third party.