Google v. Pacific Webworks

Filing 86

REPLY to Response to Motion re 73 MOTION to Dismiss Bloosky's Third-Party Complaint filed by ThirdParty Defendant Pacific Webworks. (Attachments: # 1 Exhibit A)(Mansfield, Robert)

Google v. Pacific Webworks

Doc. 86 Att. 1

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Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Edmund W. Robb Foster Pepper LLC 1111 3rd Avenue Suite 3400 Seattle, WA 98101-3299

CERTIFICATE OF SERVICE I hereby certify that on this day, I caused the foregoing document to be served via the Court's CM/ECF system on the following: Clifford A. Cantor Law Offices of Clifford A. Cantor, P.C. 627 208th Ave. SE Sammamish, WA 98074 [e-mail] Rafey S. Balabanian Christopher Dore Edelson McGuire LLC 350 North LaSalle, Suite 1300 Chicago, Illinois 60654 [e-mail] [e-mail] Ina B. Scher Davis & Gilbert LLP 1740 Broadway New York, NY 10019

Benjamin I. VandenBerghe Peggy C. Hughes Montgomery Purdue Blankinship & Austin 701 5th Ave. Suite 5500 Seattle, WA 98104-7096

Blaine C. Kimrey Bryan K. Clark Lathrop & Gage, LLP 100 N. Riverside Plaza Suite 2100 Chicago, IL 60606

DATED this 25th day of October, 2010. Of Counsel: By /s/ Adam C. Buck Robert E. Mansfield* Todd M. Shaughnessy* J. Elizabeth Haws* Adam C. Buck* Snell & Wilmer L.L.P. 15 West South Temple, Suite 1200 Salt Lake City, Utah 84101-1004 Telephone: [phone] Fax: [phone] *admitted pro hac vice

DECLARATION OF KENNETH BELL IN SUPPORT OF PACIFIC WEBWORKS' MOTION TO DISMISS (C09-1815 TSZ)

3

Davis Wright Tremaine LLP
LAW OFFICES Suite 2200 1201 Third Avenue [phone]
Seattle, Washington 98101-3045 Fax: [phone]

12101794

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EXHIBIT A

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MASTER ADVERIISING AGREEMENT
THIS MASTER ADVERTISlNG AGREEMET (hereinafer ¡¡Agreement") Is made and entered into as of the date on the signatue page below (the "Operative Date"), by and beteen Bloosky, LLC d.b"a. Bloosky Inteactive Media, LLC (hereiner the "Company") an Advertsex' as set
fort on the signtue page below (herei.r the "Adverser"). Adverser imd Company are

someties collectively refered to in tls Agreement as the pares ("Paities")
In consideration of

the covenants and conditions hereinafter set fort, the Parties agree as follows:

Company is in the business of marketig products and seivices onle through various mediums, Ù'icluding baners, links, WebPages, email and/or thou¡h its network of clients and afliates (hereinaei collectively "Bloosky Serice"); and
Advertser wishes to place one or more advertisements 01' promotions with the Bloosk Service and herby engages Company to do so,
THEREFORE, in consideration of

the forc¡oing and the mutul promises and covenants set

fort in ths Agreement, the PaItics agree to be legally bound as follows:

Definitions of Tenus of' Agreement

"Action"as defined on the Inserton Order, the act tht a User must complete in order for
Company to be paid the Cusomer Acquisition Fee by the Advertser or the Lead Genei'ation Fee

by the Advertser.. Advertsing campaigns conducted on a cost pel unit basis are known as CPA.
U Advertiser" has the meang set fort iii the preamble" 44Advertisement" meas the graphic(s), multimedia files(s), Web page(s) or text fie(s) provided

by Advertsei or cieated for Advertser. "Bloosky Service" ha the meang set forth in the prean~ble. "Click-Tbrough1' means the number of times, as recorded by Company's or a Bloosky Service's
seiver, a User diectly interacts with (i e.., clicks on) an Advertsement lined for transfer to the

Adveriser's site or suggested destination Adverising campaigns conducted on a cost per click
basis ar known as ¡¡CPC"

"Company" has the meang set forth in the preanible.

"Customer Acquisition Fçe" as set fort on the InseI1ion Order. 5'Lead" mea a potential customer of the Advertser that meets the criteria set fort on the
Inseron Order"

"Lead GeneratioD Fee" as .set fort 011 the Inseron Order "Insertion Order" means one or more advertsing inseron order(s). "Non-Vitble Lead" means a Lead tht (n) do not contain any accurate contact information or (b) do not reasonably ~atisfy such other criteria specifically set fort on the Inserton Order, provided,
howeve\', that a Lead shall not be coiiidered a Non.Viable Lead if it ha not been retued by Advertiser to the Company as provided ahove"
"Start Date" mean the fist day an Advertsement may be displayed on the Bloosky Servce.

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"User" means any person viewing or interactg with a Web Site, fie sei"Ved by a Web Site or
electronic mail services"

"Web Site" means one or more HTM or XML pages(s) containg information available via the Internet, or via services that connect to the Interet (including without limtation. cellular phone

serces).
1 Advertising Serviees.

1" 1 Unless otherwise noted on the Inserton Order. Advertiser hereby grants to Company

worldwide, royalty-free license to: (i) use, reproduce, display, publicly peifoiID, transmit,
distbute, and promote the Advertisement(s) in connection with providig the advertsing

services under ths Agrement; (ii) create Ot' develop Adverisement(s) or mae derivative
works of Adverisement(s) in connection with providig the advertsing sexvces uner ths Agreement; and (iii) grant tlurd patties the right to use, reproduce, make, display,

perform, copy, trsmit, distbute, and promote th Adverisement(s) on Web Sites with the Bloosky Serice" Company may fuer sublicene its rights uner tlús Section 1 i to its independent contractors tht provide serices to Company (including but not Ilited to
adverising services, web site hosting services, ad copy preparaton seivices. and email
campaign maagement servces) for providing the advertising seivices under ths

Agreement
i ,2 Company wil not place Advei1.sement(s) on the Bloosky Service until it receives and accepts a properly completed Insertion Order executed by Adveriser. Each Insertion
Order shall be deemed acceted by Company only upon signature by a duly authorized the Company; each Inerton Order wil not obligate the Company in any wiiy offcer of

until so accepted by the Company.

1.3 The Company's sole obligation to Adveriser under this Agreement with respect to
Adve.sement(s) shall be to place acceptable Adverseient(s) 011 the Bloosky Service subject to the provisions of ths Agreement.. Company has advised Advertiser. and

Advertser acknowledges, tht Web Sites parcipatinii in the Bloosky Servce are not
contrctly bound to carry any Advertsement(s).. Accordingly, placement of

Advertsement(s) shall be in the discretion of Company and subject to the right of any
member of

the Bloosky Service to reject any parcil1ar Adverisement

2 Adverting Restrctions and Conditions; Reserved Rights.
2.1 Notwithstanding any provision in this Agreement to the contrary, Company expressly reserves the right to: (i) refuse or cease to deliver any Advertsement, cancel any Inerton
Order. or change any Advertisement that does not completely conform to ever material
detail, intrction. method, and guideline set fort in the Inseition Order; (ii) refuse any

Adversement that does not anive fort-eight (48) hours piioi to the Sta Date; (iii)
refue any Advertisement that it deems) in its sole discretion, inappropriate for any reason or no reason; (iv) refue at any time to use, distbutei display, prmote, print or mail any copy, photogiaph, ilustration or multimedia fle of any kind for any reason, including,
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without limitation, those tht it believes, in its reasonable discretion, is an invasion of
privacy, is degradg, libelous, unlawf, profane, obscene, pornographic, tends to ridicule

or embars, is in bad tae, or which in its reasonable discretion is an infinge.ent on a

trademark, trade nae, or copyrght belonging to othrs; (v) refuse or cease to deliver any Adversement that is or can be hosted by a competitor of Company, directly or indiectly
competitive network; (vi) refue or cease to deliver any Adverisement which rediects nafc to a Web Site other than the site specifically identified in the Insertion Order; and (vii) refuse or cease to deliver any Advertsement which on its fae ass Users to take advantae of othel' Or additional o1rers or advertsements not specifically identified in the
Inserion Order.

2 2 Adverser shall provide all creative an substantive materials required for maketing the offei, including but not limited to: baners, languge/tex for suggested promotional
email text, lis, key words and any other creative content as needed, includig but not

limited to the us of Ð1ternative text based creative Company may, at its sole dìscJetion, develop, inodify or create ad copy,. creative or campaign strategies, although it will have
no obligation to do so or to meet any related requiements or specifications" Company inay

modify Adversements without the approval of Advertiser prior to placing them on the
Bloosky Servce, provided that such modification does not altei the meang of the the
content of

the Advertsement

23 Any Advertisement rejected by Company may be replaced by Advertiser; provided that any such replacement material must be in writing and accompaned by appropdate matenal identifying the Advertisement that it is to replace. Company shall notify Advertiser of the rejection of any Advertisexeiit, and shal have no liabilty to Advertser for any such re,jeetioo. F'urthet, Company shal have no liabilty to Adveitiser for failure to place any Advertsement on any paricular portion of the Bloosky Service

3 Auditing and Tracking of Campaigns.
3 1 Company utilizes a. trckig system that will serve as the 108 ofrespolles and as the registrations by UR, Origin ID1 or Affliate ID code. The infoxmatioll
the informtion differ from the information collected by

reporter of

collected by Company's txacking system will be used to compute the amounts owed by
and biled to Advertser, even if Advertser's tracking system, and even if

the Adveriser hosts the Advertisement(s).

1.2 In the event that Advertiser hosts the Advcrtseient(s), Company shall have the right to place trackig code on Advertser's Web Site as may be required to track and provide
estimated live statistics for Company's afliates. The techncal specifications of the

tracking system and its deliver methods must be met to the reasonable satisfaction of Company before any adversing or ad~sering will be provided by Company
3,3 AdvertseI shall provide, at nùoimwn, a weekly summar report reflecting U1c exact
number of Actions delivered" The Company, in its reasonable discreton and by
consultation with Advertiser, will determe the form of said repClfts. Advertiser may not

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revise or amend such report once submitted to the Company, uness Company agrees in
Wlitig to accept such revisions or amendments.,

34 Advertser a¡rces that it will u:;e the User data tht it receives in accordance with applicable law and prvay policies. Adveriser may use such data until the User unsubscribes 01 otherwse inicates a desire to no longer reeive such communcation. Advertser acknowledges and agrees that the User data that it receives was submitted by Usors that have eJected to eo.'register or sian up with Advertiser, as well as Company and othr companes offerig products or serices tht are advertsed, faciltated Or marketed
by Company (eah, a HCompany Customer"), Company and each Company Customer has
the right to market and communcate to suc Users, and are joint owners of

User data

consistent with the applicable policies and procedures of Company and its Customers

4. Payment.
4.1 Advertser will pay Company the Customer Acquisition Fee set forth iii the applicable
Inextíon Order for each and every User that arves at one or moi'e Advertser Web Sites

by means of a Company promotion and subsequently completes the required Action. For example, and without limtaton: if an individua responds to an advertsement from
Company, an selects a serice or produt of Adverser from the Bloosky Service and is

then sent to the Adverser site via a link, and subsequently purchases a product or service, then such User will be deemed a New Customer for which Advertser will owe Company
a Customer Acquisition Fee, Advertiser acknowledges tht many ofits customers begin
the purcbase process on-line, but conclude it thuiih one or morE. telephone calls.

Therefore, Adverser agrees that it will use promotion codes in its landing pages in a
maner reasonably acceptable to Company, and wil ask potential cusomers that

telephone for the promotion code on Adveser Web Site, and will track such promotion
coes and customers to detrme the New Customers"

42 Advertiser win pay Company the Lead Generation Fees set forth in the applicable Insertion Order for eah Lead collected by Company and transferred to Advertser by
HTTP Post, batch fie, or otherse. In the event Advertiser disputes the number of Leads

and/or clais that the Leads are Non-Viable Leads, it shal retu the Leads with five (5)

days afer receipt threof, which retu shall be accompaned by a detled explantion of
the rationae for the rejection of such Leads. consistent with ths Agreement. Company shall, in good faith, consider such documentation. but shall have final authonty in detenning the correct count of lead and non-viable leads" If Company deems the Leads to be valid. its deteIIation shall be deemed final an binding on the paries" In the event
tht Advertiser disputes the ultiate determation, it may, as its sole remedy, termnate

ths Agreement (and, therefore, any IO) inuediately. If Advertser elects to tenninate this Agreement ~ provided in ths para81aph, Advertser shall remai liable for all Leads delivered prior to an up to the (3) days afer tenntion,. Caps limiting the total
payment for Lead Generation Fees, if

any, must be cl~arly stated in the appHcable

Ineron Order, failing which there shall be no caps"
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4,3 Advertiser shal pay Company fol' Actions delivered and fees eared on a Bi-Monthy bass of when such Actions were delivered or such fees eaed" If Company does not receive a wrtten notication of a ,Usputed invoice with ten (i 0) days of the date of a Company invoice (other tha disp1.1te regardig Lead quaity which are governed by
Section 4..), with ratonale and support therefore specificaly set fort in such notice, the

invoice wil be deemed valid and payable and Adveriser may not dispute sueh invoice or the payment due under such invoice. Advertser specificaly agrees that this provision is reasonable and that Company wil rely upon ths provision in makg payments to
parcipants in its Bloosky Service"

44 Advertiser hereby expressly ackowledges that the dispute mechansms set forth in
Sections 4.2 an 4.3 are Advertser's sole reedy with respect to challenging the Customer Acquisition Fee or the Lead Geneiation Fee.. Advertiser shall have no recourse if the value of the Action or the Lead ends up being less tltan anticipated" For example, and without limtation, if Advertser ordiarily requires a twelve month servce contlact with its customers, and the User referrd by Company termates his or her servce afr the fist month, then Advertise wiJl still need to pay Company the Customer Acquisition Fee for that User.

4.5 In the event tht Advertiser faUs to pay aU or a portion ofthe amount due in the
invoice, Company may immediately remove any and all Advertsement from the BloQsky

Service without notice

4.6 In the event that Company has not received payment in full when such payment is due
under Section 4,,3 above, Advertiser shall pay Company an additional one and one-ha pereent (1,5%) of the outstandig balance per month, or th maximum interest allowable

under applicable law, whichever is less, until the outstading balance is paid in full.
4.7 In the event that Company must incur expenses related to collection of any outstandh'lg

balance and/oilate fees, Advertser shall imediately pay Company's reasonable expenses associated with said collection, includig, without limtation, reasonable attorney's and collection a¡ency's fees. Compwty, in its sole discretion, may remove the
Adverisement frm the Bloosky Servce and/or termate ths Agreement imediately if

Advertser fais to pay any amount due hereuner.
4.8 If Advertser chooses to have Company host its offer, as identified on the Inseron Orde.r, all data collection perormed by Company shall become the sole property of

Company.

S. Term, Termination, Payment of

Minimum Conttaet Price.

5.1 Ths Agreement shll contiue for th term set fort in any Inserton Order, provided
that either pary may terminate this Agreement upon ten (10) business days prior wrtten notice,
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5.2 ¡he forgoing notwthstanding, Company reseres the right to termate ths

Agrement inedìately in the event that either (i) the campaign does not meet minium
capaign performance criteria then curntly in place; or (ii) Advertser violates the payment terms set fort in Section 4"
6. Representations and WarrantielNon-Soliliitation.
6 1 Each par represents and warants to the other pary that (i)

such par has the full

corporate right, power, an authority to enter into this Agreement.. to gIant the rights and licenses grted and to peñorm the acts requied of it, (ii) the execution of ths Agreement by such par, and the performanc~ by such par of its obligations and duties, do not a.d
will not violate any agreement to which such par is a pa or by which it is otherwse

bound, oX' any applicable goveml:ntaJ law or regulation to which it is subject, and (iii)

when executed and delivered by such par, this Agreement wil constitute the legal, valid,
and binding obligation of such pary in accordance with its ters., Each par

acknowledges and agrees that it will not rely upon, or hold the other par to, any representations, waranties, or agreements related to subject matter ofthis Agreement that
ar not expressly provided for in this Agreement

6,2 Advertser represents and waants that (i) Advertser has a reasonable bais for all
clais made with its Advertisement(s) and possesses appropriate documentation to

substatiate such claims, (H) the landing page for each Advertisement (ie", the

Advertser's Web Site page where a consumer is directed when the consumer c:lìcks on an Adversement, fiUs in a registrtion form or takes a similar action on an Advertsement) contas a promient link to Advertiser's privacy policy, which policy provides, at a

trìmum, adequate notice, disclosur and choices to consumers regarding Advertser's
use, collection and disclosure of their personal inormation, (üi) Advertiser shall fufil all

commitments made in its Adverisements, (iv) no Advertisement is targeted to childrn
under the age oftleen, (v) under no circuistances will the Advertiser provide for the downoad onto a consumer's site of spyware, malware 01' sínlar such hami software and prior to loadg any other softare onto al individual's computer but excluding

cookies (provided that cookies are disclosed in Adveriser's privacy policy), Advertser
sha provide notice to and shall ohtain the express consent of such individua, and (vi)

Advertiser will not violate any applicable State, Federal or other law regarding the
collecton, use or destrction of User-related data,

63 Advertsex' represents and warrants that Advertser will maintain suffcient fraud

prevention and data validation technology, including without limtation standard address and credit card validation, where applicable (collectively uFraud Prevention") to ensure
tht the Actions or the Leads are non-fraudulent, and, in any event, Advertiser shall

maita such Fraud Prevention consistet with indus standards, AdvertseX' expressly

acknowledges that any damges resulting from Advertser's failure to maintain adequate Fraud Prevention shall be the exe1usive responsibilty of Adverser
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6,,4 Durg the term of

this Agreemet and for six (6) months hereafer, Advertiser shall

not knowi¡ly solicit anyon-line publisher, Web Site, or email prvider tha.t is afliated with Company, uness a previously existig business relationship between Advertiser and
such publisher ca be demonstrated to Compimy's reasonable satisfaction
7. No Additional Warranties.

7.1 THE ADVER'ISING SERVICE PROVIED BY COMPANY, ITS USE AND THE RESULTS OF SUCH USE AR PROVIDED ON AN "AS IS," '"AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMSSIBLE PURSUANT TO APPLICABLE

LAW, COMPAN MAKES NO WARRTIES (INCLUDING THE IMPLIED WARRTIES OF MERCHANTABILITY, FITESS FOR A PARTICULAR PUROSE, AND NON-INRIGEMEN). GUARANTEES, REPRESENlA nONS, PROMISES, STATEMENTS, ES'lIMTES, CONDITIONS, OR OTHER INDUCEMENTS, EXRESS, IMPLIED. ORA, WRTTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET PORTH IN THS AGREEMNT.. COMPANY DOES

NOT WARR OR GUARTEE CONVERSION RATES, PAY-UP RATES,
RESPONSE RATES OR ABILITY TO CONVRT tHE RESPONSES INTO SALES,

CO~ANY DOES NOT WART OR GUARTEE IHE PROBLE OR
DEMOGRAHICS OF A RESPONDENT. COMPANY DOES NOT GUARTEE TO MATCH COLORS, lEXT, PHOTO IMAGE OR SCREEN DESIGN. COiyPANY WIL MA EVERY EFF'ORT TO MEET SCHEDULED DELIVERY AN ON.LINE DATES, BUT MAS NO GUARTEE AN ACCEPTS NO LIABILITY FOR 11'S FAILUR TO MEET SAI DATES.
7,2 ADVERTISER ACKNOWLDGES AN AGREES THAT COMPANY is MEREL Y A VENU WHICH FACILITATES RELATIONSHIS BETWEEN TH ADVERTISER AND PUBLISHERS. COMPANY HAS NO OBLIGATION FOR OR RELArINO TO REVIEWIG OR OTHWISE SCREENING ADVERTISEMENTS FOR INCLUSION ON THE BLOOSKY SERVICE, AND SHALL NOT BE RESPONSIBLE FOR POLICING1 MONITORIG OR EDITING ANY

ADVERTISEMET.
8" Limitation of Liability.
81 EXCEPT AS EXPRESSLY PROVIDED BELOW WIIH REPECl TO

INDEMNIFICAIION, UNER NO CIRCUMSTANCES SHAlL EITHER PARTY BE LIABLE TO TH OTHER FOR INDIRECT, INCIDENlAL, CONSEQUENTIAL, SPECIAL OR EXE:MLARY DAMGES, INCLUDING LOST PROFITS OR LOST DATA (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMGES), WHETHER IN CONTRACT, TORT, NEGLIGENCE, S IRICT

LIAILITY. STATUTORY OR OTHEWISE ARSINO FROM THIS AGREEMET,
THE BLOOSKY SERVICE OR ANY ASPECT OF THE ADVERTISING RELATIONSHI PROVIDED IN THIS AGREEMENT. COMPANY SHALL NOT IN ANY EVENT BE LIALE TO ADVERTISER FOR MORE THAN THE LESSER OF
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(A) THE AMOUNT PAID BY ADVERTISER

FOR THE INSERIION ORDER A1

ISSUE FOR THE THRMONT PERIOD PRECEDING TI DATE ON WHCH
TH CLAIM AROSE OR (B) THE AMOUNT PAI BY ADVERTISER HEREUNDER FOR THE 'IWEL VE.MONTI PERIOD PRECEDlNG TH DATE ON WHCH TH CLAIM AROSE. NO ACTION, SUIT OR PROCEEDING SHAI.L BE BROUGfI

AGAIST COMPAN MORE TH ONE YE AFTER TIiB DATE OF SERVICE.
THE FOREGOING LIMIlA TlONS OF LIABILITY AR INEPENDENT OF' ANY REMEDIES HEREUNDER AN APPLY REGARLESS OF WHETHER ANY
REMEDY FAILS OF ITS ESSENTIAL PUROSE
9. Indemnifçation..

9.1 Advertiser is solely responsible for any legal liabilty arsing out of or relating to (i) the Advertisement, and/or (ü) any material to which a User can link though the Advertsement, to the extent that such Advertsement has not been altered or modified in any material way by Company without Advertser's diiection or approval Advertisei and Company shall inemnfy, defend, and hold haress Company an or Advertiser and its offcers, a¡ents, afliates and employees from and agait all claims, actions, liabilties, losses, expenses, damges, and costs (includig, without limtation, teasonable attorney's
fees) tht may at any time be incured by any of them arsing frm or relatig to any
claims, suits, or proceedings (a) alleging libel, defamtion, violation Ofiiihts of

privacy or

publicity, copyright inement, trademark inngement 01 other inement of any thrd pary nght, fraud, false advei tising, misrepresentation, product liabilty, violation of Adveriser's prvacy policy, or violation of any law, statute, ordinance, rule or reguation thoughout the world arsing from or relating to the Advertisement Ot' with persona
informatioii collected 01 used by Advertser, including without limtation the CoiitroUing the Assault of Non-Solicited Pornography and Market Act, the National Do Not Call Registr and the State Do Not Call lists; (b) arisin out of any breac by Advertser of any duty, representation 01' waranty ul'lder this Agreement; (0) arising out or any breach by Company of any duty, repesentation or waanty under ths Agreement to place the Advertsement on the Bloosky Service due to any breach by Advertser of ths Agreement; (d) relatiiig to a containated fie, ViM) wonn, Trojan horse or other inalicious computer
progr origitig from the Advertsement; or (e) relatig to any adware or spyware

used by or on behaf of Adveriser.
10.. GeneraL

other par of any provision of

10,, Waiver. The fiilure ofc:ther patty to insist upon or enforce stct perormance by the this Agreement or to exerise any right under ths

Agreement wil not be constred as a waiver or relinquishment to any extent of such pary's right to assert or rely upOn any such provision or right in that or any other instance;
rather the same will be and rema in ful force and effect
10..2 Force Majeure. Company shnlJ not be liable for. or considered in breach of

or default

under ths Agreement on account of, any delay or failure to pexfonn as required by ths
Agreement as a result of

my causes or conditions which are beyond Company's
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reasonable control (including without limitation, the failure of the BJoosk Service to display or place an Advertsement),

10,3 Independent Contractors, Ihe Paries to this Agreement are independent contrctors.
Neither par isW1 agent. representative, parei~ employee, or joint ventue of

the othei

par Neithe,r pary wil have any right, power, or authority to enter into any agreement on

behalf of, or incur any obligation or liabilty of, 01 to otherse bind the other part. 'This

Agreement will not be interpreted or constred to create an association, agency, joint venl:ure, or parershp beten the Pares or to impose any liabìl ity attibutable to such a relationship upon either par.

10.4 Surival Any obligations which expressly or by their natue are to continue afer
tetion, cancellation, or expiration of

ths Agreement shal surve and rem in

effect afer such happenig, including without limtation. Sections ),1,3.3 (until all report are delivered), 41 - 4,6 (until all amounts due are paid). 4 6, 4.7, and 6 - 10.. .
10..5 Constction; Severabilty. This Agreement will be deemed to have been drafted by
both pares. and Advertser expressly waives the fi¡ht to argue that ambiguities, if any,

should be construed agai the Company" Each par acknowledges tht the provísions of ths Agreement were negotiated to reflect an informed, volunta allocation between them of all the risks (both known and unown) associated with the tranactions contemplated
hereunder, In the event tht any provision of ths Agreeent conficts with me law under wlucli ths Agreement is to be con:itiued or if any such provision is held invalid or

unenfoX"ceable by a cour with jursdiction over the Parties to this Agreement (i) such
provision wil be restated to reflect as nearly as possible the original intentions of

Paries in accordance with applicable law, and (ii) the remaiing 1erms, proviions, covenats, and restdctions of ths Agreement wil remai in ful force and effect.

the

10.6 Entire Agreement. This Agreement coupled with the inserton order consitutes the

entie and only agreement and supersedes any and all prior agreements, whether wrtten,
Oial, express, or implied, of

the Parties with respect to the matters set fort 10 this

Agreement. Neither par will be bound by, and each pary specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions
of

ths Agreement (whether or not it would mateally alter ths Agreement) and which is

proffered by such par in any conespondence OJ' other document. uness the par to be

bound specifically agrees to such provision(s) in WIiti signed oX' initialed by such par.
Ths Agreement includes any Insertion Order(s) accepted by both paries as provided in

this Agreement. llùs Agreement will govern each and every Insertion Order without the
need for ths Agreement to be signed with each Inserton Order, Each Insertion Order is a
mateiial par of this Agreement. The ters and conditions of

this Agreement will be

deemed to modify (or if modification is not possible, will supersede) any tenn in any
Insertion Order tht are less favorable to Company..

10,,7 Amendment. No change, amendment, or

modifcation of

any provision otthis

Agreement wil be valid unless set fort in a written instrument signed by both Paries
9

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 11 of 18

10.8 Headigs" The captions and beadigs used in ths Ageement are iner for
convenence only and wil not affect th mea.g or interpretation of

ths Agreement

109 Counterpar" This Agreement may be executed in counterpar, eac of be deemed an original and all of

which will

which together wil constitute one an the sanie

document If ths document was delivered to Adverser in an electronic form, then Adveriser represents and waxrats that it did not modiy the document afer its receipt and
before its execution

1010 Governng Law; Jursdiction and Venue" This Agreement shall be ¡oveined by the
laws of the State ofNev withut respect to choice of

Jaw rues and the Paries hereby

consent to exclusive junsdicton and venue in the state and federal cours in aid serving
Clark County, Nevada" The Paries waive the personal service of any ptocess upon them

and agree mat seivice may be completed by overnight mail (using a commercially
recognzed servce) or by U.S.. mal with delivery receipt to the address stated in ths
Agreement. Company shal be entitled

to recover all reasonable costs of collection (includlng attorney's fees, in-house cowisel costs, expenses and costs) incUJred in attempting to collect payment from Advertser.
10.11 Notice. All notices~ request, demands, and other communcations hereunder shall

be in writig and shall be deemed given at the tie such communcation is sent by t'cgistered or certified mail (retrn receipt requested), or recognized national overnight
courer servce, or delivered personaly, to the followig addresses (or at such other

address for a par as shall be specifed by like notice):

IN WITNSS WHRE
date set fort abovep

Customer Signatue
Printed N ameIitle

'r caus t1s Agnt 10 be duly exted.. oflhe

Full Corporate Name_

Phone ~C'rz'i..tt!Ml _______ £L.¿ ¿. r ,. /e? / Fax. /!I.. r7't-f:4" _ ..
Pxima Address I 6'12 f. y" t! f4. .1.. -It ¥Ø'.d

Customei ID# _____

Email .' &""'46;e . /.d/,l:ç. iN~f./;,,.""

Contract No. I

Títle_.. ~~!? ~-= __

B.goOtukyln~_ iS Si na e . ~
---

Operative Da~'=__I-!_=-w-

10

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 12 of 18

"-

,

.. insertion order

io.~, çivenlda fablcente

san clemente, ca 92672
bloosky accu!"t executive ;i chrlstine Knoll
p. 888.529.3618

f. 888.5340264
e. Cknoll(abloosky.tol1

advertiser information
atlvèil~r¡ I:êrfti WetMork, Inc.
advertiser contact: Marc Bell
blUIng contact: Marc Bell

aödr-.-: 23Ö W. 400 S.

address: 230 w. 400 S.

address2: FIrs Floor
cll;, st~i ~lp: Salt Lakl! èltv, UT 84101

phone: [phone]iO ext. 110
fax: [phone]i9

address2: Firs Floor city, state, zip: Salt Lçke City, UT 84101 phone: [phone] ext. 110
fax: [phone]

emall;)matdCWpadfli:bwork.Com

small i marsbiRaclfJcwebw~ïki.!J

campaign specifies ;: check al! that apply.
caftpålgn Mame: Online si~ Kit

qualifyIng action: Sale - page 2
payment teii: Net is

o li$t
r8 non-hosted ~ exclU$lve

start date: !YiQ20oa wend date: WQ
.. . ,;P. CP ii' .iilî .5S....PC.? . 'r . . I'
", J

'J 'r
o email weekly
o downlo~Q vIa link

II ('

tnedla
18 ên'arl
ig ~an;h
f8 banners

suppression fie retrhaval
18 download via jog-in

18 i;tli~r: JJtA~
spe(:ial notes:
US ONL,Yt currently no suppressIon fife thIs i$ a br¡nd new offer. All fraudulent feacls need to be report back to eioosky with In 5 days of the lead being generated. No cash/Point Inç0ntlves allowed without ~dvertlser aPl:roval.

o co

I1tex1,al

..

~ authorized signatures

today's date: 1/20/2008
:; bloosky interactive

Signature:: ~:: =: ..
Title:: ChrIs S;-bUry, ~z Dev

today's date: lV14l2008
~ advei-iSè" 1;;.1' "3

SigNature :.

Printed Name ::

¿lqrc~
bloosky Intlirt\i;tìve ) blooi;ky.com
NIb I

r',

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 13 of 18

Impo/tlJnt note: AdvertIser i1grf;es to the TeH1$ Dnd Condil:oni: tJttt:hed tò this åocument. ThIs agreement mtJy bè eXet;uted vie fiJl;lml/e s1d in countepart.
please fax signed Irt$ertlon order.

to:

~ advertiser terms & conditions
;: terms and conditions
These Terms and CondItions shall govern this insertion Order (the "10"), which Is entereçt Into as of the date 011 the signature page above by and between Bloosky interactive rBloosky") and thé Advertlser
identified above (çollectlvely, the ~ PartIes").
;) 1. advertising servÎ(;es

Advertiser sliall provIde Blooy wIth Its advertisement, whlçh must Include all creatIve i'nc substantive mc1terlals required to m;¡rk;et thi; offer, Including (i) all product and/or service descriptions, (II) graphic
Images and/or logos, (ILL) emiill from and subject lines, (Iv) language i;nd text for the advertisement, (v)

links, (vi) key words and (viI) any and all other creative content.

Advertiser grants to Bloosky, Its agents ancl Its afFilates, a worldwide, royalty-free license to use,
reproduce, dIsplay, publicly perfomi, transmIt, dIstribute, and promote the advertisement, inciuding any
ánd ell trademarks, service marks, tnide dress, logos, copyrights, publicIty rIghts or other in

propert utll;iei; In the Advertisement. Advertiser acknowledges Qnd agrees that, in oròer to provide the
¡¡r;vertfslng services under this 10, Bloosky mçiy sublicense and/or assign Its rights under this section to

tellectl,çi

I

one ör rrore inóeptmdent contractors that provide services for I3Joosky (including, bl,t not limited to,
advertising services, web site hostIng servlces¡ ad copy preparation serv/ces, Ðnd emall Campaign mant)gerrent setvces).

Along with Its advertisement, Advertiser shall provlde Bloosky with an ern~1l suppression file, In the rnanner speclf1ed Glbove, In order to remove consumers who have "opted out" of receiving future
advertisements from Advertiser. Afterwards, on a recurring basis, AdvertIser shall provide 6100sky with an updated sUPPrisslon file, In the manner prövided above, on every Fifth (5) ço/endêlt day thereafter, or
sooher. Advertiser shall permIt Bloosky to "seed" Aclvertlser's suPprisslon data In

consumers who have opted out of receiving advertisements from Advertiser are Indeed removed.

order to ensure that

aiooky's sole obligation shall be to place tte advertlsement on Its netork, subjec to the proVISions of this 10.

Bloosky has advIse Advertiær, ólncl Aclertlser acknowledges, that 13loosky's affliates and Independent
contraors partcipatIng In Its netork are not obligate to æny, trnsmlt, market or publish any advettisernent.

ACClrdlngly, plácement of an advettisement shall be sl,b;lec to the right of any affiliate or independent contractor to deçllne any advertsement.

Bloosky expressly reserves the right to refuse or cease to deliver einy advertisement., or cancel ciny 10,
that It deems, In Its sole dIscretion, Is Inappropriate for any reason or no re¡¡son, Including, without

limitation, any advertisement that BIOOsky believes Is an Invasion of privacy, degrading, libelol,s, unlawful, deceptive, profane, obscene, pornogniphlc,tends to rIdicule or embarrass, is In bad taste, or that, in Its reasonable discretion, Is an Infringement on a trademark, service mark, trade dress, trade name, logo, publicity right, copyright or other IntellectuaJ properl rIght of another.
, 2. audfting and tracking of campaigns

aloosky utilizes a tracking system that wff log consumer responses and report registratIons by URl, Origin

1D, or AfflIate ID code. The Information collected by Bloosky's tracking syiit.em will be used to compute
the arnounts owed by and I;llled to AdvertIser.

:: 3. payment
AdvertIser shall pay Bloosky for advertslng published by Broosky óri ¡; cost per acton or "CPA" basis in
accOlance with the terms of this 10. Blciky shall submIt InVOices to Advertiser on a weekly basis. On or
before the fiftenth (1st) calendar day following the date of an Invoice, Adverlser shall remit payment by wIre Ltn$ler or check to Broosk , at the addres listed ábove, unles otherwise set forth on pàge one¡ of this 10.

In the evnt Advettser fails to pay all Or a porlon of an amount due In an Invoice, Bloosky may Immediately

remove any and all of Advertser's çii;ertlsements wIthout notçe. Payments not made within thirt (30) days
fOllOWIng the¡ date of an InvoIce shall accrue interest àt a ral; of 1.5% per month.

i:roosky Interactive ~ b1oosky.tom
II

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 14 of 18

Xn the event Bloosky Incurs expenses arising from or relate to collecon of any outsnding balance, Advertiser

shall pay eioosky's reasoniible expenses assiated with the collectIon, Inclvdlng, wIthout IImltatlon, reasOnable

attmeys' fees and cos, and collecon agency's fees and costs.
1n the event AdvertIser dIspute the number of actlon$ li an invoice Or cllms that any actions are l'n-viablé, It
shall rèm the disput aclons witin fIe (5) calendar days aft rèlpt of a dlspi. acton, along with a

detailed explaMtlon of Aóvertser's rationale for rejectIng any actonii. B100ky shall, In good faltli, consldlir sl,ch
documentation, but shall have final authority In åetermlnln!; t;æ total count of actlons fo billng purpse.

;: 4. term, termrn~tion, payment of minimum (:onttaCt priçe
ThIs io shan continue for the term set inrth above, provided that eIther Part may terminate thIs 10 upon ten
(10) business days prior written notice.

Notwlthstndlng,Blooky reserves the rlght to terminate thIs 10 Immediately In the event that: (i) the campaign cloes not meet tnlhirnum campaign performance criteria then currntly In place; (II) Aåviertser vlolati the payment terms set fort herin; (Il) Adversers aóvertsement vlolates any law, n.ile or reulation; or (iv)
Bloosky Is require, by raw or mutt order, to cease or terminate Advertser's advertisement.

Advertse reprents and warrnts that It has a reasonablr¡ oosls for all claims made wIthin Its advertsement
and possesses approprlate documentation to substantiate such claIms; the landing page for el,çh advertIsement

advertising. .

~ 5. mi$r;ell~U1eous provisions

each Part represents and warrnts It has the power, right and autliorlty to enter Into this iO; to grant the rights

and licenses 9rnnted hereln¡ and to perfrm the act required In this 10. Each Part represents and warrants
that It will f\lly çomply with all applicable statutes, rules and regulations wIth respect to its respectve buslness, Including, but not limited to, the CAN-SPAM Act of 2003, and laws rel,latlng deceptive trade practce and

contains a prominent link to Aivl\rtser's privacy policy, which policy provides, ~t a minImum, adequate notice, discosure and choIce to consl,mei; reardlng Advertlsers use, collection and disclosure of their personal fnformatlon¡ Advertser shall fulfill i:ll commItments made In it i;i;vertsement¡ no advertisement is targeted to
children; under no circumstances wlll:e AdvertIser proide for the download OntO a consumei'$ sIte of spyw~re,

malware or similar suct liarmfil softare; and Advertiser wil not violate çiny I,ppllcable Stite, Federel or other law reardIng the collecIon, use or destruction of USer-relat:d data.
Along wIth thIs IO, Advertser ~hi;ri proide Bloosky with a copy of it Prtacy Policy and Terms of Use. In the event Advertse modifes or ctanges Its Pnvacy Polle or Terms of Use, Advertser shall provIde written notlce to
aioosky, along with a r;py of the modified Privacy Policy and/or terms of Use, at least seven (7) business days
prlor to Advertse¡'s Implementation of tt~ modlfled Prlv¡;çy Policy and/or Terms of Use.

Advertser shåll provide Blooky with writ:èn notice of any proposed changes to Or replacement of an
advertisement (Including any Images or links) or landing page at least three (3) busines days pi10r to the
r;~nge or replacement.

Upon request, Advertser shall provide Bloosky with any and all documentation that support any claims made In

an advertiiiement withIn five (5) busines days of the reques. Thereaftr, Aivertlser shall cooperate with any follöW-up quesons by Bloosky relating to such documentation, Including, but not limIted to, tnaklnr; avi;llable any and all of Advertlsers employees who are InvQlved wIth, knowledgeable of or responsible for Ðny claims made In an adversement or the documentation supportng such claims. AdvertIser acknowledges that any

deleiys by It In rurtlllfng ll; obligations set fort in this parçgrçph wil delay Bloosky's ability to pl~ce an
advertsement on Its network.

OutinQ the tenn of this 10 and for six (6) months herafer, AdvertIser shall not knowingly sollclt anyon-line publisher, Web SL~, or em~(l provIder thi;t IS affliated wIth aioosk, unless e preiously existing business
relationship betweeh Advertser and such publisher can be dei-nstte to aioosky's resonable satIsfactIon.

Advertiser agrees to IndemnIfy and hold Bloosky and Its memberS, offcers, dIrectors, employees and agents (collecively, the "lndemnltees") harmless from and defend e¡ich such lndemnltee ¡ig9lnst einy damages,
liabilities, losse, taxes, l'nes, penalties, costs, and expenses (Including, without iimitation, reasonable fees of

coun!il and relat;d costs) of any kInd or nature whatsoever (whether or not arising out of thlrd-pçirt claims and
iiicludlng all amovnts paId In investgation, defense or settement of the foregoing), as the same are or may be

rnCUl'd, Which may be Sl,stlned or sufered by any Indemnitee In col1neclon with any present Or fl,ture
threatened, pending or contemplated investigation, claim, action, suIt or proeding, whether civil, crlmln"r admlnlslrl:ve or Investigative, to whIch any such Indemnitee is Or was a part or Is threatened to be m~de ~
part, and that arlses frm or Is relate to this IO or Advertisers advertIsement.

bloosky InteraçtÎve ;- bloosky.çom

t I ii

r*

. i.
Case 2:09-cv-01815-TSZ Document 63-1 Filed 10/25/10 Page 15 of 18

This 10 sHall be goverred by the laws of the state of californIa without repect to cholæ of lçiw rlles ;;nd the
Pêlrte~ hereby consent to exclusive jurtsólcton and venue In the state and federal courts in and serving Orange CountY, california.

The Parties to the 10 are Independent contrctrs. Neither part Is an agent, representatlve, partner or
employee of the other part. Neither p;;rt wil have any light, power, or authority to enter Inl'O élny agreement

on behalf of, or fnCIr any obllgatfon or lfabllty of, or to otheiwî5e bind the other part. The 10 wil not be
Interpreted or constred to crate an aSSQcli;l;on, agency, joInt venture, Or partnership between the Parties or to

Impose any liabilIty attIbutable to such a relationship upon either part.

The Partes rel1IZe and ~cknowledge that they have acquIre and/or wll acquire confidential Information and
trde

sects (hereaftr "Conflåenl;i;l InfOrmtion") from and/or concerning the other Patt, and their parents,

subsidiaries, aflllfet;s, and acquire bl,slnesses. The Partes shall not, dUnng or aftr the Term, use or disclose
'lny Confidential lnfbatlon to any pen, finn, coration, aSSClátlon, or ;¡ny other Pel50n Qr entity for Çlny

reason or purpose whatsoever, directly or Indirely, except as required to perform their respectIve duties
hereunder or as t'Clulred by l;;w. in the event of termination of this 10, Whether voluntary Or involuntary, and

Whether InItiated by Advertse or Blooky, or upon reues of Blooky at any timei the Pçirtes shell deliver to one another all docments end data pertIning to the COnfident;1 Informtlon and shall not take or remove any docments or data of any kInd or any reprouctons (In whole or In part) or extract of any items relating to any

Confidentlallnfot1atlon. NeIther Part shall, at any time during or after the tenn of thIs ro, use, copy, publish,

summi;rl, or \'ove Frm any COnfldential information, except, dunng the term of tiils 10, to the extent
riecessai¡ to carr theIr respeIve duties and responsibilties ul1der thIs 10.

No delay or omissIon by elther Part hereto in exercising any right, power or privilege hereunder shall Impair such rigHt, pOWer or privilege, nor shall any sIngle or partal exercise of any such right, power or privilege preude any ftirter exercise thereof or the exercise of any other rlgllt, power or plivilege.
This 10 contains the ent;re understndIng of the Partes wIth repect to the terms and condllions of Advertiser's

placement of the abOve reference advertsement with eiooky, and supersedes all prior agreements,

negtltià!;Qn$ and understandIngs releitlng to Advertiser's placement of the above referenced advertsement with BrODSky, IncludIng speçlflcally, any oral or writtn agreements between Advertser and BIOOky or Its affllçites

and/or subsidiaries. ThIs 10 c~nnot be amended Or modifed except by ¡; writtn Instrument sIgned by Advertiser
and an l:uttor1;:i¡Ò signatory of Bloosky.

ThIs agrement IS non-exclusive for both Parties ;;nd either ?çirt m(;y enter sImilar agreements wIth other thlrçl

partes.
t.J
. III 'iL' I

:: sUl;hl)l"i~ed signatures
in winess whereof, the PartIes have caused thIs lO to be duly executèd as of the óçite set forth above.
today's date. l/.fil o~
;: bloosky Interacthi

SIgnature ;:

Signature ;,

blOO.!ky lriteraç:jiie ;: bloosky.(om

f'f \1 lok Wi 1/ If

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 16 of 18

SETTLE,MENT AND RRLEASE AGRE.EMENT
i. Piirtlell; flectivé J)l1te. This Settlement and Rcle3.~e Agreement ("Agreement") is entered into by and

between 13loosky Intci'active, LLC, a Nevada limited liability company C'Bloosky"), and Pacific
WebWni-ks, Inc., íl Nevada corpol'tion ("Pacinc"), This Agreement is effective Qn the d(.te last signed by the ptll'tics ("Effective Date").

.2. Natul'e or Agreement. Bloosky is engaged in the biisines$ of providing online advertising and marl~etjngrelated services ¡'iid pl'ducl:s. Pacific is engaged in the business of flaIling pI'oducts directly to coiiSlnners.

On 01' about August 2007, the parties, either directly or through their respective a.fliatès and/oJ'
pl'edecessor!\, entered into that celtain Mastei' Advcrtising Agreement (which is incorporated herein by i'cfercnçe), under which Bkiosky agreed to provide certain online advertising and marketing-related
sel'vices mid/oi' t1rochicts to Pacific (the "Advertising Agrcement"). As of November 2009, Pacific owed
13loosky approximately $180.000 fOl' products and/or services provided by Bloosky purSUant to the terms of

the Atlveii';sing Agreement atid other insertion orders. agl'éement~ and/or underståiidings between the
parlieR directly and expres!dy related to the Advertising Agi'eement entered into by and between 13loòsky

and Pnciiïc ("Relatcd Agreements"),
3. Paytient. 111 consideration of the compromise of their respective claims ltiid contentions. and the mutual

prorii!'es. rcpreSéiitations. and wal'l'nties contained in this Agreement, Pacific hcreby agrees to pay to ßloosky by wirc tl'lnsfei', on 01' bcfore November i 9,2009 at 3:00 p.I1, PST. the sum of ON8 HUNDR8D AND R1011TY THOUSAND DOJ.LARS ($180.000),
4, B1Clsky Rele.iisc. Bloosky tiw and fòrever releases and discharges Pacific /ì'om any and all claims which

directly ¡irises lrom P¡icific's failure to pay ¡111iounts owed as ofthe Effective Date directly arising under the

tel'llS of the Advcrtising Agreement and the Related Agreements entered into hy and between Bloosky and
PHci lic, .

5. Pacific RcleM¡é, Pacific. on beh¡ilf of itself micl its respective parent. $ubsidiaf'es, affliates, successors,
aiid fl~~igl1s. now and forever releases and discharges Bloosky and its respective parent, subsidial'ies, Flm !iates. siiecessoi's. assIgns, principals, offcers, directors, shareholder's, partners, agènts. employees,
~H!:nl'e'ys, and contractors jì'oin any and all claims, liabilítÎè$, damages. and causes of acti'on of any nature which e1irectly flrises fi'om the Advertising Agreement mic1 the Related Agreements entered into by and between BloClsky and Pacifc. M()eover, Pacific expre$sly agrees that there are no amounts owed to

IJaclfic as or the Effectivc Date arising under the terms of the AdVertising Agreemcnt and the Related
Ag.reetteni:s entci'ed into by and between Bloosky and Pacific.
6, fiutili'C Claims. The preceding relcases prQvìded Paragraphs 4 and 5 above extends to and includes any

~nd all clriinis, liabilities. injuries, damages. and c¡i.uses of action èither party does not presently anticipate,
know. 01' suspect to exist, but that l1ay develop, accnie. or be discovered in the future directly related to

micl/oi' iwi~il1g oiit of the Advel1:ising Agi'eenienl or the Related Agi'eements, BÙTH l ARTIES

KNOWINGLY, VOI.,UNTARILY, AND EXPRESSI.;Y WAIVES ALL RIGHTS UNDER CALIFORNIA CIVil.. COOp. SECTION 1542 (ANI) ANY OTHER. SIMILAR FEDERAL OR
.sTATr; STATUTES IN ANY OTHER .JURISDICTION), WHICH PRuVIOES:
A genom' l'e1e¡¡Se docs nM extend to clainis which the creditor doe$ not know or suspect

to exist in his fà.voi' at the time. of executing the release, which if ki10wn by him must
htivc l1ütcrially a ffected his settlement with the debtor, '

noth piirfies represent and warrant that it has considered the possibility that claims. liAbilities. injuries, dal1tiges, andcl1l1ses of action that it does not presently know or suspect to exist in its favor may develop, ¡lcenIC, (.)1 be discovered in the fll!:IJ'e, and that Pücific voluntarily assumes that risk as part of the
cOl1sidenition for this Agreement.

7. Contingency or Relea:c. Thc I'elease and provisions contaÎned in this Agreement are expressly
conditioned upon the following: (a) Pacific must pày Bloosky the sum of ONB HUNDRED EIGHTY THOUSAND DOLLAR.S ($ i 80,000) pursuant to Paragr~lpli 3 above by wire transfei' $0 that the money is received by nloo:iky oli or before November 19.2009 at 3:00 p.m. PST; (b) both parties to this Agreement liU~1 execute and deliver (11 executed copy of this Agreement by fàcsil1ife 01' other electronic transmissÌ(l1i

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 17 of 18

to the otliet part.y on or heforo Noveinbei' 19,2009 at 3:00 p.iii, PST; and (c) both paitics to this Agreement must hiive all l'eaui.~ite power and authority to execute, deliver l1nd perform its obligations under this
Âgreeiieiil' If an)' of the preceding three conditions do Ilot oecui" such actioii or noii.action shall be

consideted n inatci'íal breach of this Agteeinent aile! this Agreement anò all provisions contained heteiii

ghall be void. and thc piuties shall be retunied to their original i'espective legal posltiQl1s as if this I\gf'ecllciit wns IlCver contemplated or cntered into.
8. Alt().l1cys' Fees, The paities each waive the risht to reCOVCr any attorneys' fees, costs of suit. or other

cxpeil.cs incurred in connection with any claims 01' liabilìtieR directly arising out of the AdVertising
Agreemcnt M the Related Agreements. If any legnl action is commenced to interpret, enfoi'ce, or recover di1l1ages foi' the bi'eólch of atiy term of this Agreeinent the prevailing palty shall be entitled to reCOVér I'Cl:oiuible at.torneys' fees incum~d in connection with t!int aetiQll, in addition to COstfl of suit.
9. RCfll'e~~lltati()ns, Each party rcpreseiii:s and wan'ants that: (a) it lias all requisite power and authority to

execute, delivei' and peiform its obligations under this J\greeméllt: (b) the execution. delivery and
pcrl1)lnnnec ofihis Agreement has been duly alithorizcd by such party: and (c) no approval, authorization
01' COnlént of any Couit or any governlnent 01' regulatory authodty or other person or eiitìty is required to be

obtained 01' imide by it in order for it to enter into and pel'fol1n its obligatloiis under this Agreement.

r O. Nn Admission of Lil'hiJty. This Agreement is entered into for the purposes of compromising disputed
claims and iivoiding the expense, inconvenience, and uncertainty of Iitlgatìon. Nothing Contained in this
I\greelleiit. 1101' any consideratioti givcn pui'sumit to it, shiill constitute 01' be deemed to be an admission of

niiy brench, liabìlity, or damages of any paiiy.
r i. Iiidciinificalion. In additon to the indemnificathm provided in the Advertising Agreement and the

Related Agi'ceinent.~, both paities wifl, at their cxpense, Îndermii(y, defend, and hold harmless the other

piirly and their l'especf:ve parctit, subsidiaries, affjiates~ oftcers. directot$, members. shareholders.
employecs, coiitractoi's, i'et.resentatives, agents, successors and assigns from and aga.inst iiny and all losses,

liabifif'es, damages. and claims, and all costs and expenses relating to such losses, liabilities, dari1ages, and claims by a third party (including, without limitation, costs and/Qr expenses of investigation, litigation or
otlici' dispute rC¡¡Ollition proceedings. settlement, judgment and interest and reasonable attol1eys' fees and
r¡i11Jlegal~' reel' Iwhcthei' 01' not suit is instituted and. if iostìMecl. at the tl'iaJ or appeJlntc COurt levels, in a

probate, admiiiistrntive, bankruptcy or Mher proceeding, or other'Wise)) directly arising out of or relating to a matcrial brcoch olthiii Agreement, the Advcrtising Agreement, and/or the Relatcd Agreemetit'5.
12. l!iitii"e Agi'eenicl't. This Agreement contains the entire understanding between the parties concerning the

i;ettlement of this dislJute, Any anò all pl'or negotiations that are not contoined in this Agreement are
supei'sectcd and .we of

no force Qr' effect. Bach piirty representfl and warrnts that no promise or inducement

tQ enter into this settlement: hns been madc to him or hcr that is not set forth in this Agreemcnt.
1:3. l"1I1'thcr f)ocllI11ciits. Each party coveniints nnd agrees to execut~ such furthet documcllts and perform

i;udi further tict~ as may be reii$onabJe and necessary to effectuate the purposes oftbis Agreement.

14. Controllng Law~ Venue; Severabilty; Construction. This Agrecment shall be interpreted in accordance
with the laws of the Stilte of Ciilif(lInia, Aiiy litigation shall bc brQught in a court of coinpetcnt jurisdiction III the Couiity of Orange. California, or in the U.S. District COi/It Ix-r the Ccntral District of Calitornio (Soutliern Division), and the parties hereby expressly consent to personal jurisdiction and venue in such
1'(Ji'unis, Where thc context requires, the llnsculine, fenllnÎlle, and neuter genders Rhal! be construed to include cach other., ilS shall the singular and the pliiral and the past, present. and futurc tenses, If any j1lOvisioli ofthis Agreement' is detcm1ined to be iiivalid or unenforceable, the reinaindei' slinll be construed
and cnfQrced 1'(1 as ('0 best cff~ctu¡¡te the intention ottbe parties fit the time this Agreeineiit was entered into,

This Agl'eeim~iit \VHS drafted Jointly by 01' on behalf of the pinties, anò shall not be interpreted against any party ()fl the ¡'msis t hat the party QI' the party's attorney dniftcd any of iL'i provisions.
15. Modification. This Agreement may not be omlly superseded, modified, or amended. No waiver,

modification, 01' ¡imcndmellt shnll be Yfllid unics~ Rigned by all parties.
16. Colintl1l'piirtsi F.\csimile. This Agreement may be executed and delivered in two or 110re counterparts,

alicl/ol' dclivei'ecl by r:acsiniile or other electronic transmission, each of which shall be deemed an original
niid all of which together shall he deem cd to constitute one and the

same (lgreement. ¡his I\greemollt must

Case 2:09-cv-01815-TSZ Document 63-1

Filed 10/25/10 Page 18 of 18

he executed by ii hmidwritteri signature and not by an electronic signature. 110twith!itanding that it may be elcctl'ol1iColly thlnsl1itted or delivered, Where a paity has delivered this Agreement by facsimile or other
electronic lnmsinlssioii, it shall forthwith deliver an originiilly executed eopy of party, hilt Oie failure to do so shall not affect the validity or etiforccability of

this Agreement to the other this Agreement.

AGREltD ANI) ACCßPTEI):
I~LOOSJ(Y INTH.ACTJVF.

BY:_.l_ . .
Nninc;_. .. M~..R- CCC\S
(pl'nted)

¿AJ, ¿Je, //
Title:

Tille:__..Ç-_ ~ ..

t~l)
//¡jtl/qt

D¡\--e.:..i -_.,.î.... (; 'l:.. _ i Il ( ,

Date: