Search Publisher Agreement

Updated: April 26, 2006

This Lookster Publisher Agreement (this "Agreement"), by and between Lookster™ (hereinafter, "Lookster"), a United Kingdom company, and the undersigned entity (hereinafter, "Publisher") is made as of the date set forth below.

Recitals.

Whereas, Lookster is a developer of proprietary software, and engages in business relationships to distribute paid advertiser content over the Internet; Whereas, Publisher is the owner of a website or search engine and provides its Users with the ability to search the Internet for relevant content by initiating Queries.
Now therefore, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. Agreement Definitions.

The following terms shall have the meanings ascribed to them in this Section.

a. "Bid Amount" is the gross revenue earned by Lookster when a Paid Listing receives a Valid Click.
b. "Bot" or "Spider" means as a software program that executes searches or click-throughs that were not initiated by Users.
c. "Click" means the event which occurs when a User clicks on a Paid Listing and is redirected to the appropriate advertiser website after initiating a Query.
d. "Earned Revenue" is the amount earned by Publisher for each Valid Click and is calculated for each Valid Click by multiplying the Bid Amount of a Paid Listing times the Revenue Share Percentage.
e. "Intellectual Property" shall include all source code, paper or electronic documentation, methods of display, methods of operation, trademarks, service marks and trade names of Lookster.
f. "Keyword" or "Keyword Phrase" means a word or string of words entered by a User in order to initiate a Query.
g. "Keyword Hypertext Link" means a Keyword or Keyword Phrase contained on the Publisher Website(s) that upon a User click-through would query Publisher’s search engine.
h. "Network" is any group of computers connected to the Internet.
i. "Paid Listing" means any text-based link distributed through the Intellectual Property that generates revenue when a User clicks on such text-based link and is redirected to the appropriate advertiser website.
j. "Publisher Website(s)" means any Internet property owned by Publisher or an affiliate of Publisher, used in connection with distributing Paid Listings in accordance with the terms and conditions of this Agreement.
k. "Query" means a search initiated by a User of the Search Box or via clicking on a Keyword Hypertext Link contained on the Publisher Website(s).
l. "Revenue Share Percentage" means forty percent (40-50%) of each Bid Amount generated from the Publisher Website(s) during the Term or any Renewal Term of this Agreement.
m. "Search Box" means an HTML based form by which Users can enter text-based Keywords or Keyword Phrases to query Publisher’s search engine.
n. "User" means a user of the Publisher Website(s).
o. "Valid Click" means a Click that conforms to the terms, conditions and restrictions set forth in this Agreement.

2. Acceptable Use.

Publisher agrees to the following acceptable use policies:

a. Publisher may use or display Paid Listings only in the format provided to Publisher by Lookster, and in the size, placement and manner that complies in all respects with Lookster’s guidelines as described herein or as may be modified in writing, or electronically, from time-to-time by Lookster, in its sole discretion.
b. Lookster does not accept any form of SPAM and detects and discards all Clicks from unsolicited e-mail, newsgroups, ICQ, unauthorized adjustment of browser toolbars, default home pages, search features within standard browser settings and all other methods of generating Clicks other than those generated from Users.
c. Unless otherwise agreed to in writing by Lookster™, Publisher shall only maintain one agreement with Lookster with regard to the subject matter hereof, provided that Publisher may use one account for multiple Publisher Website(s).
d. Publisher Website(s) shall only display Paid Listings in response to Queries.
e. All Valid Clicks must be a result of a User performing a Query. In all cases, the Paid Listings displayed must be a 100% match to the Keyword or Keyword Phrase contained in the referring Query, unless otherwise agreed to by Lookster.
f. Publisher will not offer any type of incentive to Users to click on Paid Listings.
g. Publisher may not send Users via a third party banner or exit exchange program without first being approved by Lookster.
h. Without limitation Publisher Website(s) may not contain any content, solicitations for goods or services, or links to any of the foregoing that are, as determined by Lookster in its sole discretion, illegal, obscene, indecent, vulgar, offensive, dangerous, or are otherwise deemed inappropriate.
i. Publisher agrees that Clicks originating from the following nations and regions, whether now or previously known as such, are not allowed, and that Clicks generated from such nations may not be counted as Valid Clicks in Lookster’s sole discretion: Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brunei, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Central African Republic, Chad, China, Comoros, Congo, Costa Rica, Cote d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Djibouti, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, French Guyana, French Polynesia, Gabon, Gambia, Georgia, Ghana, Gibraltar, Greece, Guatemala, Guernsey, Guinea, Guinea-Bissau, Guyana, Hong Kong, Hungary, India, Indonesia, Aceh, East Timor, Iran, Iraq, Israel, Ivory Coast (Cote D’Ivoire), Japan, Jordan, Kazakhstan, Kenya, Kiribati, Korea, South Kurdish, Turkey, Iraq, Iran, Kuwait, Kyrgyzstan, Laos, Latvia, Lebanon, Lesotho, Liberia, Libya, Lithuania, Macao (China), Madagascar, Malawi, Malaysia, Maldives, Mali, Mercosur, Mexico, Micronesia, Moldova, Mongolia, Morocco, Mozambique, Myanmar, Burma, Nagorno-Karabakh, Artsakh (Azerbaizan), Namibia, Nauru, Nepal, The Netherlands, Nicaragua, Niger, Nigeria, Niue, North Korea, Oman, Pakistan, Palau, Palestinian, Paraguay, Philippines, Poland, Qatar, Romania, Russia, Rwanda, Sahara, Sao Tome and Principe, Saudi Arabia, Senegal, Serbia Montenegro, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Somalia, South Korea, Sri Lanka, Sudan, Suriname, Swaziland, Syria, Taiwan, Tajikistan, Thailand, Tibet, Togo, Tonga, Tunisia, Turkey, Turkmenistan, Turks and Caicos Islands, Tuvalu, Uganda, Ukraine, United Arab Emirates, Uruguay, U.S.S.R., Uzbekistan, Vanuatu, Vietnam, North Vietnam, South Western Sahara, Yemen, Yugoslavia, Zaire (Dem. Rep. of Congo), Zambia and Zimbabwe.

3. Duties of Lookster.

a. Lookster will provide Publisher Intellectual Property that enables Users to initiate Queries that subsequently display Paid Listings pertaining to such Queries to such Users.
b. Lookster will grant Publisher a limited, non-exclusive and royalty free license during the Term and any Renewal Term of this Agreement, subject at all time to the termination provisions herein, to distribute Lookster’s Paid Listings through the Intellectual Property.
c. Lookster will provide Publisher with a user ID and password to access an on-line tool to view information about the number of Valid Clicks and corresponding Bid Amounts that were generated from the Publisher Website(s) and the resulting Earned Revenue.

4. Duties of Publisher.

Prior to the Effective Date and throughout the Term or any Renewal Term of this Agreement, Publisher will:

a. provide Users with the ability to perform Queries using the Intellectual Property as selected by Publisher during registration.
b. use and/or display the Intellectual Property and/or Paid Listings only in accordance with the terms and conditions of this Agreement and the instructions posted by Lookster from time to time in its sole discretion;
c. not modify the Intellectual Property, which is herein licensed to Publisher.
d. not stress test Lookster’s query or click-through mechanisms;
e.not use any portion of the Paid Listings for any purpose other than displaying Paid Listings on the Publisher Website(s).
f. not collect trends or data or information from the Paid Listings without the prior written consent of Lookster;
g. never disclose proprietary information about Lookster’s search engine, including URLs and parameters used to access Lookster’s search engine and, accordingly, any affiliates of the Publisher must access Lookster’s Paid Listings through the Publisher Website(s), and not directly through Lookster;
h. agree to make reasonable efforts to stop Bots or Spiders from initiating searches or executing click throughs on Paid Listings via the Publisher Website(s).
i. upon being notified by Lookster of the IP addresses of agents, affiliates, networks of computers, or other third-parties which appear to be using Bots or Spiders, use reasonable efforts to block such IP addresses from accessing the Publisher Website(s).
j. notify Lookster as soon as practical in the case where a Bot, Spider, Network or User cannot be stopped from performing repeated searches or click throughs on the Publisher Website(s), and will allow Lookster, without objection, to block such IP addresses on its own.
k. not display Paid Listings in any pop-up window unless the pop-up window is deployed as a direct response to a Query, and the Paid Listings consists of listings for the exact keyword or keyword phrase used in the Query.
l. not pop-up a new window to a User that contains adult-oriented content, unless the User has given consent to Publisher to view adult-oriented content.
m. utilize a Search Box on Publisher Website(s) that contain Keyword Hypertext Links.
n. dynamically provide to Looksterthe unique User IP address in the manner specified by Lookster on a per click-through basis. Lookster shall limit the use of such IP address information gathered from Publisher solely for fraud screening purposes.
o. not utilize any means which would inhibit the User’s Internet browser from passing the referring URL to Lookster.
p. (Reserved).
q. provide support to Users for questions and problems that arise relating to the Paid Listings or refer such Users to Lookster’s customer service in a timely manner.
r. not solicit any advertiser associated with Lookster.
s. not save any Paid Listing provided by Lookster and agrees to initiate a new search through Lookster for each Query posed on the Publisher Website(s).
t. maintain sole responsibility for the creation and maintenance of the Publisher Website(s) and for all content that appears on such Publisher Website(s).
u. have all referring pages written entirely in English.
v. display Keyword Hypertext Links, if any, on its Website(s) only if such Keyword Hypertext Links are pertinent to the content contained within such Publisher Website(s).
w. remove any Keyword Hypertext Links and/or replace any Keyword Hypertext Links appearing on Publisher Website(s) with those suggested by Lookster, at Lookster’s option, in the event Lookster determines, in its sole and absolute discretion, that such Keyword Hypertext Links are inappropriate or are not relevant to the Publisher Website(s).
x. not reference Lookster or its subsidiaries or affiliates in any way without first receiving written consent from Lookster, and accordingly, will not issue any press release or other public statements regarding this Agreement without Lookster’s prior written consent.

5. Payment.

a. Lookster will pay Publisher the Earned Revenue within twenty (20) days of the end of the calendar month in which Lookster received such Earned Revenue.
b. Notwithstanding Section 5.a. hereof, in the event Earned Revenue during any calendar month is less than twenty dollars ($20.00), Lookster may withhold payment until the next month in which the total amount due is at least twenty dollars ($20.00), or until this Agreement is terminated whichever is sooner.
c. Lookster reserves the right, in its sole discretion, to filter Clicks or reduce the amount of Valid Clicks based on internal procedures, and typically does so in accordance with general industry standards. As a result, Publisher understands and agrees that the Earned Revenue may be negatively impacted and Publisher will have no right or recourse in connection with such reduction of Earned Revenue. Additionally, Publisher agrees that Lookster can only pay Publisher the Earned Revenue for Valid Clicks for which it was able to charge its clients (i.e., in the event of system failure or trouble with Lookster, Lookster will not be liable to pay Publisher for clicks delivered to Lookster’s clients, but not recorded or charged to client accounts due to system failure).

6. Ownership and Licenses.

Publisher acknowledges that all right, title and interest in the Intellectual Property is exclusively owned by Lookster and/or its licensors, and is Lookster’s proprietary property, and that no right other than the limited display license granted herein is provided to Publisher. Publisher agrees that this limited, revocable, non-exclusive license to display Lookster’s Intellectual Property inures to the benefit of Lookster. All good will or reputation generated by display of Lookster’s Intellectual Property shall automatically vest in and shall remain the property of Lookster. Publisher agrees not to contest, in any court or other authority having proper jurisdiction, the validity of any of Lookster’s Intellectual Property, including, but not limited to, Lookster’s trademarks, service marks or trade names. During the Term or any Renewal Term of this Agreement, Publisher shall not adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, any of the Lookster trademarks, service marks or trade names, or any word or mark confusingly similar to them in any jurisdiction.

7. Representations and Warranties.

Publisher represents and warrants that it has full power and authority to enter into this Agreement; and Publisher represents and warrants that the content on the Publisher Website(s), and/or the technology used by Publisher in connection with this Agreement are owned or legally licensed for use by Publisher; and Publisher represents and warrants that the Publisher Website(s) does not violate any applicable laws, rules or regulations and does not infringe or violate any copyright, patent, trademark or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of any person or entity, including, but not limited to, rights of privacy and publicity.

8. Warranty Disclaimer.

LOOKSTER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO: 1) IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (2) WARRANTIES THAT THE INTELLECTUAL PROPERTY WILL MEET ALL OR ANY OF PUBLISHER’S NEEDS OR REQUIREMENTS, OR THAT THE PERFORMANCE OF THE INTELLECTUAL PROPERTY WILL BE UNINTERRUPTED OR ERROR FREE; OR (3) WARRANTIES FOR ANY CONTENT PROVIDED BY THIRD PARTIES.

9. Confidentiality.

During the Term or any Renewal Term of this Agreement, Publisher may have access to certain non-public information of Lookster, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" by Lookster, collectively "Confidential Information". This Confidential Information does not include information that is generally in the public domain. Publisher agrees not to disclose any Confidential Information to any third parties or to use any Confidential Information for any purpose except to carry out its obligations under this Agreement. Publisher shall make every effort to keep such Confidential Information confidential, using the same degree of care Publisher uses to protect its own confidential information, as long as it uses at least reasonable care. Publisher acknowledges and agrees that due to the unique nature of the Confidential Information, any such breach may allow third parties to unfairly compete resulting in great harm to Lookster. Publisher further acknowledges that it is aware that the United Kingdom securities laws prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and that the Confidential Information will not be used in a manner that violates U.S. securities laws.

10. Indemnification.

Publisher shall indemnify, defend and hold Lookster harmless (including Lookster’s legal and expert fees) against any and all damages, claims and awards brought or assessed against Lookster, resulting from a breach of any warranty, representation or covenant made by Publisher under this Agreement; or arising from any action against Lookster arising from Publisher’s use or display of Lookster’s Intellectual Property or arising from any breach by Publisher of any of the provisions or requirements of this Agreement.,

11. Limitation of Liability.

Lookster shall not be liable for any special, indirect, consequential (including but not limited to lost profits), incidental, exemplary or punitive damages arising, directly or indirectly, out of its performance of this Agreement.

12. Term; Termination and Forfeiture.

a. This Agreement shall commence on the date Lookster receives Publisher’s online registration ("Effective Date") and shall continue for one year ("Term"), unless earlier terminated as provided herein. This Agreement shall be automatically renewed for each subsequent twelve (12) month period thereafter ("Renewal Term") unless either party gives the other written notice of cancellation at least thirty (30) days prior to expiration of the Term or any Renewal term.
b. If (i) Publisher breaches or threatens to breach any provision of this Agreement, (ii) Publisher engages in any action that, in Lookster’s sole and absolute discretion, reflects poorly on Lookster or its trademarks, service marks, trade name or reputation, or (iii) Publisher fails to accept the terms of any amendment to this Agreement presented to Publisher by Lookster, whether in writing or electronically as provided for in Section 14, Lookster may terminate this Agreement immediately upon notice to Publisher.
c. Lookster may terminate this Agreement upon thirty (30) days written notice to Publisher for any reason, including without limitation in the event a Publisher account remains inactive for more than thirty (30) calendar days. Upon the termination of this Agreement, regardless of the reason, all license rights granted herein shall terminate immediately, and Publisher shall immediately cease use of the Intellectual Property and of all Lookster’s trademarks, service marks and trade names incorporated in the Intellectual Property.
d. Notwithstanding and in addition to Lookster’s rights of termination set forth above, Publisher agrees that in the event of a termination by Lookster of this Agreement pursuant to Section 12.b. above will result in forfeiture of all Earned Revenue and any other monies owed to Publisher under the terms of this Agreement.

13. Notices.

Any notice required for or permitted by this Agreement from the Publisher shall be in writing and shall be delivered by personal delivery, by overnight courier, by certified or registered mail, or by e-mail confirm receipt. All notices must be sent to the address found at 313 Croxley View, Watord, Hertfordshire, WD18 6PW, United Kingdom, or to such other address that Lookster may have provided for the purpose of notification in accordance with this Agreement. Lookster may use electronic postings on its website to provide notice to Publisher required or permitted by this Agreement.

14. Amendments.

Lookster may amend this Agreement at any time by posting such amendment on its website. Publisher’s continued use of the Intellectual Property after the posting of this amendment will constitute acceptance by the Publisher of the terms and conditions contained such amendment without further action by either of the parties to this Agreement. Failure to accept the amendment by Publisher will result in immediate termination of this Agreement by Lookster pursuant to Section 12.b. hereof.

15. Assignment.

Lookster may assign its rights or delegate its duties, rights and obligations under this Agreement without Publisher’s prior written consent. Publisher may not assign its rights or delegate its duties, rights and/or obligations under this Agreement without Lookster’s prior written consent.

16. Relationship of Parties.

This Agreement shall not be construed to create a joint venture or partnership between the parties. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

17. Jurisdiction.

This Agreement shall be governed by the laws of the country of the United Kingdom, without reference to its choice of law rules. The parties agree that the forum for dispute resolution under this Agreement shall be located exclusively in the courts of the United Kingdom.

18. Entire Agreement; Severability.

This Agreement constitutes the entire understanding between the parties and supersedes any prior or contemporaneous agreements, written or oral, between Publisher and Lookstr with respect to the subject matter hereof. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect any remaining provision of this Agreement.

19. Non-Waiver.

All terms or covenants of this Agreement may only be waived in writing by written instrument executed by the party waiving compliance. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in anyone or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach or a waiver of the breach of any other term or covenant contained in this Agreement.

20. Section Headings.

The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. By Electronic Submission, Publisher hereby agrees to the stated terms and conditions.

21. Notification of Changes.

If we decide to change our Search Publisher Agreement, we will post those changes on this page. The amended Search Publisher Agreement must be accepted by any and all participants of the Lookster Search Publisher Program. Your continued use of our service will signify your acceptance of the updated Agreement.

If you have any questions concerning our Publisher Agreement, please contact us.