AOL Vertical Network Standard Terms & Conditions

1. CONTENT AND GRANT OF LICENSE.

1.1 Content. Network Partner represents and warrants that all text, images, video, audio (including, without limitation, music used in time relation with text, images, or video), and other data, products, services, advertisements, promotions, URLs, links, pointers, technology and software (the “Content”) contained within the Network Partner Sites (i) does not and will not infringe on or violate any copyright, trademark, U.S. patent, rights of publicity, moral rights or any other third party right, including without limitation, any music performance or other music related rights, and (ii) does not and will not contain any Content which violates any applicable law or regulation. Network Partner shall be responsible for any licensing, royalty or other third party fees associated with the Licensed Content (as defined below), including but not limited to, any fees owed to a third party music rights holder and any fees resulting from AOL selling, licensing or serving advertisements on the Network Partner Site or into the Licensed Content as permitted hereunder.

1.2 Grant. Network Partner hereby grants AOL a worldwide, non-exclusive license to use, distribute, reproduce, display, adapt, perform, store, Translate, Sublicense, and promote the Licensed Content (or any portion thereof) on or through the AOL Network, regardless of transmission speed (dial-up, DSL, cable, wireless, etc.) or type of device (PC, PDA, mobile phone, etc.) as AOL may determine in its sole discretion. AOL may, in its sole discretion, determine the placement and format for the display of the Licensed Content within the AOL Network. As used in the Advertising Representative and Network Inclusion Agreement and within these Standard Legal Terms and Conditions: (i) the words “Licensed Content” shall mean Network Partner Marks, the Network Partner Sites and any other Content provided by Network Partner to AOL under this Agreement; (ii) “Sublicense” shall mean to grant a sublicense (a) of any of the rights granted to AOL hereunder to AOL Affiliates, and (b) to AOL Users to use the Licensed Content in accordance with the applicable AOL User end user license agreements; and (iii) “AOL Affiliate” shall mean any distributor or franchisee of AOL, or an entity that, directly or indirectly, controls, is controlled by, or is under common control with AOL, including any entity in which AOL holds at least a fifty percent (50%) equity interest.

For avoidance of doubt, the Content license set forth above shall permit AOL to:

i. Create Teasers: Utilize small portions of Licensed Content (which may include Network Partner Marks and/or still shots from video clips) for use in promoting, and providing navigation to, the Licensed Content;

ii. Chapter: Allow users to jump to discrete segments within a video or audio clip;

iii. Playlists: Create, or allow users to create, playlists combining segments from one or more video and/or audio clips along with third party clips;

iv. Archive: Archive the Licensed Content during the Term and make it searchable and available on demand;

v. Cache: Cache, including local cache;

vi. Franchises/Modules/Original Programming: Utilize along with other third party Content in franchises/modules (e.g., "AOL Point of the Night") or original programming (e.g., AOL's daily sports show) and distribute and display such franchises/modules/original programming anywhere on the AOL Network or on any third party distribution platform;

vii. RSS Feeds: Include in RSS feeds for search engines and for purposes of distributing or promoting the franchises/modules/original programming described above.

viii. Make Snaggable. Allow users to make the Licensed Content viewable, playable or displayable on or through AOL products or services (e.g., AOL video or audio players, AOL widgets) on third party websites or web pages.
ix. Make Printable. For the sole purpose of allowing a user to print discrete portions of Licensed Content, re-format or allow a third party agent of AOL to reformat the Licensed Content and allow discrete portions of such re-formatted Licensed Content to be downloaded to users’ computer (e.g. by PDF).

2. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into this Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (ii) the execution of this Agreement by such Party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (iv) such Party’s marketing, advertising or other promotional materials will neither infringe on any copyright, U.S. patent or any other third party right nor violate any applicable law or regulation and (v) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof which are not expressly provided for in this Agreement. Each Party represents and warrants that it possesses all assets, authorizations, approvals, consents, licenses, permits, certificates, or other rights and permissions necessary to grant the rights granted by it in this Agreement and to perform its obligations as contemplated by this Agreement.

3. CONFIDENTIALITY

Each Party acknowledges that Confidential Information (defined below) may be disclosed to the other Party during the course of this Agreement. Each Party agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, during the term of this Agreement, and for a period of three years following expiration or termination of this Agreement, to prevent the disclosure of Confidential Information of the other Party, other than to its employees, agents, affiliates and third parties as necessary to perform its obligations hereunder, who will each agree to comply with this section. Notwithstanding the foregoing, either Party may issue a press release or other disclosure containing Confidential Information without the consent of the other Party, to the extent such disclosure is required by law, rule, regulation or government or court order. In such event, the disclosing Party will provide at least five (5) business days prior written notice of such proposed disclosure to the other Party. Further, in the event such disclosure is required of either Party under the laws, rules or regulations of the Securities and Exchange Commission or any other applicable governing body, such Party will (i) redact mutually agreed upon portions of this Agreement to the fullest extent permitted under applicable laws, rules and regulations and (ii) submit a request to such governing body that such portions and other provisions of this Agreement receive confidential treatment under the laws, rules and regulations of the Securities and Exchange Commission or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body. Upon the expiration or termination of this Agreement, each Party shall, upon the written request of the other Party, return or destroy (at the option of the Party receiving the request) all Confidential Information. “Confidential Information” means any information relating to or disclosed in the course of this Agreement, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing Party, including, but not limited to, the material terms of this Agreement, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data. “Confidential Information” shall not include information (a) already lawfully known to or independently developed by the receiving Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party.

4. TREATMENT OF CLAIMS.

4.1. Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS PROVIDED BELOW IN THE “INDEMNITY” SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FORMORE THAN THE ADVERTISING REVENUES PAID BY AOL TO NETWORK PARTNER HEREUNDER DURING THE PRECEEDING TWELVE (12) MONTH PERIOD; PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT.

4.2. No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE

4.3. Indemnity. Each party will defend, indemnify, save and hold harmless the other party and the officers, directors, agents, affiliates, distributors, franchisees and employees of the other party from any and all third party claims, demands, liabilities, costs or expenses, including reasonable attorneys' fees ("Liabilities"), resulting from the indemnifying party’s material breach of any duty, representation, or warranty of this Agreement. In addition, Network Partner will defend, indemnify, save and hold harmless AOL and AOL’s officers, directors, agents, affiliates, distributors, franchisees and employees from any and all Liabilities arising out of or in any way related to (a) the Licensed Content and AOL’s use of the Licensed Content in accordance with this Agreement, and (b) relating to a contaminated file, virus, worm, or Trojan horse originating from the Network Partner Sites (other than through a Advertisements supplied by AOL, unless such Advertisement was modified by Network Provider without the express written consent of AOL). If a party entitled to indemnification hereunder (the “Indemnified Party”) becomes aware of any matter it believes is indemnifiable hereunder involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party shall give the other party (the “Indemnifying Party”) prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession of the Indemnified Party. The Indemnifying Party shall have a period of ten (10) days after delivery of such notice to respond. If the Indemnifying Party elects to defend the Action or does not respond within the requisite ten (10) day period, the Indemnifying Party shall be obligated to defend the Action, at its own expense, and by counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Action. If the Indemnifying Party responds within the required ten (10) day period and elects not to defend such Action, the Indemnified Party shall be free, without prejudice to any of the Indemnified Party’s rights hereunder, to compromise or defend (and control the defense of) such Action. In such case, the Indemnifying Party shall cooperate, at its own expense, with the Indemnified Party and its counsel in the defense against such Action and the Indemnifying Party shall have the right to participate fully, at its own expense, in the defense of such Action. Any compromise or settlement of an Action shall require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.

4.4. Acknowledgment. AOL AND NETWORK PARTNER EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION SHALL BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT.

4.5. Right to Perform Similar Services for Others. NETWORK PARTNER UNDERSTANDS AND AGREES THAT AOL HAS ENTERED INTO OR WILL ENTER INTO SIMILAR REPRESENTATION AGREEMENTS WITH OTHER THIRD-PARTIES, AND THAT AOL HAS OR WILL MAKE EFFORTS TO SELL ITS OWN ADVERTISEMENTS, SOME OR ALL OF WHICH MAY BE COMPETITIVE TO NETWORK PARTNER. NETWORK PARTNER COVENANTS AND AGREES THAT NOTHING IN THIS AGREMENT SHAL CREATE ANY FIDUCIARY DUTY TO PROMOTE OR SOLICIT ANY ADVERTISEMENT AHEAD OF ANY OTHER PARTY’S ADVERTISEMENT.

5. INTELLECTUAL PROPERTY; TRADEMARK LICENSE. Solely in connection with the obligations specified in the Agreement and to the extent necessary to perform such obligations, AOL shall be entitled to use the trade names, trademarks and service marks of Network Partner (the “Network Partner Marks”). AOL acknowledges that its utilization of the Network Partner Marks will not create in it, nor will it represent it has, any right, title or interest in or to such Network Partner Marks other than the licenses expressly granted herein. All hardware, software, programs, trade names, technology, licenses, patents, trademarks, copyrights, and any other intellectual property rights, trade secrets, know how, and processes (collectively, the "AOL IP") used by AOL under this Agreement shall remain the sole property of AOL. Network Partner shall have no rights, title or interest in the AOL IP. All hardware, software, programs, codes, trade names, technology, licenses, patents, trademarks, copyrights, and any other intellectual property rights, trade secrets, know how, and processes (collectively, the "Network Partner IP") used by Network Partner under this Agreement shall remain the sole property of Network Partner. AOL shall have no rights, title or interest in the Network Partner IP.

6. ADVERTISEMENTS
6.1. Video Advertisements.
6.1.1. Network Partner shall ensure that any video player used in connection with video Advertisements is compliant with AOL’s video advertising format, size, and technical requirements. Network Partner is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Network Partner Sites that has been approved by AOL to deliver video Advertisements, (ii) use the Licensed Code, and (iii) display the video Advertisements. Network Partner is solely responsible for ensuring that such hardware, software, networks, systems and third-party services are compatible with the Licensed Code, and AOL makes no representation or warranty regarding any such compatibility. For the purpose of this Agreement, “Licensed Code” shall mean scripts to be provided by AOL that are designed to be inserted into the HTML code of web pages within the Network Partner Sites, which scripts communicate with servers designated by AOL and request transmission from those servers of video Advertisements.
6.1.2. Delivery of Video Advertisements. AOL hereby grants to Network Partner a non-exclusive, nontransferable, non-sublicenseable limited license to display each video Advertisement transmitted to approved pages of Network Partner Sites, provided that (i) when called as a result of a user visiting Network Partner Sites, such display occurs only once and only within the particular web page to which the video Advertisements is initially transmitted; and (ii) the relevant video Advertisements may not be retained or stored by Network Partner after such single display (other than in the ordinary course of archiving Network Partner Sites). Network Partner shall not use any video Advertisements except as expressly authorized in the Agreement. All video Advertisements shall be served by AOL or its third party ad server.
6.1.3. License to Code. Subject to the terms of the Agreement, AOL grants Network Provider a non-exclusive, non-transferable, non-sublicenseable, limited license (i) to insert copies of the Licensed Code within the HTML code of any pages within Network Provider’s approved sites, (ii) to distribute the Licensed Code solely as embedded within such HTML, and solely in connection with display of the page rendered from such HTML by industry-standard browser software, and (iii) to make copies of the Licensed Code as reasonably necessary for purposes of exercising the foregoing rights. For sake of clarity, the licenses granted above do not include rights (i) to distribute the Licensed Code or copies thereof except as embedded within the HTML of pages within Network Provider Sites; (ii) to modify or create derivative works of any Licensed Code; nor (iii) to publicly display the Licensed Code.
6.2. No Alterations. Network Partner shall not change the advertising inventory on any Network Partner Site without AOL’s prior written consent, and shall satisfy the requirements set forth in Section 4.3 below. AOL shall have the right to use any unsold inventory in its discretion, including for barter and/or house advertisements (i.e., promoting properties, products and services of AOL or its affiliates).

7. NETWORK PARTNER PRIVACY AND USER DATA COLLECTION POLICIES

7.1 Insight Tags

7.1.1 Insight tags or the form and format thereof shall be supplied by AOL or TACODA with applicable documentation. Network Partner shall place no more than one Insight tag on a given page.

7.1.2 Network Partner agrees to place Insight tags only on web pages outlined in Exhibit A and for which it is legally permitted to do so.
7.2 Website Content

7.2.1 Insight and ad tags may only be placed on Websites which have been reviewed and approved by AOL and specified in Exhibit A. AOL reserves all rights to include or exclude any website’s participation at any time for any reason whatsoever.

7.2.2 Network Partner shall ensure that Website may not contain any adult content or link to any adult materials.

7.2.3 Network Partner shall ensure that Website content may not infringe on any personal, intellectual property or copy rights.

7.2.4 Network Partner shall ensure that Website may not promote any activity that violates the laws of the United States, such as those pertaining to online wagering and interstate commerce of certain goods and services.

7.2.5 Network Partner shall ensure that Website may not promote or reference software piracy nor promote activities generally understood as Internet abuse including but not limited to the sending of unsolicited bulk e-mail or use of spyware.

7.2.6 Network Partner shall ensure that Website may not be advertised or promoted through the use of unsolicited bulk e-mail, or allow Website members or customers to engage in similar activities through Website, including those activities prohibited by this Agreement.

7.2.7 Network Partner guarantees that all content on its website is legal to distribute in the manner and locations as distributed and that Network Partner owns or has legal right to use any and all copyrighted material.

7.3 Network Partner shall promptly notify AOL of its placement of insight or ad tags on a Website or the removal of tags from a Website.

8 PRIVACY

8.1 AOL is in compliance with Children’s Online Privacy Protection Act of 1998 (COPPA). Network Partner shall designate Website as having children’s or non-children’s content as well as designating if it knowingly collects any personal information from children under the age of thirteen. Network Partner shall promptly notify TACODA in the event that either its content or its policy on data collection changes.

8.2 Network Partner shall have a posted privacy statement, accessible by direct link from Website’s home page that reflects current privacy practices consistent with established Internet industry standards in the opinion of TACODA and is in compliance with current U.S. government regulations. Network Partner shall also provide, as directed by AOL or TACODA, a section in their privacy policy that clearly and conspicuously discloses the Network Partner’s participation with AOL and its affiliates including but not limited to TACODA and Advertising.com and the user’s ability to opt-out from Web Beacons by linking to the NAI opt-out Website.

9 NETWORK PARTNER LIMITATIONS

9.1 No Resale. Under no circumstances may Network Partner, without the prior, express written consent of AOL, alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertisement or computer code provided by AOL.

9.2 Promotion Limitations. The following methods of generating visitor interest in Network Partner Sites or Advertisements are prohibited: mailing emails to persons other that those persons who have requested to receive such emails (i.e., spamming); use of unsolicited email or inappropriate newsgroup postings to promote Network Partner Sites or Advertisements; autospawning of browsers; or automatic redirecting of visitors; blind text links; misleading links, forced clicks (a person should never be 'forced' to click on an Advertisement because their browser has been hijacked, or because an Advertisement has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.

9.3 Keyword Limitations. Without the prior written approval of AOL, Network Partner may not purchase keywords from search engine service providers in order to drive traffic to Advertisements, including, but not limited to purchasing keywords that include the trademark, service mark, or brand name of the Advertiser to which the applicable Advertisement relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on Web Sites or within emails.

9.4 Other Limitations. Network Partner agrees that it shall NOT, unless it has received written authorization from AOL: (i) intentionally place Advertisements on blank web pages or on web pages with no content, (ii) stack Advertisements (e.g. place on top of one another so that more than two advertisements are next to each other), (iii) place Advertisements on non-approved Network Partner Sites or web pages, or in such a fashion that may be deceptive to the visitor, (iv) place Advertisements on any Network Partner Site (i.e., a specific URL) other than the Network Partner Site for which the Advertisement was accepted, or place advertisements intended for Network Partner Sites on or within any other media (e.g. emails) other than Network Partner Sites, (v) serve Advertisements from any location other than an AOL server (stored images that are loaded from a different location will not count towards any statistic or payment), (vi) serve Advertisements, or drive traffic to such Advertisements, using any downloadable applications, (vii) induce persons to click on Advertisements based on incentives (e.g. rewards programs), (viii) place Advertisements on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications.

10 COUNTING; NON-SOLICTATION

10.1 Counting. AOL shall have the sole responsibility in its absolute and sole discretion for calculation of statistics, including, but not limited to, impressions, unique clicks, actions and revenue generated on Network Partner Sites, as applicable. Statistics shall be available to Network Partner online.. Network Partner understands that AOL’s online statistics may not be 100% accurate and that AOL may make adjustments to Network Partner’s online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., Invalid Clicks) and statistical errors.

10.2 Artificial Traffic Generation. Network Partner shall not use, and shall use best efforts to prevent the use of, any mechanical, computerized, fraudulent, deceptive, or any other artificial means of increasing viewership, impressions, usage or any other measure of Internet traffic at any of the Network Partner Sites, including without limitation, click spam, automated robots, macro programs and Internet agents

10.3 Invalid Clicks. AOL shall use commercially reasonable efforts to identify and filter for Invalid Clicks. The Parties acknowledge that it is not possible to completely identify or eliminate all Invalid Clicks, but in the event AOL identifies, in AOL’s sole discretion, that particular clicks are Invalid Clicks, AOL will adjust Network Partner’s invoices to reflect such Invalid Clicks. For the purpose of this Agreement, “commercially reasonable efforts” is satisfied if AOL uses the same level of efforts to identify and filter Invalid Clicks from billings for Advertisements as it does for advertisements sold through AOL’s network of interactive sites. As used herein, the term “Invalid Clicks” shall mean clicks that AOL considers to be a result of fraudulent activity or otherwise invalid and for which AOL does not charge, or issues a refund to, Advertisers.

10.4 Non-Solicitation. Network Partner recognizes that AOL has proprietary relationships with the third-party advertisers which provide Advertisements and Network Partner agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any Advertiser that is known to Network Partner to be an Advertiser of AOL (e.g., an Advertiser which provides Advertisements to the Network Partner Sites), for purposes of offering products or services that are competitive with AOL (including the provision of advertising inventory) nor contact such Advertisers for any purpose, during the term of this Agreement and for the 90-day period following termination of this Agreement, provided however, that the foregoing restriction shall not apply to Advertisers with whom Network Partner already has a relationship prior to the placement of Advertising on Network Partner Sites on behalf of such Advertisers by AOL, as explicitly proven by documented evidence of such prior relationship provided by Network Partner to AOL immediately upon AOL’s written request.

11 MISCELLANEOUS

11.1 Press Release. Notwithstanding anything to the contrary in this Agreement, each Party will submit to the other Party, for its prior written approval, any press release or other public statement regarding the transactions contemplated by this Agreement; provided that, subsequent to the initial press release, factual references to the existence of a business relationship between the Parties shall not require the approval of the other Party. The failure to obtain the prior written approval of the other Party shall be deemed a material breach of this Agreement.

11.2 Insurance. At all times during the Term, Network Partner shall maintain a publisher liability, multi-media liability and/or professional liability insurance policy or policies adequate in amount to insure Network Partner against all liability associated with the Content, including at least $3,000,000 combined single limit coverage for copyright and trademark infringement and defamation and negligent disclosure of information. Upon AOL's request, Network Partner shall provide AOL with a copy of such policy or policies or a certificate of insurance evidencing the same. Failure to do maintain such insurance or to provide requested policies to AOL shall be deemed material breaches of this Agreement. Network Partner shall provide AOL with sixty (60) days advance notice of any material change in such policy or policies.

11.3 Excuse. Neither party shall be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions which are beyond such party's reasonable control and which such party is unable to overcome by the exercise of reasonable diligence.

11.4 No Waiver. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement 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; rather, the same shall be and remain in full force and effect.

11.5 Survival. Sections 3, 4, 5, and 9 of these Standard Legal Terms, shall survive the completion, expiration, termination or cancellation of this Agreement. In addition, all payment terms of this Agreement and any provision which, by its nature, must survive the completion, expiration, termination or cancellation of this Agreement, shall survive the completion, expiration, termination or cancellation of this Agreement.

11.6 Entire Agreement. This Agreement sets forth the entire agreement and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.

11.7 Amendment. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by the party subject to enforcement of such amendment.

11.8 Further Assurances. Each party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.

11.9 Assignment. Network Partner shall not assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of AOL. Assumption of this Agreement by any successor to Network Partner (including, without limitation, by way of merger, consolidation or sale of all or substantially all of Network Partner’s stock or assets) shall be subject to AOL’s prior written approval. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.

11.10 Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.

11.11 Remedies. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

11.12 Applicable Law; Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the State of New York except for its conflicts of laws principles.

11.13 Headings. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

11.14 Counterparts; Facsimile. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Signatures sent by facsimile shall be deemed original signatures.