PLEASE READ THIS SUBSCRIBER AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICES OFFERED BY ADROLL, INC., DBA BRIGHTROLL ("COMPANY"). BY CLICKING ON THE "SUBMIT" BUTTON BELOW, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "SUBMIT" BUTTON BELOW, AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY COMPANY. COMPANY'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

The Web pages available at www.brightroll.com, and all linked pages unless indicated otherwise ("Site"), are owned and operated by Company, and are accessed by you ("Subscriber") under the following terms and conditions:

1. BrightRoll Network

(a) Membership. Membership in the BrightRoll network is subject to prior approval by BrightRoll. BrightRoll reserves the right to refuse service to any new or existing Subscriber for any reason, in its sole discretion. Approval of membership in the network is limited only to the domains and/or specific root URLs for which Subscriber has applied for approval by BrightRoll. BrightRoll reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Subscriber any reason at any time with or without notice to the Subscriber and regardless of whether such Subscriber or Website was previously accepted. This Agreement is voidable by BrightRoll immediately if Subscriber fails to disclose, conceals or misrepresents itself in any way.

(b) Services. Subscriber understands and agrees that from time to time the BrightRoll ad serving services may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which BrightRoll may undertake from time to time; or (iii) causes beyond the control of BrightRoll or which are not reasonably foreseeable by BrightRoll, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of Websites or interfaces, network congestion or other failures. While BrightRoll will attempt to provide the services on a continuous basis, Subscriber acknowledges and agrees that BrightRoll has no control over the availability of the services on a continuous or uninterrupted basis. Subscriber also understands and agrees that BrightRoll is not responsible for the functionality of any third-party Website or interface. Terms of this Agreement are subject to BrightRoll hardware, software, and bandwidth traffic limitations. Failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.

2. Website Content and Prohibited Conduct

(a)  Prohibited Conduct. BrightRoll does not accept Websites that produce, relate to or have characteristics of Prohibited Conduct. "Prohibited Conduct" is defined as:

(i). Ad Placement & Tracking. Subscriber shall not: (1) Place Ads in emails; (2) Incentivize offers or create the appearance to incentivize offers; (3) Place statements near the Ads that encourage the Subscriber's website visitors to "click" on the Ad (i.e., "Please click here") or "visit" the sponsor (i.e., "Please visit our sponsor"); (4) Place misleading statements near the Ad (i.e., "You will win $5,000."); (5) Serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of BrightRoll; (6) Use invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (7) Attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Website tags, source codes, links, pixels, modules or other data provided by or obtained from BrightRoll that allows BrightRoll to measure ad performance and provide its service.

(ii). Websites. Subscriber shall not place any Creatives or Ads on Websites that contain, promote, reference or have links to: (1) software piracy (warez, cracking, etc.), hacking, phreaking, emulators, ROM's, or illegal MP3 activity.; (2) illegal activities, deceptive practices or violations of the intellectual property or privacy rights of others.

(b) Subscriber is under no obligation to accept all creative, promotional or Advertiser content provided by BrightRoll for display on Subscriber’s sites.  BrightRoll may pre-approve all Advertiser content and offers to ensure that they meet Subscriber’s advertising guidelines; however, Subscriber reserves the right, in its sole discretion and without liability, to reject, omit or refuse any creative, promotional or Advertiser content for display on Subscriber’s sites.  Subscriber further reserves the right, in it sole discretion and without liability, to remove any creative, promotional or Advertiser content on display on Subscriber’s sites.

3. Advertising Revenue

(a)  Advertising Revenue will be shared by the parties as follows: fifty (50%) percent to BrightRoll and fifty (50%) percent to Subscriber.  For purposes of this section, “Advertising Revenue” means the total compensation actually received by BrightRoll as a result of any advertising content provided by BrightRoll and displayed on Subscriber’s sites whether such revenue is determined on a Cost per Impression (CPM), Cost per Click (CPC) or Cost per Action (CPA) basis, or as a result of any other payment arrangement entered into between BrightRoll and an Advertiser or between BrightRoll and Subscriber. 

(b) Payment Terms.  All Advertising Revenue due and owing to Subscriber pursuant to this Agreement shall be paid on a monthly basis on the fifteenth of each month.

(c) BrightRoll Records. For two (2) years after receipt by BrightRoll of Advertising Revenue, BrightRoll will maintain records and books, in accordance with generally accepted accounting principles, regarding all payments due under this Agreement.

(d) Daily Activity Reports.  BrightRoll will make daily reports available via a web interface at http://www.brightroll.com.

(e) Monthly Payment Reports.  Within thirty (30) days after the end of each calendar month, BrightRoll will deliver to Subscriber a report which will provide all information reasonably necessary for computation and confirmation of payments due to Subscriber from BrightRoll under this Agreement. 

4. Representations and Warranties

(a) Subscriber acknowledges and agrees that Company has no special relationship with or fiduciary duty to Subscriber and that Company has no control over, and no duty to take any action regarding: which users gains access to the Site or Services; what Content Subscriber accesses or receives via the Site or Services; what Content other subscribers may make available, publish or promote in connection with the Services; what effects any Content may have on Subscriber or its users or customers; how Subscriber or its users or customers may interpret, view or use the Content; what actions Subscriber or its users or customers may take as a result of having been exposed to the Content, or whether Content is being displayed properly in connection with the Services.

(b) Further, (i) if Subscriber is a publisher, Subscriber specifically acknowledges and agrees that Company has no control over (and is merely a passive conduit with respect to) any Content that may be submitted or published by any advertiser, and that Subscriber is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to Subscriber, and (ii) if Subscriber is an advertiser, Subscriber specifically acknowledges and agrees that Company has no control over any Content that may be available or published on any publisher website (or otherwise), and that Subscriber is solely responsible (and assumes all liability and risk) for determining whether or not such Content is appropriate or acceptable to Subscriber.

(c) Subscriber releases Company from all liability in any way relating to Subscriber's acquisition (or failure to acquire), provision, use or other activity with respect to Content in connection with the Site or Services. The Site may contain, or direct Subscriber to sites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Site or Services, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or Services. Company makes no guarantee regarding the level of impressions of or clicks on any advertisement, the timing of delivery of such impressions and/or clicks, or the amount of any payment to be made to Subscriber in connection with the Services.

(d) THE SERVICES, CONTENT AND SITE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND SUBSCRIBER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.

(e) ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE (18USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON OR THROUGH THE SITE, SERVICES OR ANY WEBSITE LINKED TO THE SITE. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company's equipment, transmitted over networks accessed by the Site, or otherwise connected with Subscriber's use of the Services.

5. Marketing and Promotion

(a) Promotional Materials.  BrightRoll shall, subject to Subscriber's prior approval (which shall not be unreasonably withheld or denied), have the right to include Subscriber (and reference its trade names, trademarks, and service marks) in any marketing, advertising, or other promotional materials, excluding press releases (which are governed by subpart (c) below), related to this Agreement (the "Promotional Materials").  Once Subscriber has approved any Promotional Materials, BrightRoll shall have the right to continue using such approved Promotional Materials so long as they remain accurate.

(b)  Trademark License.  During the Term of this Agreement, each party hereby grants to the other party a non-exclusive, non-sublicenseable, non-transferable, royalty-free, revocable right and license to use, display and reproduce such party’s name, logo, trademarks and service marks, solely for the purposes of displaying and maintaining the Subscriber Pages and BrightRoll Service and, subject to subpart (a) above, for marketing and promoting the BrightRoll Service as set forth in this Agreement. Each party acknowledges that the other party’s Trademark is and will remain the exclusive property of such party and all use by each party of any Trademark will inure solely to the benefit of the owning party.  Neither this Agreement nor any rights granted hereunder will operate as a transfer of any rights in or to any Trademark, except for the limited rights expressly granted under this Agreement

(c)  Press Releases.  BrightRoll shall, subject to the Subscriber's prior approval (which shall not be unreasonably withheld or denied), have the right to include Subscriber’s name in any press release relating to this Agreement.

6. Indemnification

(a) Subscriber shall indemnify BrightRoll and any BrightRoll advertising partner from and against any claims, liabilities, losses, damages, costs and expenses, including reasonable attorney’s fees, arising in connection with an claim or allegation that the Subscriber’s sites, including any content therein, excluding content provided by BrightRoll: (a) infringe any third party’s patent, copyright, trade secret or other intellectual property right; or (b) violate any law or regulation; or (c) violate any right of or cause injury to any third party, including any right of publicity or privacy, or are defamatory or obscene. 

(b) BrightRoll shall indemnify and hold harmless, Subscriber from and against any claims, liabilities, losses, damages, costs and expenses, arising out of legal liability relating to any advertisement provided by BrightRoll for display on Subscriber’s sites, and/or any material to which users can link through such advertisement.

7. Term and Termination

(a) Termination by BrightRoll. This Agreement, as may be amended, applies to Subscriber for as long as Subscriber distributes Ads for BrightRoll.  BrightRoll reserves the right to terminate any Subscriber from the Network at any time, with or without cause.

(b) Termination by Subscriber.  Subscriber reserves the right to terminate this Agreement at any time, with or without cause, and to cease display of any creative, promotional or Advertiser content on Subscriber’s sites.

(c) Post-termination. Upon termination, Subscriber agrees to immediately remove from the Websites any and all BrightRoll ad serving code supplied to Subscriber by BrightRoll. Subscriber will be paid, in the next scheduled payment cycle following termination, all legitimate, non-fraudulently accrued, earnings due up to the time of termination.

8. Choice of Law and Attorneys' Fees.  This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in San Francisco, California.

9. Notice.  Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for BrightRoll, via registered mail, return receipt requested or via an internationally recognized express mail carrier to: 2106 Scott Street, Ste. C, San Francisco, CA 94115, (effective upon actual receipt); and, (ii) for Subscriber at the email and physical address listed above via registered mail, return receipt requested or via an internationally recognized express mail carrier.

10. Assignment.  No rights or obligations under this Agreement may be assigned by Subscriber without the prior written consent of BrightRoll. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. Upon notice to Subscriber, BrightRoll and any of its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

11. Force Majeure.  Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

12. Survival and Severability.  Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening. Each Party acknowledges that the provisions of the Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. All provisions are inserted conditionally on their being valid in law. In the event that any provision of the Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the Parties to the Agreement, then (i) such provision will 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 the Agreement will remain in full force and effect.

13. Remedies and Waiver.  Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Failure of either party to require strict performance by the other party of any provision shall not affect the first party's right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.