Affiliate Program Agreement Update 12.04.06 This Affiliate Program Agreement Update (the “Update”) is hereby incorporated into and made a part of the Affiliate Program Agreement (the “Agreement”) made and entered into between Disney Shopping, Inc., a Delaware corporation (“Disney”) and you, the “Applicant”. Capitalized terms used in this Update and not otherwise defined will have the meanings assigned to them in the Agreement. Except as modified by this Update, the Agreement will otherwise remain in full force and effect. IF THE UPDATE OUTLINED BELOW IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THE AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING YOUR RECEIPT OF THIS KEYWORD POLICY WILL CONSTITUTE BINDING ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH HEREIN. (1) KEYWORDS INVOLVING DISNEY TRADEMARK “DISNEY” AND VARIATIONS THEREOF. (i) Affiliate shall not purchase search engine keywords that use any Disney Trademark or certain variations thereof. For purposes of this Agreement, Disney Trademark means any and all trademarks of Disney, The Walt Disney Company, and/or any and all of their parent, related, affiliated and subsidiary companies. Disney Trademarks include, but are not limited to, Disney, Disney Shopping, Mickey Mouse, Lightning Mcqueen, The Disney Store, Disneydirect.Com, Disney Princess, Pixar, Toy Story, Disney Catalog, Mater, Walt Disney's Alice In Wonderland, Disney Store Outlet, Finding Nemo, The Disney Catalog, Disney Mix Stick, Disney Online, Walt Disney's Cinderella, Power Rangers, Power Rangers Mystic Force, Eeyore, Donald Duck, Little Einsteins, Little Einstein, Radiator Springs, Disney Store Outlet, Walt Disney's Snow White And The Seven Dwarfs, Goofy, Disney Dream Desk, Pluto, Disney World, Disneyland, Haunted Mansion, Lilo & Stitch, The Lion King, Minnie Mouse, and Pirates Of The Caribbean. Affiliate shall not purchase or register keywords, AdWords, search terms or other identifying terms that include the Disney Trademarks or certain variations thereof for use in any search engine, portal, sponsored advertising service or other search or referral service. (ii) If Disney determines, in its sole discretion, that Affiliate has purchased or attempted to make any purchase in violation of the above restrictions, then Disney may (without limiting any other remedies available to it) pursue any or all of the following actions: • Withhold all compensation otherwise payable to Affiliate for the month in which Affiliate purchased the prohibited trademarked terms; • Contact the search engine in which Affiliate’s ad was found to ask that these ads be removed immediately and permanently; • Terminate this Agreement as provided in the section titled “Term of the Agreement; Termination”, and remove Affiliate from the Affiliate Program permanently. (iii) Direct linking from a search engine listing/ad that is not prohibited under this Agreement to the Disney website is allowed, however Affiliate must clearly identify itself as an affiliate using a commonly accepted method such as listing “aff” in its ad/listing. Affiliate must also list its own web site URL as the visible URL. Disney reserves the right to prohibit direct linking from such search engine listings/ads for particular search engines from time to time. Affiliate is prohibited from using the term “official site” in its ads or otherwise presenting its site as an official site. (iv) Affiliate shall not use, and shall prohibit all web sites within its control from using, any predatory advertising methods designed to generate traffic from Disney or Disney affiliate internet sites, or any other sites that exclusively promote Disney branded product, for which Company has no contractual rights for the online promotion of any such products or services other than the Disney Product. A predatory advertising method is an advertising method that creates or overlays links or banners on web sites, spawns browser windows, or utilizes any other method to generate traffic from a web site without that web site owner's knowledge, permission, or participation. (2) REFERRAL FEES (i) The following sentence is hereby added at the end of the first paragraph of Section 5 of the Agreement: “We will pay you Referral Fees for all Eligible Products sold in the manner set forth above to Customers in the session resulting directly from the Customer’s click on the Link from your Site to DisneyShopping.com’s Site and for all Eligible Products sold to such Customer on DisneyShopping.com’s Site within ten (10) days thereafter (even if such Customer returns directly to DisneyShopping.com’s Site, and not by clicking a Link from your Site), provided that Customer has not returned to DisneyShopping.com's Site prior to purchasing such Eligible Products by clicking on any Link other than the Link on your Site, including but not limited to Links included in other websites or communications published or distributed by Disney or any party other than you, such as email messages, search engines, Sites of other affiliates, banner advertisements on any Site other than your Site, or any other marketing effort not directly attributable to your Site. DSI will not pay you Referral Fees if Customer returns to DisneyShopping.com's Site by clicking on any other marketing campaign, such as email marketing, search marketing, affiliate marketing, banner advertisements, or any other marketing effort not directly attributable to your Site.” (3) PRODUCT ICONS AND PAGE LINKS (i) The fourth paragraph of Section 2 of the Agreement shall be deleted in its entirety and replaced with the following: “You may ONLY display discounts, coupons and other DisneyShopping.com offers on your Site that are provided to you by us or Manager and expressly approved for use in the Program. You may NOT display DisneyShopping.com discounts, coupons or other offers on your Site that you obtain from any other source and if you display such other discounts, coupons or other offers, we may withhold commissions on orders you refer that use these discounts, coupons or offers, and immediately terminate this Agreement.” AFFILIATE PROGRAM AGREEMENT THIS AGREEMENT and the referred materials contain the complete terms and conditions that apply to an individual or entity's participation in the DisneyShopping.com Affiliate Program (the "Program"). This Agreement is made and entered into between Disney Shopping, Inc., a Delaware corporation ("Disney"), and the applicant (“Applicant”). As used in this Agreement, "we/us/our" means Disney and "you/your" means the Applicant. "Site" means a World Wide Web site. LinkShare Corporation (“LinkShare” or “Manager”) has been retained by us to organize, manage and oversee our Program. As a condition of your membership in the Program, you may be required to enter into separate agreements with certain third parties in connection with this Agreement and the Program including, but not limited to, an agreement with LinkShare. Your failure to enter into or adhere to any such required agreements shall result in immediate termination of this Agreement. 1. ENROLLMENT IN THE PROGRAM To begin the enrollment process, you need to submit a complete Program application ("Application"). Submission of your Application to the Program implies acceptance of the terms set forth in this Agreement. Together with the Manager, we will evaluate your Application in good faith and one of us will notify you of your acceptance or rejection. We or the Manager may reject your Application for any reason whatsoever, including, but not limited to, our determination (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable Sites include, but are not limited to, those that: (a) contain or link to nudity or pornography or promote sexually explicit materials; (b) promote violence; (c) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (d) promote illegal activities; (e) promote tobacco, hard liquor, or gambling; (f) infringe intellectual property rights of ours or any third party, or otherwise violate the rights of any third party; (g) contain in our sole judgment material that is defamatory, fraudulent, or harassing to us or any third party; (h) advocate the adoption or promote the ideology of a specific religious or political viewpoint (as opposed to discussing multiple religious or political viewpoints); (i) promote the use of any pyramid or similar get rich quick schemes; or (j) are non-U.S. based or primarily serve a non-U.S. audience. You represent that none of the aforementioned unsuitable Site characteristics apply to your Site. Once we or the Manager accept your Application, you will be provided with access to our affiliate Site (“Affiliate Gateway”) for use in managing your Program account. If the Manager or we reject your Application, you are welcome to reapply to the Program at any time. 2. PRODUCT ICONS AND PAGE LINKS We or Manager will provide you with access to various graphics (“Icons”) to feature on your Site in connection with the Program. You may change the selection of your featured Icons at any time, without our approval, so long as you only use current approved Icons provided by us or Manager. The nature, position and prominence of these Icons will be your sole responsibility and within your sole discretion provided that you comply with the terms of this Agreement. Notwithstanding the foregoing, Disney may at any time and from time to time, in Disney’s sole discretion, require that you change the nature, position and/or prominence of any Icons on your Site or cease use of Icons on your Site and you shall comply with any such requirements. For each selected Icon, we will provide an electronic link to DisneyShopping.com using an affiliate URL provided by us (a "Link"). It is your sole responsibility to set up and maintain the electronic Links connecting your Site to the appropriate page on the DisneyShopping.com Site designated for that particular Icon, and to ensure that the electronic Links are in good and working order. You must ONLY place Icons, Links or other Disney Material (as defined in Section 8 hereof) on your Site utilizing the code provided to you by us or the Manager. Unless otherwise authorized by Disney in writing, you may NOT "hard" code any Disney Material we provide for the Program on your Site. You may not alter or modify any of our Icons, Links or Images, in any way. You may ONLY display discounts, coupons and other DisneyShopping.com offers on your Site that are provided to you by us or Manager and expressly approved for use in the Program. You may NOT display DisneyShopping.com discounts, coupons or other offers on your Site that you obtain from any other source and if you display such other discounts, coupons or other offers, we may immediately terminate this Agreement. 3. PROHIBITIONS REGARDING EMAIL, FACSIMILE AND TELEPHONE MARKETING Unless otherwise authorized by Disney in a separate writing, you shall not generate or send any email messages: (i) advertising or promoting any Disney products or services; or (ii) using or containing Disney’s name, any Disney Material, or any variation thereof. You may not forward, redistribute, or otherwise repurpose any email communications that Disney sends to its affiliates and/or customers. You will not send any unsolicited commercial e-mail or other online communications under this Agreement. You hereby represent that you will comply with all laws, rules, regulations and ordinances relating to the sending of commercial emails, including, but not limited to, the federal CAN-SPAM Act of 2003. In addition, you shall not generate or send any material advertising or promoting any Disney products or services via facsimile or engage in any telemarketing activities with respect to Disney products or services. You shall defend (if requested by Disney and with counsel satisfactory to Disney), indemnify and hold harmless Disney, its parent, related, affiliated and subsidiary companies and the officers, directors, agents, employees and assigns of each (collectively, the “Disney Parties”), from and against any and all claims, losses, liability, damages, costs and expenses (including, without limitation, attorneys’ fees and costs) arising out of your breach of this Section. The Disney Parties shall have no obligation to assert against any third party that any law violates any provision of the United States Constitution or the constitution of any state. If you violate this Section, Disney may terminate this Agreement immediately and you must promptly cease all activities conducted pursuant to this Agreement including, but not limited to, the display of Disney Material on your Site. Notwithstanding the foregoing, Disney may, in its sole discretion, enter into separate written agreements with select affiliates permitting such affiliates to generate or send emails containing information regarding Disney. The provisions of this Section shall survive the termination of this Agreement. 4. ORDER PROCESSING We will process product orders placed by Customers who follow any Links from your Site to DisneyShopping.com's Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. We will track sales made to Customers who purchase products using Links from your Site to our Site and will provide you with access to reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion but will generally be available on a continuous basis. You hereby agree not to disclose the information contained in these reports to any third party without our prior written or electronic consent. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Links between your and our Site are properly formatted. All HTML tags are to be generated using the special HTML tags provided by us and are not to be altered in any manner. We will not be responsible for tracking and reporting sales that were not made through a Link formatted to our specifications. 5. REFERRAL FEES We will pay you Referral Fees on certain product sales to third parties. For a product sale to generate a Referral Fee, a Customer must follow a Link (in the format specified by us) from your Site to DisneyShopping.com's Site, purchase one or more of the Eligible Products sold on our Site using our automated ordering system, and remit full credit card approved payment to DisneyShopping.com. Products that are entitled to earn Referral Fees under the rules set forth above are hereinafter referred to as "Eligible Products," and shall be determined by Disney in its sole discretion. Referral Fees may not be earned on purchases of Disney Shopping Gift Cards or DisneyShopping.com Online Gift Cards. You will earn Referral Fees based on the Sale Price (as defined below) of Eligible Products, according to fee schedules to be established by us (and which we retain the absolute right to modify at any time). "Sale Price" means the sale price (as determined solely by Disney) listed on our Site for each Eligible Product at the time the product is purchased, excluding discounts, shipping and handling costs, costs of gift-wrapping and gift boxes, and taxes (where and when applicable). 6. FEE SCHEDULE Referral Fees earned pursuant to Section 5 shall equal five percent (5%) of the Sale Price of the respective Eligible Products sold in accordance with the provisions and procedures of this Agreement ("Referral Fees"). In our sole discretion, we may establish other special higher or lower commission rates with respect to certain promotions or otherwise modify the Referral Fees at any time. We will pay you Referral Fees through the Manager on a calendar monthly basis. Within sixty (60) days following the end of each calendar month, the Manager will send you a check for the Referral Fees earned on Eligible Products that were shipped during that month, less any taxes that we are required by law to withhold. However, if the fees payable to you for any calendar month are less than twenty-five dollars ($25), we or the Manager may withhold those fees until the total amount due is at least twenty-five dollars ($25) or (if earlier) until this Agreement is terminated. If an Eligible Product that generated a Referral Fee is returned or cancelled, we will deduct the corresponding fee from your next monthly payment. If there is no subsequent payment, we will send you an invoice due in ten (10) days for the canceled Referral Fee. 7. POLICIES AND PRICING Third parties who enter DisneyShopping.com’s Site from a Link on your Site will be deemed to be customers of Disney ("Customers"), and, all Disney rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those Customers. We may change our policies and operating procedures at any time and for any reason, including, but not limited to, determining and changing the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. BECAUSE PRICE CHANGES MAY AFFECT PRODUCTS THAT YOU ALREADY HAVE LISTED ON YOUR SITE, YOU MAY NOT INCLUDE PRICE INFORMATION IN YOUR PRODUCT DESCRIPTIONS OR OTHERWISE ON YOUR SITE. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product. 8. LIMITED LICENSE Disney grants you a limited, non-exclusive, non-transferable, without right of sublicense, world-wide, revocable right during the term of the Agreement, to display the Icons, Links and such other icons, links, images, content, tools, search boxes, text, trademarks, trade names, logos or other material (collectively with the Icons and Links, the “Disney Material”) for which Disney grants express written permission, on your Site solely in accordance with the terms of this Agreement and solely for the purpose of identifying your Site as a Program participant and generating product sales on our Site. You may not alter or modify any Icons, Links or Disney Material in any way. Disney reserves all rights in the Icons, Links and Disney Material and all other intellectual property rights. Disney may immediately revoke your license at any time and for any reason upon giving you oral, written or electronic notice. You acknowledge and agree that: (i) the Disney Material may include the trade name, trademark, service mark and/or logo of DisneyShopping.com or its affiliated companies (the "Disney Brand Features"); (ii) you have no right to alter or modify such DisneyShopping.com Brand Features; (iii) you will not use or display Disney Brand Features or any of the other Disney Material in any manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Disney or the goodwill associated with the Disney Brand Features; and (iv) you acknowledge that all rights to the Disney Brand Features are the exclusive property of Disney or its affiliated companies and that any goodwill generated through your use of the Disney Brand Features will inure to the benefit of Disney or its affiliated companies. You hereby acknowledge and agree that Disney will own all right title and interest in and to all information that is created or collected in connection with this Agreement, including, without limitation, (i) any information collected from any Disney Customer and (ii) any information regarding click-through rates or product purchases by Disney Customers ("Sales Information"). Subject to the terms and conditions of this Agreement, Disney grants you a limited worldwide, non-exclusive royalty-free license to use the Sales Information only to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. You agree not to disclose any Sales Information or Customer information to any third party without Disney's prior written approval. 9. RESPONSIBILITY FOR YOUR SITE You will be solely responsible for the development, operation, and maintenance of your Site and for all materials that appear on your Site, including, but not limited to: the technical operation of your Site and all related equipment; posting Icons on your Site and linking those Icons to our Site; the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials); ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party (including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights); and ensuring that materials posted on your Site are not libelous, do not violate any provision of this Agreement or are not otherwise illegal or unlawful. In addition, you will not modify your Site to include any of the unsuitable Site characteristics set forth in Section 1 hereof. YOU MAY NOT MAKE SPECIFIC CLAIMS REGARDING THE EFFICACY OF ANY PRODUCT. IF YOU MAKE UNSUBSTANTIATED PRODUCT CLAIMS WITH RESPECT TO PRODUCTS WE SELL, YOUR MEMBERSHIP IN THE DisneyShopping.com AFFILIATE NETWORK MAY BE TERMINATED IMMEDIATELY UPON NOTICE. You shall ensure that your Site shall contain a lawful privacy policy at all times and that you shall be in compliance with such privacy policy and any and all applicable laws at all times including, but not limited to, policies and laws regarding the privacy of customer data gathered on your Site. YOU HEREBY ACKNOWLEDGE AND AGREE THAT DISNEY SHALL NOT BE LIABLE FOR THE MATTERS STATED IN THIS SECTION 9. 10. TERM OF THE AGREEMENT The term of this Agreement will begin upon our acceptance of your Program Application and will end when terminated by either party. Either you or Disney (or the Manager on behalf of Disney) may terminate this Agreement at any time and for any reason, with or without cause, by giving the other party written or electronic notice of termination. You are only eligible to earn Referral Fees on sales occurring during the term of this Agreement, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We and the Manager may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Upon termination of this Agreement, (i) all licenses hereunder shall terminate, (ii) you shall immediately remove any Disney Material and any other Disney intellectual property or Disney Brand Features from your Site and (iii) sections 12 through 22 and this section 10 will survive such termination. 11. MODIFICATION We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Affiliate Gateway Site or otherwise providing the change notice or new agreement to you in writing. Modifications may include, but are not limited to, changes in Referral Fees, fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OR DELIVERY OF A CHANGE NOTICE OR NEW AGREEMENT WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE. 12. RELATIONSHIP OF PARTIES You and Disney are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your Site or otherwise, that reasonably would contradict anything in this Section. 13. PUBLICITY Except as expressly authorized by this Agreement, you shall acquire no right under this Agreement to use, and shall not use, the names "Disney" or "DisneyShopping.com" (either alone or in conjunction with or as part of any other word or name) or any fanciful characters or designs owned or licensed by The Walt Disney Company or any of its related, affiliated or subsidiary companies, in any advertisement, publicity or promotion on your behalf, to express or imply any endorsement by Disney of any services provided by you, or in any other manner whatsoever (whether or not similar to the uses hereinabove specifically prohibited). 14. WARRANTY You hereby warrant and represent that: (i) you have the right, power and authority to enter into this Agreement and fully perform your obligations hereunder; (ii) you are adequately financed to meet any financial obligation you may be required to incur hereunder; (iii) the making of this Agreement by you does not violate any agreement existing between you and any other person or entity; (iv) all portions of your Site that are not supplied by Disney do not violate or infringe any right of privacy or publicity or any copyright, trademark, U.S. patent or other intellectual property right, or otherwise violate or infringe any other right of any third party; and (v) you will comply with all applicable laws, rules, regulations and ordinances in effect during the term of this Agreement pertaining to your operation of your Site and to the subject matter of this Agreement. 15. INDEMNITY You shall defend (if requested by Disney and with counsel satisfactory to Disney), indemnify and hold harmless Disney and all Disney Parties, from and against any and all claims, losses, liability, damages, costs and expenses (including, without limitation, attorneys’ fees and costs) relating to: (i) the performance of your obligations under this Agreement, or any breach or alleged breach of any representation, warranty, obligation and/or covenant contained herein; (ii) the development, operation, maintenance, and contents of your Site; (iii) the act and/or omission by you and/or any of your officers, employees, representatives and/or agents; and/or (iv) the sale, use and/or offer for sale of any products other than Disney Products on the your Site. 16. LIMITATION OF LIABILITY Under no circumstances will Disney or and Disney Party be liable to you or any other person or entity for any special, indirect, consequential or exemplary damages (including, without limitation any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we, or any of our representatives, have been advised of the possibility of such damages. Further, the aggregate liability of Disney or any Disney Party arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid or payable to you under this Agreement during the twelve (12) month period prior to the date such liability arose. All claims made hereunder by you against us shall be made within ninety (90) days of the act or omission which forms the basis of such claims. 17. DISCLAIMERS We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of the Affiliate Gateway, the DisneyShopping.com Site, or any Site sponsored or used by us in connection with this Agreement will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions, errors or termination of any services or products or of this Agreement. 18. INDEPENDENT INVESTIGATION YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPLICITLY SET FORTH IN THIS AGREEMENT. 19. IDENTIFICATION OF AFFILIATES We and the Manager may identify you or your Site as a participant in the Program without providing you prior notice or obtaining your specific written consent. Such identification may be oral, written, or electronic, and may include, but is not limited to, public announcements, promotional materials, internal and external reports, and public filings. 20. NON-ASSIGNMENT AND SUCCESSORS This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. This Agreement and your rights and obligations hereunder are personal to you, may only be carried out by you and may not be assigned by you. Disney may assign, transfer, delegate and/or grant all or any part of its rights, privileges and property hereunder to any party. 21. CONFIDENTIALITY Except as required by any applicable laws, Applicant agrees not to disclose to any third party (other than to Applicant’s directors, officers, employees, agents, representatives and employees (collectively, “Representatives”) on a need to know basis only), use for Applicant’s own benefit (other than the right of Applicant or its Representatives to use for purposes of performing Applicant’s obligations under this Agreement), or permit any third party to disclose or to use any non-public, confidential or proprietary information that Disney or its Representatives make available to Applicant or its Representatives in connection with this Agreement. 22. MISCELLANEOUS This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements or representations between the parties. The provisions of this Agreement are severable and the invalidity of any provision of this Agreement shall not affect the validity of the remainder of the provisions hereof. In the event any provision contained herein shall be deemed unenforceable or contrary to law, such provision shall be curtailed and limited, but only to the extent necessary to bring it within the legal requirements, and all other provisions herein shall remain in full force and effect. This Agreement will be governed by and construed in accordance with the laws of the United States and the state of California without reference to rules governing choice of laws. Any action relating to this Agreement shall be commenced and maintained exclusively in the California State Superior Court in and for Los Angeles (or if the Superior Court shall not have jurisdiction over the subject matter thereof, then to such other court sitting in said county and having subject matter jurisdiction) for trial and determination by the Court. You hereby consent to the jurisdiction of such court and to the service of process outside the State of California pursuant to the requirements of such court in any matter so to be submitted to it, and expressly waive the right to a jury trial. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. As used herein, certain capitalized words (or any variation thereof) shall have the meaning as herein provided. Any conflict between said capitalized words and any other meaning shall be resolved as herein provided. Unless otherwise stated above, all notices and other communications required or permitted hereunder shall be in writing and shall be delivered personally or transmitted by email to LinkShare at contact@linkshare.com, or by Facsimile to (646) 602-0160 or by United States mail to LinkShare Corporation, 215 Park Avenue South, 8th Floor, New York, New York 10003, or if to you, at the email address designated on your Application. If the person entering into this Agreement is acting on behalf of his or her company or organization, such person hereby represents to Disney that he or she has all requisite power and authority to enter into this Agreement on behalf of such company or organization, that this Agreement has been duly authorized by such company or organization and that this Agreement will constitute a legal, valid, an binding obligation of such company or organization. Such person hereby agrees to indemnify and hold harmless Disney from any and all claims, damages and expenses (including without limitation attorney's fees) arising from any breach of this section.