ATOMSHOCKWAVE AFFILIATE AGREEMENT (VERSION JULY 2005) 1. ACCEPTANCE OF TERMS This Affiliate Program Agreement (the "Agreement") is a legal agreement and contains all of the terms and conditions between AtomShockwave, Inc. ("AtomShockwave") and you, together with any company or other business entity you are representing, if any, (collectively, the "Affiliate") who is participating in the AtomShockwave Affiliate Program (the "Program"). BY REGISTERING FOR THIS PROGRAM AFFILIATE AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement do not register for the Program. IMPORTANT -- READ CAREFULLY BEFORE USING ATOMSHOCKWAVE MATERIALS: This Affiliate Program Agreement includes a license for links, marketing and related promotional materials, and other AtomShockwave trademarks, service marks, trade names, and/or copyrighted material available via the Program and is a legal agreement between you and AtomShockwave and its suppliers and licensors. By signing this Agreement, or by clicking on the "Accept" or “Agree” buttons, uploading, copying or otherwise using the AtomShockwave materials, you agree to be bound by the terms of these Standard Terms. IF YOU DO NOT AGREE TO THE STANDARD TERMS, CLICK ON THE "Close" BUTTON, AND YOU MAY NOT UNDER ANY CIRCUMSTANCES USE THE ASW MATERIALS. YOU AGREE THAT YOUR USE OF THE ATOMSHOCKWAVE MATERIALS IN ANY MANNER, INDICATES AND ACKNOWLEDGES THAT YOU HAVE READ THESE STANDARD TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY IT. By accepting the terms of this Agreement, Affiliate agrees that AtomShockwave may change the terms of this Agreement in its sole discretion provided that AtomShockwave provides Affiliate with notice of any such change. If Affiliate does not agree to the changes proposed by AtomShockwave, or to any terms in this Agreement, Affiliate's sole and exclusive remedy is to cancel Affiliate's participation in the Program. Notwithstanding the foregoing, AtomShockwave reserves the right to terminate, cancel, suspend or refuse access to the Program to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Program shall be subject to this Agreement. 2. SUBSCRIBER REFERRAL, GAME PURCHASE REFERRAL, AND REGISTRATION 1. Approval. Affiliate’s participation in the Program is subject to AtomShockwave’s prior approval. Affiliate must first sign-up with LinkShare and agree to: LinkShare’s standard Affiliate terms at: http://www.linkshare.com/affiliates/aff_tc.shtml LinkShare Network Guidelines at: http://www.linkshare.com/affiliates/aff_guidelines.shtml AtomShockwave reserves the right to not approve certain Affiliates at AtomShockwave’s sole discretion. Affiliate’s participation in AtomShockwave’s Affiliate Program is expressly conditioned upon Affiliate’s unqualified as sent to this Agreement and to LinkShare’s affiliate agreement at http://www.linkshare.com/affiliates/aff_tc.shtml. You are expressly prohibited from using AtomShockwave Links or other promotional materials in a manner that has not been approved in advance by AtomShockwave at its sole discretion. 2. Linking to AtomShockwave. Affiliate may be eligible for certain commissions for every Subscriber (as defined in Section 5.1 below) and/or game purchase that Affiliate refers to AtomShockwave. To be eligible for such commissions, each referral must originate from a specially-coded AtomShockwave link. Such links may only be in the form of text, a button, a banner or any other format provided by AtomShockwave. Affiliate shall not modify or alter the AtomShockwave link without prior written consent of AtomShockwave. The HTML for such link will also include a special promotion identifier that enables the tracking and reporting of all purchasers or Subscribers that originate from Affiliate. Affiliate can obtain the AtomShockwave links from LinkShare. Affiliate is responsible for integrating the AtomShockwave link into Affiliate's website properly and for providing the AtomShockwave links to purchasers and Subscribers in the proper format, which includes ensuring that, as between the AtomShockwave links and the AtomShockwave website, each of the AtomShockwave links properly utilizes the aforementioned special identifier link formats. ATOMSHOCKWAVE SHALL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO AFFILIATE'S FAILURE TO PROPERLY INTEGRATE THE ATOMSHOCKWAVE LINK, INCLUDING TO THE EXTENT THAT SUCH FAILURE MAY RESULT IN ANY REDUCTIONS OF COMMISSION FEES (AS DEFINED BELOW) THAT WOULD OTHERWISE BE PAYABLE TO AFFILIATE UNDER THIS AGREEMENT. 3. Tracking and Reporting. For the purposes of this Agreement, tracking and reporting will be performed through the use of LinkShare’s services and software and Affiliates are required to agree to: LinkShare’s Affiliate Membership Agreement at http://www.linkshare.com/affiliates/aff_tc.shtml LinkShare Network Guidelines at: http://www.linkshare.com/affiliates/aff_guidelines.shtml. Affiliate agrees and acknowledges that the statistics and reports provided by LinkShare are the official, definitive and final measurements of the number of Subscribers and purchasers that have originated from the AtomShockwave link as well as the fees payable to Affiliate from AtomShockwave pursuant to the terms of this Agreement. 3. LICENSE RIGHTS 1. License Grant of AtomShockwave Link. Subject to all the terms and conditions of this Agreement, AtomShockwave hereby grants to Affiliate a limited, non-exclusive, non-transferable, revocable license to use and publicly display the AtomShockwave links, solely for their receipt, access, use and viewing in the manner described herein. AtomShockwave retains all rights, title, and interest in and to all of the copyrights, patent rights, trademark rights and other proprietary rights to the AtomShockwave links pursuant to this Agreement. 2. AtomShockwave Link License Restrictions. In addition to any other restrictions herein on the use of the AtomShockwave link, Affiliate agrees to the following: (i) Affiliate shall not access, transmit, display or otherwise make available (or allow end users or any other third party to transmit or make available) AtomShockwave links to any third party, except as explicitly provided herein; (ii) Affiliate shall not alter, delete or modify any attributions included within the AtomShockwave links; (iii) AtomShockwave shall have the right, in its reasonable discretion and upon notice to Affiliate, to require Affiliate to immediately cease any and all use of any particular AtomShockwave link: and (iv) Affiliate may not impose any separate charges or fees for use or access to the AtomShockwave links. 3. License Grant of AtomShockwave Marks. Subject to all the terms and conditions of this Agreement, AtomShockwave hereby grants Affiliate a limited, nonexclusive, non-transferable, revocable license to use the AtomShockwave trademarks, logos, and copyrighted material ("AtomShockwave Marks") solely on the Affiliate's website and solely in connection with this Agreement. Affiliate hereby acknowledges and agrees that (i) the AtomShockwave Marks are owned solely and exclusively by AtomShockwave or its subsidiaries, (ii) except as set forth herein, Affiliate has no right, title or interest in or to the AtomShockwave Marks; and (iii) all use of the AtomShockwave Marks by Affiliate shall inure to the benefit of AtomShockwave and its subsidiaries. Affiliate agrees that it shall not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of AtomShockwave or of any AtomShockwave Mark. 4. Use and Display of AtomShockwave Marks. Affiliate acknowledges and agrees that the presentation and image of AtomShockwave Marks should be uniform and consistent with respect to all services, activities and products associated with the AtomShockwave Marks. Accordingly, Affiliate agrees to use the AtomShockwave Marks solely in the manner in which AtomShockwave shall specify from time to time in AtomShockwave's sole discretion. Affiliate will not create a unitary composite mark involving any ASW trademark without the prior, written approval of AtomShockwave. 5. Marketing Practices. With respect to soliciting Subscribers and marketing the AtomShockwave Services, all advertising and promotional materials are subject to the terms of this Agreement. Affiliate further agrees: (i) to be solely responsible for all expenses and fees incurred in connection with the participation in the Program; (ii) use best efforts to successfully market, advertise and sell AtomShockwave Services during the term of this Agreement; (iii) not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to AtomShockwave or its products or services; (iv) not make any representations, warranties, or guarantees on behalf of AtomShockwave, or otherwise concerning AtomShockwave Services that are inconsistent with or in addition to any such representations, warranties, or guarantees made by AtomShockwave; and (v) use the then-current name as used by AtomShockwave (but will not represent or imply that Affiliate is an employee, part of, or affiliated with AtomShockwave). 4. AFFILIATE REPRESENTATIONS AND WARRANTIES Affiliate represents and warrants that: 1. Affiliate is 18 years of age or older and has the full and legal power and authority to enter into this Agreement, and/or to perform its obligations hereunder. 2. By entering into this Agreement, Affiliate does not violate any other agreement by which Affiliate is bound. 3. With respect to any performance hereunder, Affiliate shall comply with good business practices and all applicable laws, regulations and rules of any government body or agency or other competent authority. 4. Affiliate will comply with the applicable then-current Terms of Service and Privacy Policy of the AtomShockwave Services. 5. Any website created or built by Affiliate shall not include (i) child pornography or obscene content, (ii) illegal content, or (iv) any other inappropriate materials. 5. PAYMENT TERMS 1. Payment Terms. Subject to the terms and conditions of this Agreement and pursuant to the then-current Fee Schedule set forth on the AtomShockwave or LinkShare website (the "Fee Schedule") which may be updated from time to time at AtomShockwave’s sole discretion, Affiliate will be paid a commission fee ("Commission Fee") on a monthly basis by AtomShockwave for each person who purchases a game and/or for each person who registers for an AtomShockwave subscription based service and agrees to the AtomShockwave Terms of Service (the "Subscriber"). For Affiliate to earn a Commission Fee for someone who purchases a game, the purchaser must have (i) followed the AtomShockwave link provided by Affiliate; (ii) AtomShockwave must have received valid payment for such purchase; and (iii) the purchaser must not return the game or otherwise obtain a refund or chargeback for such purchase within 30 days. For Affiliate to earn a Commission Fee for a Subscriber, the Subscriber must have (i) followed the AtomShockwave link that is provided by Affiliate or is otherwise located on the Affiliate's website to the AtomShockwave website; and (ii) the Subscriber must have successfully signed up for AtomShockwave Subscription Service(s The exact Commission Fees for different types of Subscribers will be set forth in the Fee Schedule which may be updated from time to time by AtomShockwave at its sole discretion. . Other than Commission Fees, Affiliate shall have no claims to any additional compensation, commissions or business derived by or through its participation in the Program. Notwithstanding the above, for each month that Affiliate does not earn at least Fifty Dollars ($50.00) in Commission Fees, payment shall not be issued to Affiliate for that month; but shall be deferred until the cumulative amount is at least Fifty Dollars ($50.00). AtomShockwave shall not be liable with respect to any Commission Fees not received by Affiliate as a result of Affiliate's failure to notify AtomShockwave or LinkShare of a change in Affiliate's principle place of address. All Payments shall be in U.S. Dollars. In the event that AtomShockwave is unable to calculate Commission Fees or is delayed in its calculation of Commission Fees due to any computer error or technical difficulty (including, without limitation, viruses, bugs or any other operational defects), AtomShockwave’s sole obligation will be to pay Affiliate 75% of the amount Affiliate received from AtomShockwave in the previous month. In the event that Affiliate did not receive a Commission Fee from AtomShockwave in the previous month, the maximum Commission Fee shall be one hundred dollars ($100.00). 2. Taxes. Affiliate shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority based on Affiliate's revenue or income under this Agreement or any Client Agreement. 3. Fraud and Fraudulent Activity. AtomShockwave shall have no obligation to pay Commission Fees to Affiliate for Subscribers if it is determined in good faith by AtomShockwave that there has been fraudulent activity on the Affiliate's website. For exemplary purposes only without limitations, if an unreasonable number of Subscribers have originated from the AtomShockwave links on Affiliate's website during any period of time, then AtomShockwave shall have the right to examine Affiliate's records to the extent necessary to determine whether any fraudulent activity has occurred involving the AtomShockwave links on Affiliate's website and/or Affiliate's account at the Reporting Site. Furthermore, AtomShockwave shall have no obligation to pay commission fees to Affiliate in the event of Subscriber obtaining a charge back or refund or if AtomShockwave determines in good faith that Subscribers created their accounts solely for the purpose of aiding and abetting Affiliate to increase commission amounts without the intent of being a long term AtomShockwave Subscriber. 6. CONFIDENTIAL INFORMATION Each party agrees that it may have access to confidential or proprietary, technical or business information of the other party and/or its suppliers (collectively, "Confidential Information"). Each party will maintain the strict confidentiality of the Confidential Information of the other party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither party will use the Confidential Information for any purpose except those contemplated by this Agreement. 7. NO DISPARAGEMENT Affiliate shall not disparage AtomShockwave, or any AtomShockwave Mark and/or AtomShockwave products or services thereof, or place any disparaging content on the Affiliate's or Clients website(s). 8. NON-COMPETITION AND MARKETING RESTRICTIONS Affiliate acknowledges and agrees that it shall not attempt to switch, divert, or convert a Subscriber or purchaser from the AtomShockwave Services to any product or service that is competitive to AtomShockwave's products or services. Affiliate shall not bid for keywords on any Internet search site, including but not limited to Yahoo and Google, unless Affiliate obtains written permission from AtomShockwave and cooperates with AtomShockwave to ensure that the parties are not harming each other by over bidding on relevant key words. Affiliate warrants that it shall comply with CAN-SPAM and other email marketing laws at all times and Affiliate shall not engage in sending unsolicited emails that make reference to any AtomShockwave games, products, services, or brands. Affiliate shall not engage in permission based email campaigns that are intended to advertise AtomShockwave games, products, services, or brands without first obtaining AtomShockwave’s written permission to engage in a specific permission based email marketing campaign. 9. MODIFICATION AtomShockwave reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Program (or any part thereof) with or without notice. Affiliate agrees that AtomShockwave shall not be liable to Affiliate or to any third party for any modification, suspension or discontinuance of the Program. In the event that Affiliate does not agree with any such modification, Affiliate shall terminate its participation in the Program, which shall be Affiliate's sole and exclusive remedy. 10. TERMINATION 1. Term and Termination. Unless terminated earlier as provided herein, this Agreement shall remain in full force unless otherwise terminated by AtomShockwave. Affiliate may terminate this Agreement at any time by removing the AtomShockwave links from its website. AtomShockwave may terminate this Agreement upon providing five (5) days prior written notice (including email) to Affiliate. 2. Effect of Termination. In the event that this Agreement is terminated for any reason, Affiliate will only be eligible for Commission Fees earned as a result of Subscribers who were acquired up to the date of termination or expiration. Upon termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate and Affiliate will immediately cease use of, and remove from the Affiliate's website, all AtomShockwave marks, AtomShockwave Materials, and AtomShockwave Links. Termination or expiration of this Agreement shall have no effect with respect to any rights or obligations existing under a Client Agreement. Except to the extent expressly provided to the contrary in this Agreement, any rights to Commission Fees earned, any right of action for breach of the Agreement prior to termination, and the following provisions shall survive the termination of this Agreement: Sections 4,6,7,8,11,13,14. Furthermore, upon termination or expiration of this Agreement and upon AtomShockwave's request, Affiliate shall either return or destroy any Materials or other Confidential Information provided to Affiliate by AtomShockwave. 11. INDEMNIFICATION Affiliate shall defend and indemnify at its expense, and hold AtomShockwave and each of its affiliates, directors, officers, agents, employees and sublicensees harmless from losses, damages, liabilities, costs and expenses, including without limitation, any proceeding, investigation or claim, to the fullest extent permitted by law arising out of or in connection with: (a) Affiliate's performance under this Agreement or any Client Agreement; (b) an assertion that the information, content or other materials or services provided or made available by Affiliate infringe any copyright, patent, trademark or other property right of any third party; (c) any breach by Affiliate of its obligations, representations and warranties under this Agreement; (d) any claim related to the content on Affiliate's website or content provided by Affiliate to a Client for a Client Site or (e) any claim related to Affiliate’s marketing activities, including but not limited to claims arising from Affiliate’s email marketing activities. AtomShockwave shall notify Affiliate promptly in writing of any claim or proceeding involving AtomShockwave. 12. WARRANTY DISCLAIMER EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO ANY INFORMATION, CONTENT OR OTHER MATERIALS PROVIDED OR MADE AVAILABLE BY IT HEREUNDER AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, NEITHER PARTY MAKES ANY REPRESENTATION THAT THE OPERATION OF SUCH PARTY'S WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF SUCH INTERRUPTIONS OR ERRORS. ATOMSHOCKWAVE MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ATOMSHOCKWAVE SERVICES OR THE SOFTWARE OR UNDERLYING TECHNOLOGY. 13. LIMITATION OF LIABILITY ATOMSHOCKWAVE SHALL NOT BE LIABLE OR OBLIGATED UNDER ANY SECTION OF THIS AGREEMENT, OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES IN CONNECTION WITH THIS AGREEMENT, EVEN IF ATOMSHOCKWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ATOMSHOCKWAVE BE LIABLE TO AFFILIATE OR ANY THIRD PARTY IN AN AGGREGATE AMOUNT GREATER THAN THE AMOUNT PAID TO AFFILIATE BY ATOMSHOCKWAVE HEREUNDER. 14. ARBITRATION Affiliate agrees that any dispute or claim arising out of or related to the website design service or this Agreement, or the interpretation, making, performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco County, California under the American Arbitration Association Rules by one arbitrator appointed in accordance with said Rules. The proceedings shall be conducted and all evidence shall be offered in the English language. Affiliate agrees that any claim against AtomShockwave must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be barred forever. This Agreement shall be governed by California law. 15. INDEPENDENT CONTRACTOR The parties are independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party has the power or authority as agent, employee or any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. Affiliate is solely responsible for all of its employees or agents and its labor costs and expenses arising therewith. AtomShockwave will not furnish or otherwise reimburse Affiliate for any office space, office or business equipment, clerical support, telephone, travel, or any other expense which Affiliate may incur as a result its performance under this Agreement. 16. GENERAL This Agreement may not be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, AtomShockwave may assign this Agreement to any acquirer of all or of substantially all of its equity securities, assets or business related to the subject matter of this Agreement. Any attempted assignment in violation of this Agreement shall be null and void and without effect. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement and may be changed only by a writing signed by both parties. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures. The services hereunder are offered by AtomShockwave Technologies Inc., located at 114 Sansome Street, 10th Floor, San Francisco, CA 94104