This Traffic Partner agreement (the “Agreement”) is entered into by and between Jarmacy Enterprises LLC, a Michigan company (“GameFools”) and the individual or entity named in the online application to participate in GameFools’ Traffic Partner program submitted by the prospective partner (“Partner”).

Whereas, GameFools operates a Pay-Per-Download service in which online advertisers list their downloadable games and bid for placement throughout the GameFools distribution network. Partner operates a website, search directory, search engine or other approved service (“Partner Service”) as designated in the online application. Partner desires to include GameFools' paid advertiser game listings within the Partner Service, and GameFools desires to enable such integration under the terms and conditions herein. Therefore, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows.

GameFools will only accept and credit Partner for downloads originating from IP addresses from its accepted countries, the determination of which shall be based solely on GameFools’ proprietary tracking and validation technology. Only downloads from the following countries will be accepted: Australia; Anguilla; Austria; Belgium; Canada; Denmark; Finland; France; Germany; Greece; Hong Kong; Iceland; Ireland; Italy; Japan; Luxembourg; Mexico; Netherlands; New Zealand; Norway; Portugal; South Africa; Spain; Sweden; Switzerland; Taiwan; United Kingdom; United States of America; Virgin Islands (U.S.); and, Virgin Islands (British). GameFools retains the right to change its list of accepted countries at any time by providing Partner with three (3) days prior written notice of such change.

Clicks or downloads generated by hit bots, robots, spiders, scrapers, multiple clicking scripts, zeroframes, iframes, IRC cheats, or other software programs which may now exist or which may be developed in the future, or any other mechanical or manual means of artificially generating clicks or downloads, will not be counted. Clicks and downloads that are incentivized in any way (whether for monetary compensation or other form of direct or indirect compensation), created as a result of a so-called “cheat group,” or generated by any form of SPAM, including unsolicited email, newsgroups, ICQ, unauthorized adjustment of browsers will not be counted. Such determination will be based solely on GameFools' proprietary tracking and validation technology. Any attempts to generate fraudulent clicks or downloads as outlined above will result in the termination of the Agreement without payment.

GameFools shall have the absolute right to approve, conditionally approve or disapprove the proposed Partner, at its discretion, or to terminate Partner at any time subsequent to approval. 

GameFools will provide Partner with access to its game advertising content and shall provide commercially reasonable assistance to Partner in completing the implementation of the GameFools content. GameFools retains the right to modify such content, as well as the underlying database and algorithm, at its absolute discretion without providing notice to Partner.

GameFools shall pay Partner a total of fifty percent (50%) of the Gross Per-Download Revenue on a monthly basis. The Partner revenue shall be paid within ten (10) days of the close of the month in which it was earned under the terms of this Agreement. If the Partner's account balance is less than $25 at the close of a month, it will be carried over and paid in a future month once the balance has reached $25 or more. If GameFools terminates this Agreement, final payment may be delayed for as long as thirty (30) additional days in cases in which the number of downloads has not been validated to the satisfaction of GameFools.

This Agreement shall commence upon signup and acceptance of this Agreement, and shall continue in full force and effect until terminated by either party, at each party's exclusive discretion. No notice is required in order for either party to terminate this Agreement.

Upon termination of this Agreement, the Partner shall remove all GameFools content from the Partner Service, and the license granted hereunder by GameFools shall cease, except as the parties may agree in writing.

Nothing contained in this Agreement is intended to create an exclusive relationship between the parties that would limit the ability of either party to enter into similar agreements with third parties.

During the term of this Agreement, and subject to the terms and conditions contained in this Agreement, GameFools hereby grants to Partner a royalty free, non-transferable, non-exclusive license, to (i) use, transmit, integrate, display and distribute the GameFools paid advertiser content via the Partner Service, to Internet end-users on the Partner Service, and (ii) subject to the terms hereof. The rights granted by GameFools hereunder, including without limitation the license regarding the content, are limited to the display and distribution as part of the Partner Service.

During the term of this Agreement, each party hereby grants to the other party a non-exclusive, non-sub-licensable, non-transferable, royalty-free right and license to use, display and reproduce such party's name, logo, trademarks and service marks (the “Trademarks”), solely for the purposes of displaying and maintaining the GameFools Traffic Partner program and Partner 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. No party will take any action that would undermine, conflict with, or be contrary to the intellectual property rights and interest of the other party, including, without limitation, any use of, or attempt to register, any trademark, service mark or trade name substantially similar to any other party's Trademark.

GameFools shall retain all right, title and interest in, to and under the content, algorithm and related technology, and all traffic data collected under this Agreement. GameFools will retain all right, title and interest in, to and under the intellectual property included in the content (including, without limitation, ownership of all copyrights and other intellectual property rights therein). Other than as expressly set forth herein, Partner and its agents, officers, directors, employees, related parties, affiliates and representatives will not (i) sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way the content except as may be expressly permitted herein; or (ii) attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of GameFools' content, algorithms, databases, computer programs, ontology, directory structure, patents, copyrights, or other proprietary rights or GameFools' methodology related to the creation and compilation of GameFools URLs from the content or any other information furnished to Partner by GameFools, or permit any third party to attempt any of the foregoing.

GameFools shall provide Partner with a username and password that allows Partner to access a secure, web-based online reporting interface that details the number of downloads and the corresponding gross revenue generated by the Partner through the date of the report. The reports are subject to revision at any time prior to the issuance of payment to the Partner, based on GameFools' proprietary month-end validation processes. GameFools shall determine, at its exclusive discretion, the number of downloads generated by the Partner, and the corresponding amount of revenue.

GameFools has the exclusive discretion to make changes to this agreement by revising the terms contained herein. GameFools is not required to provide Partner with notice of any changes made to this agreement. Partner should regularly review this agreement as compliance with the terms hereof is entirely the responsibility of Partner.

All payments shall be made in U.S. dollars. GameFools shall pay, and indemnify and hold Partner harmless against, all sales, use, excise, value-added or similar tax, fee or duty not based on Partner's net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, levied on any of the activities conducted or payments made by GameFools hereunder.

Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out its provisions; (b) it is duly authorized to execute and deliver this Agreement and to perform its obligations; and, (c) this Agreement is valid and legally binding upon it and the execution, delivery and performance of this Agreement by such party does not conflict with any other agreement, instrument or understanding to which it is a party or by which it may be bound nor would violate any law or regulation of any court, governmental body or agency having jurisdiction over it. Partner warrants that it will use commercially reasonable efforts to ensure that the Partner Service, and the content contained thereon, will not be, or contain any material that is, obscene, pornographic, profane, fraudulent, libelous or defamatory, or infringing of any intellectual property rights, privacy rights or other rights of any third party.

GameFools and Partner each disclaim all warranties or conditions, express, implied, or statutory, including but not limited to, implied warranties or conditions of merchantability, quality or fitness for a particular use, noninfringement or that the GameFools advertising content will be uninterrupted or error-free. Neither party shall be responsible for any content provided by third parties (including advertisers), or for any third party sites that can be linked to or from such party’s web site. In addition, GameFools disclaims all liability of all kind of GameFools’ advertisers, licensors and other suppliers. Without limiting the generality of the foregoing, neither party makes any warranties with respect to its services.

In no event shall either party be liable to the other party for (i) indirect, incidental, consequential, special or exemplary damages arising from such party’s performance or non-performance under any provision of this agreement or the provision of such party’s services including such damages incurred by third parties, such as, but not limited to, loss of revenue or anticipated profits or lost business, or (ii) any amount in excess of the amount payable by GameFools to Partner during the first year of the term, notwithstanding anything in this agreement to the contrary, this section will not limit either party’s liability to the other for willful and malicious misconduct, breach of confidentiality obligation, or fulfillment of any indemnification obligations hereunder.

The parties hereby agrees to indemnify, defend protect and hold each other, and their respective officers, directors, shareholders, affiliated entities and persons, employees, agents, representatives and attorneys harmless from and against any and all claims, causes of actions, demands, judicial and administrative proceedings, liabilities, forfeitures, errors, damages, costs and expenses (including without limitation, reasonable attorneys' fees and related costs and expenses, whether or not suit is filed or proceedings instituted thereon), directly or indirectly arising in connection with each party's business, this Agreement, or any breach or default in performance by either party of any obligations hereunder or under any obligations to third parties.

The parties shall maintain the terms and conditions of this Agreement confidential. All information furnished to or shared with a party by the other party with regard to this Agreement or a party's business, unless such information is known by the general public, will be kept confidential by a party and shall not be disclosed to any third party except: (i) at the written consent of a party; (ii) to the extent necessary to comply with any law, regulation or valid order of a court or agency of competent jurisdiction; (iii) as a part of a party's normal reporting requirements to its auditors and attorneys; or (iv) to the extent necessary to permit the performance of a party's obligations under this Agreement or to enforce a party's rights under this Agreement.

Neither party shall issue any press release in connection with this Agreement without the other party's prior written consent. The content of such press release or announcement shall be subject to the approval of GameFools, which approval shall be exercised at GameFools' exclusive discretion. Excluding disclosures that may be required by law, neither party shall disclose any other terms of this Agreement to any person or entity without the prior approval of the other party. Notwithstanding the foregoing and subject to any confidentiality obligations imposed upon a party under this Agreement, (i) GameFools shall have the right to notify its advertisers and potential advertisers of the general nature of this transaction, (ii) both parties shall be entitled to provide additional disclosures containing any and all information contained in any previously agreed disclosure or press release, and (iii) both parties shall be entitled to list the other party's name in advertising and other materials. When determining whether a disclosure is “required by law” both parties may rely on their respective legal counsels' advice on such matters.

The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

Neither party may assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld.

Partner cannot create any amendment, change, waiver, or discharge to this Agreement without the written approval of GameFools.

No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.

All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or by facsimile or e-mail. All notices shall be directed to the parties at their respective addresses on file, or to such other address as either party may, from time to time, designate by notice to the other party.

Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.

This Agreement shall be construed and controlled by the laws of the State of Michigan. Any dispute arising in connection with this Agreement, including, without limitation, a breach of this Agreement, shall be governed by the laws of the State of Michigan. The parties agree to submit to the jurisdiction of the state and federal courts located in Grand Rapids.

This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.

Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this Agreement.

If the performance of any part of this Agreement by either party, except for the obligation to pay amounts payable hereunder, is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the reasonable control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

Note: By submitting an online application to participate in GameFools’ Traffic Partner program, and by checking the box at the bottom of the application page confirmation acceptance of this agreement, the prospective Partner hereby agrees to be unconditionally bound by each and every term and condition herein if GameFools approves the prospective Partner’s application to participate in this program, which approval or disapproval is at GameFools’ exclusive discretion.