DYNAMIC TOOLBAR WIZARD™ PUBLISHER AGREEMENT

All users are required to read and accept the following terms and conditions (the “Agreement”) before activation of their account. Please read this Agreement before proceeding. IF YOU DO NOT ACCEPT THE FOLLOWING TERMS AND CONDITIONS, YOU MAY NOT REGISTER FOR, PARTICIPATE IN OR BENEFIT FROM THE Dynamic Toolbar Wizard™ SERVICES (the “Services”).

1. PARTIES

Pursuant to this Agreement, Visicom Media Inc. (“VISICOM”), a Canadian corporation, and you, as prospective registered Publisher (“You” or “Publisher”) agree to the following terms and conditions for the use of the Services and the receipt of a customized DYNAMIC Toolbar™ software plug-in from VISICOM (each an “Publisher Toolbar”). The Services include the toolbar building, tracking and reporting concerning each Publisher Toolbar, as described on the Visicom Website.

2. GRANT OF LICENSE

(a) Distribution License: Subject to the provisions in this Agreement, VISICOM hereby grants You, the Publisher, a perpetual, worldwide, non-exclusive, non-transferable, non-sublicensable and revocable right to copy and distribute to users of your Website (“End-Users”), through any distribution method including but not limited to by downloading through the Internet, the compiled object code version of the client portion of Publisher Toolbar contained in the executable (.exe) file generated through the Services (the “.exe File ” ), the whole subject to the terms and restrictions of this Agreement.

(b) License to Use: Subject to the provisions in this Agreement, VISICOM also grants You, the Publisher, a worldwide, non-exclusive, non-transferable revocable right to install and use a single copy of the other ancillary content which VISICOM may provide to You through the Services, such as Web page templates, FAQs, icons, configuration files and documentation (“Other Visicom Content”), for purposes of distributing the .exe File, the whole in accordance with this Agreement and solely during its Term. You may not otherwise reproduce or distribute this Other Visicom Content, except for Web page templates which you may adapt, install, display and use on your Website.

(c) EULA: You acknowledge that your use of the Publisher Toolbar, as well as its use by any End-User will be subject to the additional license terms and conditions set forth in the End-User License Agreement (the “EULA”) which you and any user must accept prior to installation and use. This Agreement and the EULA both define how You may use the Publisher Toolbar, and should be read in conjunction. You agree not disable the software process requiring acceptance of the EULA and not to distribute the Publisher Toolbar otherwise than by distributing the unmodified .exe File.

(d) Other Restrictions: You acknowledge that this license does NOT grant you any right to modify, adapt, translate or prepare derivative works from the Publisher Toolbar, otherwise than by using the Services to produce and receive the .exe File which you must install and distribute “as is”. You may not attempt to reverse engineer, disassemble, nor decompile the Publisher Toolbar, nor distribute any of its components separately from the rest of the .exe File. Finally, You may not remove, obscure or alter any VISICOM or third party licensor trademark, logo, copyright or other proprietary notices, legends or symbols contained in the Publisher Toolbar.

3. REGISTRATION AND USE POLICY

(a) Registration: Registration to use the Services is subject to: (1) Your continued compliance with the policies which VISICOM may adopt from time to time. VISICOM reserves the right to refuse providing the Services to any new or existing Publisher, for any reason, in its sole discretion.. VISICOM reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Publisher or Publisher Toolbar for any reason, at any time (including, without limitation, if the text of a particular Publisher Toolbar is in a language other than English), with or without notice to Publisher, and regardless of whether such Publisher or Publisher Toolbar was previously accepted. Without limiting the foregoing, VISICOM reserves the right to require potential or existing Publishers to submit supplemental detailed descriptions or explanations of Publisher’s Website or proposed Publisher Toolbar. Refusal to participate or answers deemed unsatisfactory will constitute grounds for refusing to provide the Services to the Publisher or terminating this Agreement and the Publisher’s right to distribute the Publisher Toolbar.

(b) Content: VISICOM reserves the absolute right to terminate Your registration as a “Publisher”. VISICOM will terminate to provide the Services to produce a Publisher Toolbar concerning any Publisher Websites that: (1) engage in, promote or facilitate illegal or legally questionable activities such as pirating and hacking; (2) are “under construction”. The Publisher Toolbar may not be used concerning any Website that contains forums, discussion boards, chat rooms, or any content area that is open to public updates without regulation. In addition, VISICOM may in its sole discretion refuse to serve any Publisher if VISICOM deems the content of its Website inappropriate.

(c) Traffic: VISICOM reserves the right to terminate Publisher’s relationship with VISICOM immediately should either (a) the number of downloads of Publisher Toolbar by End-Users total less than 100 per month, or (b) the “Click Through Rate” by unique equals 0.25% or less for any fourteen (14) consecutive calendar day period, or (c) Publisher’s traffic falls below the threshold established by VISICOM from time to time. VISICOM reserves the right to change the minimum CTR at any time in response to market pressures.

(d) Distribution: Publisher shall be solely responsible for distributing the Publisher Toolbar through its Website, which distribution shall be subject to the terms and conditions of this Agreement.

(e) Fraud and Deception: VISICOM may audit the traffic generated by use of Publisher Toolbar by End-Users, on a periodic basis. Publishers that commit fraudulent activities, including false clicks, false installations, and incentive clicks, will have their account permanently terminated.

(f) Statistics: VISICOM shall own all data collected by or through use of Publisher Toolbar by You and/or End-Users, including any statistical reports containing compilations of such data.

(g) Privacy and Majority: The Publisher is responsible to adopt, display on its Website and maintain a privacy statement acceptable to VISICOM throughout the Term of this Agreement. If Publisher is an individual, Publisher must be at least 18 years of age.

(h) Account Transferability: Accounts to access the Services and collect Fees (as defined hereafter) are non-transferable, non-assignable and non-resalable, even if You sell your Website. If Your Website changes ownership or management, the new owner or manager must register as a Publisher and sign-up for a new account in his/her/its own name.

4. INTELLECTUAL PROPERTY

(a) Trademarks: VISICOM's logos and trademarks or logos on all VISICOM products and Websites are trademarks of VISICOM or VISICOM's licensors (the “VISICOM Marks”). Publisher shall not display or use in any manner any VISICOM Marks without the prior written consent of VISICOM

(b) Ownership of Publisher Content: VISICOM acknowledges that Publisher will retain all copyright, trademark, patent rights, trade secret rights, and other intellectual property or proprietary rights in and to any visual or content elements which Publisher may elect to include in Publisher Toolbar by accessing the Services (collectively the “Publisher Content”). Publisher acknowledges that the preceding does not apply, however, to the preexisting code and content of the DYNAMIC Toolbar™ software toolbar or any other functional code derived from said toolbar. You hereby acknowledge that VISICOM is not responsible for the Publisher Content or the content or maintenance of Your Website.

(c) Warranty by Publisher: Publisher hereby warrants and represents that: (1) all information provided by Publisher to VISICOM to register to use the Services is correct and current; and (2) Publisher is the owner of all rights, title and interest in the Publisher Content. Furthermore, Publisher also warrants and represents to VISICOM that the inclusion of the Publisher Content in the Publisher Toolbar, and distribution of the resulting Publisher Toolbar: (i) will not result in the infringement or breach of any third party’s rights, including any intellectual property, personality rights, rights of publicity and the right to privacy; (ii) are not pornographic, hate-related or otherwise violent in content ; and (iii) will not result in the breach or contravention to any applicable law, statute, ordinance or governmental regulation.

(d) Obligation to Indemnify: Publisher shall defend, indemnify and hold VISICOM harmless from and against any and all liabilities, losses, damages, cost and expenses (including reasonable legal fees) arising out of or associated with any claim that (1) the Publisher Content or any part thereof (as included in the Publisher Toolbar) infringes any third party’s rights, including any intellectual property or personality rights; or (2) arise from Your use of the Services or distribution of the Publisher Toolbar, and/or Your breach of any warranty, representation, term or condition of this Agreement.

5. EXCLUSIONS OF WARRANTIES

THE SERVICES ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES IS BORNE BY THE PUBLISHER. VISICOM ALSO MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND CONCERNING ANY OF THE PUBLISHER CONTENT OR THE POSSIBILITY OF INCLUDING SAME WITHIN THE PUBLISHER TOOLBAR.

6. LIMITATION OF LIABILITY

IN NO EVENT SHALL VISICOM BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT OR INDIRECT DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS INCURRED BY THE PUBLISHER AND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, EVEN IF VISICOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VISICOM SHALL HAVE NO LIABILITY WHATSOEVER TO ANY THIRD PARTY CONCERNING THE PUBLISHER CONTENT INTEGRATED WITHIN THE TOOLBAR BY PUBLISHER. IN NO EVENT WILL VISICOM’S LIABILITY ARISING OUT OF THIS AGREEMENT OR USE OR INABILITY TO USE THE PUBLISHER TOOLBAR EXCEED THE AGGREGATE AMOUNT OF US$100.00.

7. TERMINATION

Subject to VISICOM’s acceptance of the registration of the Publisher, the term of this Agreement (the “ Term ”) shall commence on the date Publisher agrees to the terms and conditions of this Agreement and shall continue indefinitely thereafter, unless earlier terminated as provided herein. Either party may, at any time, terminate this Agreement for any reason and without liability for that termination upon five (5) days prior notice , being understood that Publisher may no longer distribute the Publisher Toolbar if the Agreement is terminated. Without limiting the generality of the foregoing, VISICOM reserves the right to terminate this Agreement with or without prior notice i f Publisher breaches any covenant, representation and/or warranty of this Agreement, if Publisher engages in any acts prohibited in this Agreement or if Publisher engages in any action that, in VISICOM’s sole discretion, reflects poorly on VISICOM or otherwise disparages or devalues VISICOM’s reputation or goodwill.

8. GOVERNING LAW AND FORUM

This Agreement will be governed and interpreted according to the laws applicable within the province of Quebec, Canada. Any judicial proceedings relating to this Agreement must be presented in the Judicial District of Montreal, Quebec, Canada, to the exclusion of any other courts or jurisdiction.

9. MISCELLANEOUS

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, subject to the provisions of the applicable EULA which also apply to the Publisher Toolbar. Any modifications to this Agreement must be made in a writing executed by both parties, by Your online acceptance of updated terms, or after Your continued distribution of the Publisher Toolbar after such terms have been updated by VISICOM. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of Your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to VISICOM. Notwithstanding the foregoing, VISICOM may assign this Agreement to any Publisher at any time without notice. The relationship between VISICOM and You is not one of a legal partnership relationship, but is one of independent contractors.

 

Privacy Policy

Dynamic Toolbar and its representations in the World, hereafter collectively 'Dynamic Toolbar', recognize the need to protect the privacy of the personal information that we collect from you as you use the Site and its products and services. Users should fully understand the terms and conditions surrounding the capture and use of that information.

Information Collected

Dynamic Toolbar collects personal information on certain areas of the Site when users register, sign up for newsletters, participate in surveys and download applications. You are informed of the nature of the data collected and whether or not providing the data is compulsory by informative notices displayed at the time the data is requested from you on the Site. The personal information collected may consist of a unique access ID and contact information such as names, email addresses, phone and fax numbers, birth date, gender, zip code, occupation, industry, and personal interests. We may ask for further optional information from time to time to get a better picture of our visitors and their preferences. Dynamic Toolbar encourages users to provide this information to ensure that the content of our Site will remain relevant to your interests and needs.

Use of Information

You are informed of the use of the data collected by informative notices provided at the time the data is requested from you on the Site. The data collected is required by Dynamic Toolbar to enable you to access the Site and its functionality. Dynamic Toolbar also uses personal information to measure visitor usage and interest to help us improve the content and functionality of our Site. The e-mail addresses provided on registration allow us to send e-mail giving you notice of the existence of new contents to you based on the areas of interest you may have indicated to us. If you do not wish to receive e-mailed advance notices of content, you will be given the opportunity to indicate this preference on registration. You may also request cessation of the mailing of such notices later on at any time by following the instructions mentioned in the e-mails sent. Dynamic Toolbar uses personal information collected from cookies and IP addresses as described below.

Information Sharing and Disclosure

Dynamic Toolbar does not rent, sell, or share personal information about you with other people or nonaffiliated companies except to provide products or services you've requested, when we have your permission, or under the following circumstances: We provide the information to trusted partners who work on behalf of or with Dynamic Toolbar under confidentiality agreements. These companies may use your personal information to help Dynamic Toolbar communicate with you about offers from Dynamic Toolbar and our marketing partners. However, these companies do not have any independent right to share this information. We believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of Dynamic Toolbar's terms of use, or as otherwise required by law. We transfer information about you if Dynamic Toolbar is acquired by or merged with another company. In this event, Dynamic Toolbar will notify you before information about you is transferred and becomes subject to a different privacy policy.

Cookies and IP addresses

Cookies are pieces of information that a web site transfers to your computer's hard disk for record-keeping purposes. Cookies in and of themselves do not personally identify users, although they do identify a user's computer. Most browsers are initially set up to accept cookies. If you'd prefer, you can set your browser to refuse cookies. However, you may not be able to take full advantage of our web site if you do so. We use cookies to make it easy to our visitors to download graphics on Dynamic Toolbar site. We also use cookies to collect demographic and profile data for purposes of delivering content specific to your interests. IP addresses are used by your computer every time you are connected to the Internet. Your IP address is a number that is used by computers on the network to identify your computer. IP addresses are automatically collected by our web server as part of demographic and profile data known as "traffic data" so that data (such as the Web pages you request) can be sent to you. We also use your IP address to help diagnose problems with our server and to administer our Web site. Dynamic Toolbar will not use your IP address to attempt to identify your personal information.

Advertisers

We might use an outside ad company to display ads on our site. These ads may contain cookies. While we use cookies in other parts of our Web site, cookies received with banner ads are collected by our ad company, and we do not have access to this information.

External Links

The Site contains links to third-party Web sites. Please be aware that we cannot control and are not responsible for the information collection practices of third-party Web sites. We encourage you to review and understand the privacy policies of these Web sites before providing any information to them.

Confidentiality and Security

We limit access to personal information about you to employees who we believe reasonably need to come into contact with that information to provide products or services to you or in order to do their jobs. We have physical, electronic, and procedural safeguards that comply with federal regulations to protect personal information about you.

Contacting the Web Site

If you have any questions about this privacy statement, the practices of this site, or your dealings with this Web site, you can contact: .

 

Dynamic Toolbar Guideline Restrictions

Purpose of this document: This document is intended as a non-exhaustive overview of the criteria Dynamic Toolbar uses to evaluate partners submitted for inclusion in the Dynamic Toolbar Platform. Please note that nothing contained in this document constitutes an express or implied waiver or relinquishment of any rights, remedies, claims or defenses of Dynamic Toolbar – at law and in equity – all of which are expressly reserved.

Dynamic Toolbar reserves the right to modify these guidelines at any time in its sole discretion.

Requirements for Partners

The partner must remove or modify to Dynamic Toolbar`s satisfaction any non-compliant affiliates or implementations within 1 business day of receiving notice from Dynamic Toolbar

1. The Partner toolbar (hereafter referenced as “the toolbar site”) must contain substantial content other than ads and navigational links. Non-content or minimal-content pages, such as proxy sites or error pages, are not acceptable.
2. The toolbar site must have a professional look and feel, be easy to use and navigate, and not contain broken links or missing images.
3. The toolbar site`s home page must contain a prominent link to the site’s privacy policy.
4. The toolbar site, including the domain name, must not violate any 3rd party trademarks or IP rights.
5. The toolbar site must be in the same language as the ad feed.
6. The toolbar site`s domain name may not contain misspellings, excessive dashes, or meaningless characters outside of normal branding.
7. The toolbar site may not acquire traffic through the use of adware, spyware, or changes made to users’ settings without their explicit and informed consent.
8. The toolbar site may not engage in arbitrage. For the purposes of clarity and without limitation, arbitrage is the purchasing of traffic by partners or affiliates with the intent of directing users to web pages where Yahoo! sponsored results are the most prominent page element.
9. The partner may not engage in sub-syndication or provide feed data to any other party.
10. The toolbar site may not actively encourage users to click on sponsored results.
11. The toolbar site may not provide incentives, monetary or otherwise, to the user to search without express written consent from Dynamic Toolbar.
12. The toolbar site does not feature substantial unmoderated user-generated content. 13. The toolbar site has not been rated Red (Serious Risk Issues) by McAfee’s SiteAdvisor program (http://www.siteadvisor.com/).
13. Sites containing sexually explicit content must use an X-rated feed.
14. The toolbar site may not change user preferences or reset default home pages without the user’s informed consent, resize browser windows, disable back buttons, or otherwise interfere with a user's ability to navigate.
15. The toolbar site may not attempt to install software or ActiveX controls without appropriate notice and user consent.
16. The toolbar site may not cache sponsored results.
17. The toolbar site may not forward, mask, or cloak URLs or engage in deceptive practices. ƒ

    Cloaking: Presenting content to a search engine crawler that is materially different from that presented to a user’s browser.

    Masking: Displaying in the user's address bar a URL different from that of the page being visited.

    Forwarding: Redirecting users to a different domain or URL. CONFIDENTIAL & PROPRIETARY

18. The toolbar site may not offer or promote any of the following:
    1. Online gambling.
    2. Alcohol.
    3. Tobacco.
    4. Products or services that facilitate copyright infringement, such as P2P (peer-to-peer) file-sharing networks, Usenet/Newsgroup, BitTorrent, DVD ripping/back-up services, MOD chips, and emulators.
    5. Copyrighted materials obtained or displayed without the consent of the copyright owner.
    6. Hacking, surveillance, interception or descrambling equipment and techniques.
    7. The distribution of viruses, malware, spyware, or other unsafe downloads.
    8. Prescription drugs.
    9. Firearms, ammunition, or other weapons.
    10. Explosives, fireworks, bombs, etc., or provision of “how-to” materials.
    11. Counterfeit, fake or bootleg products, or replicas or imitations of designer products.
    12. Illegal drugs and associated paraphernalia, including products or information related to "beating" a drug test.
    13. The promotion of illegal activity (e.g. evading traffic tickets).
    14. Stolen or illegally obtained products.
    15. Government IDs or police items.
    16. Fake IDs, fake diplomas, or education transcripts.
    17. Hate speech or the promotion of racial, ethnic or gender hatred.
    18. Controversial or overtly political content.
    19. The collection (as the primary purpose of the site) of personally identifiable information to be used for consumer or promotional marketing, or related purposes.
    20. Bulk marketing products or services if the stated or implied use of the product is unsolicited spam.
    21. Academic paper-writing services and the sale of pre-written essays, theses, and dissertations.
    22. Hazardous materials.
    23. Body parts or bodily fluids.
    24. Any product or service from countries subject to U.S. trade sanctions or embargo.
    25. Content of questionable legality.
    26. Vulgar and obscene material.
    27. Mature topics.
    28. Content that advocates or glorifies suffering and violence.
    29. “Extreme” adult content, including: ƒ Asphyxiophilia. ƒ Humiliation. ƒ Non-Consensual or Illegal Sex. ƒ Severe infliction of pain. ƒ Prostitution. ƒ Adult domains that contain the words “extreme” or “shocking”.