DELL HOME SYSTEMS U.S. AFFILIATES PROGRAM AGREEMENT IMPORTANT-READ CAREFULLY: THIS AFFILIATES PROGRAM AGREEMENT, INCLUDING APPLICABLE OFFERS (COLLECTIVELY, THE "AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND DELL USA, L.P. ("DELL") FOR PARTICIPATION IN DELL'S HOME SYSTEMS (“DHS”) AFFILIATES PROGRAM ("PROGRAM") AS MANAGED BY AND THROUGH THE LINKSHARE NETWORKTM. BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM. IF YOU DO NOT AGREE TO AND ACCEPT THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY AND YOU ARE ALREADY A DELL AFFILIATE, IMMEDIATELY TERMINATE ALL USES OF DELL'S MARKS AND ANY LINKS TO DELL'S WEBSITE(S). AS USED IN THIS AGREEMENT “WE” MEANS DELL USA, L.P. AND ITS SUBSIDIARIES AND CORPORATE AFFILIATES (“DELL”) AND “YOU” MEANS THE PARTICIPATING WEB AFFILIATE (“AFFILIATE” OR “YOU”). 1. PARTICIPATION IN THE PROGRAM If you are a member of The LinkShare Network, you only need to read and agree to this Agreement. If you are not a member of The LinkShare Network, you must complete a registration form to join The LinkShare Network and then read and agree to this Agreement. We will evaluate your registration form and notify you if your Site is not accepted for participation in the Program. We may reject your application after initial approval if we determine (in our sole discretion) that your Site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that: * Promote (including, without limitation, links to) sexually explicit materials * Promote violence * Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age * Promote illegal activities or otherwise violate any applicable laws, including those targeting "spyware," "adware," or SPAM * Manipulate key word searches on portals * Misrepresent themselves as a Dell Website by co-opting the visual look and feel of or text from Dell's Site * Include Dell or variations or misspellings thereof in their domain names * Otherwise violate intellectual property rights, including, without limitation, scraping text or images from Dell's Websites * Have traffic of less than 500 unique visitors per day * Do not clearly state an online privacy policy to its visitors * Otherwise are considered offensive or inappropriate at Dell's discretion This agreement governs participation in the Dell Home Systems (“DHS”) Affiliates Program only. Once you are accepted into the Program, you will be able to participate in the Program subject to the terms and conditions of this Agreement. You should also note that if you are accepted to participate in the Program and your Site is thereafter determined (in our sole discretion) to be unsuitable based on the criteria above for the Program, we may terminate this Agreement. 2. DEFINITIONS 2.1 “Dell Site” means the U.S. only Dell Home Systems website located at the URL http://www.dell.com/us/en/dhs/default.htm. 2.2 “Offer” means a specific offer posted by Dell on its Program site located within The LinkShare Network™ Site that receives an identification number from The LinkShare Network™. The terms and conditions of such Offers shall be incorporated into this Agreement. 2.3 “Qualifying Link” means a link from your Site to Dell’s Site using one of the Required URLs or any other URL or graphic link provided by Dell for use in the Program (through the LinkShare Network). 2.4 “Qualifying Product” means a Dell product or service that is offered for sale by Dell Home Systems at the Dell Site and is the subject of an Offer. 2.5 “Qualifying Product Sales” means sales of Qualifying Products offered at Dell's Site and specifically excludes sales of Dell products and services sold: (a) by phone, (b) through any Dell sales segment other than DHS, including, but not limited to, Dell Auction@DellExchange, Dell D onation@DellExchange, Dell Host, Dell Employee Purchase Programs, Dell’s Business Systems Division (“BSD”), or Premier pages, or (c) through a non-U.S. site. 2.6 "Qualifying Product Revenues" means revenues derived by us from Qualifying Product Sales, excluding costs for shipping, handling, gift-wrapping, taxes, service charges, credit card processing fees, bad debt, and promotional discounts as advertised. 2.7 “Required URLs” means the special URLs specified in an Offer to be used to link from your Site to Dell's Site. 2.8 “Session” means the period between the time a Customer (as defined in Section 5.1 below) first clicks on a Qualifying Link on your Site and the time the Customer makes an online purchase at the Dell Site, provided that both the click on the Qualifying Link and such online purchase is made during the same browser session. By way of example and for clarification, a Session will occur if a Customer exits the Dell Site after clicking through a Qualifying Link but returns directly to the Dell Site during the same browser session. However, a Session will not occur if a Customer exits the browser after clicking through a Qualifying Link, then relaunches the browser and returns to the Dell Site. 2.9 “Site” means a World Wide Web Site and, depending on the context, includes the website that you will link to the Dell Site as identified in your Linkshare.com registration form. 3. OFFERS 3.1. From time to time, Dell may post on The LinkShare Networkä Offers to pay members of The LinkShare Networkä, as well as other participating Dell web affiliates who may not be members of The LinkShare Network™, a specified referral fee on certain Qualifying Product Sales to third parties through a Qualifying Link. 3.2. The terms of an Offer, as posted on The LinkShare Networkä or otherwise communicated to you shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Offer and the terms of this Agreement, the terms of the Offer shall govern. 3.3. At any time prior to you providing a Qualifying Link, Dell may with or without notice (a) change, suspend or discontinue any aspect of an Offer or (b) remove, alter, or modify any graphic or banner ad provided to you pursuant to an Offer. You agree to promptly implement any request from Dell to remove, alter or modify any graphic or banner ad submitted by you that is being used in connection with an Offer. 4. YOUR RESPONSIBILITIES 4.1. You shall only link your Site to areas within Dell’s Site using Required URLs for the Program. You may post as many links to the Required URLs as you like. The position, prominence and nature of links on Dell’s Site shall comply with any requirements specified in the Offer, but otherwise will be in Dell’s discretion. Only valid Qualifying Links generated by The LinkShare Network™ will be tracked for purposes of determining referral fees that you may be eligible to receive on Qualifying Product Sales generated through your Site. 4.2. Dell will not, and is not obligated to, make any representations, warranties or other statements concerning you, your Site, any of your products or services, or your Site policies, except as expressly authorized by the Offer. 4.3 You will be solely responsible for the development, operation and maintenance of your Site and for all materials that appear on your Site. We disclaim all liability for such materials. You shall indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney’s fees) relating to the development, operation, maintenance and contents of your Site. You are also responsible for notifying us and The LinkShare Network™ of any malfunctioning of the Required URLs or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement. Dell (or a designee such as The LinkShare Network™) will respond in normal course to all concerns upon notification. 5. REFERRAL FEES 5.1. We agree to pay you the referral fee based on Qualifying Product Revenues specified in the Offer if: (a) a visitor to the Dell Site (a “Customer”) purchases a Qualifying Product, accepts delivery of the Qualifying Product at the shipping destination within the 50 United States, and remits full payment to us; (b) that Customer has accessed the Dell Site and completed a Qualifying Product Sale online via a Qualifying Link from your Site, provided that it is the last link to the Dell Site that the Customer uses during a Session where a sale of a product or a service to Customers occurs; (c) that Customer does not subsequently return or cancel the Qualifying Product purchase; (d) the Customer’s order for the Qualifying Product did not involve interaction with a live Dell sales representative (e.g., Customer saves the order for the Qualifying Product in a “Cart” and then calls a Dell sales representative to complete the order); and (e) you have not otherwise received a referral fee, discount or other payment from Dell (such as a Webcertificate for the “Refer-A-Friend” program) based on that Qualifying Product Sale. In the event that a Customer purchases a Dell product or service through another Dell sales segment (e.g., Business Systems Division (“BSD”) after accessing the Dell Site through a Qualifying DHS Link, Dell may, but is not obligated to, pay you a referral fee based on the then current referral fee program terms for the other sales segment. Ex. If a Customer purchases a Dell product or service through the Business Systems Division after accessing the Dell Site through a Qualifying DHS Link, Dell will pay you a referral fee if you are registered to participate in the BSD program. If you are not registered for that program, Dell may, but is not obligated to, pay you a referral fee. 5.2. Dell shall have the sole right and responsibility for processing all orders made by Customers. You acknowledge that all agreements relating to sales to Customers shall be between Dell and the Customer. Customers who buy products through this Program will be deemed to be Customers of Dell. Accordingly, all Dell rules, policies, and operating procedures concerning customer orders and returns, customer service, customer data, and product sales will apply to those Customers. We may change our policies and operating procedures at any time. For example, we will determine 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. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular Product. 5.3 All determinations of Qualifying Links and whether a referral fee is payable will be made by The LinkShare Network™ and will be binding on both of us. 5.4 For unresolved credit issues needing review, orders will need to be submitted to your current Dell and/or LinkShare contact or to DellHome@Linkshare.com within 120 days of the transaction date. 6. REFERRAL FEE PAYMENT 6.1 Unless otherwise stated in an Offer Addendum, we will pay you referral fees on a monthly basis. Approximately sixty (60) days following the end of each month, we (or our designee, The LinkShare Network™) will send you a check for the referral fees earned on Qualifying Product revenues for that month, less any returns and canceled orders. However, if the referral fees payable to you for any month are less than $50.00, we will hold those referral fees until the total amount due is at least $50.00 or (if earlier) until this Agreement is terminated. If a customer returns a Qualifying Product that generated a referral fee, we will deduct the corresponding referral fee from your next monthly payment. If there is no subsequent payment, we will send you an invoice for the referral fee payable within thirty (30) days of your receipt of the invoice. 7. OWNERSHIP AND LICENSES 7.1 Each party owns and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. 7.2 We grant you a limited, revocable, non-exclusive, license to use the graphic image and text, which may include our name, logos, trademarks, service marks (collectively, the "Dell Marks"), designated in the Offer, only as provided to you through The LinkShare Network™ Site and solely for the purpose of creating links from your Site to our Site pursuant to this Agreement. Except as expressly set forth in this Agreement or permitted by applicable law, you may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. Any prominent use of the Dell Marks on your Site must be approved by Dell prior to publishing. We may revoke your license at any time by giving you written notice. 7.3 The Parties understand and agree that Dell Computer Corporation, a related company of Dell USA, L.P., owns the Dell Marks and may be a necessary party in any undertaking to enforce this Agreement. 7.4 As a condition to your acceptance and participation in the Program, you agree to not undertake or engage in the following practices, and any violation of this Section shall be deemed a material breach of this Agreement: (a) Use or otherwise incorporate the word "Dell" or variations or misspellings in the domain name(s) of your Site(s), on any meta tags of Web pages comprising your Site, or in advertising or searchable keywords; (b) Modify or alter Dell's Site in any way; (c) Make any representations, either express or implied, or create an appearance that a visitor to your Site is visiting Dell's Site, e.g. "framing" the Dell Site, without Dell's prior written approval; or (d) “Scrape” or “spider” the Dell Site or any other Dell website for content (such as images, logos and text). 8. TERMINATION 8.1 Either party may terminate an Offer at any time by deleting their acceptance of the Offer through The LinkShare Network™. Termination of a specific Offer shall not be deemed to terminate any other Offers. 8.2 Either party may terminate this Agreement at any time, for any reason, upon five (5) days prior written notice of such termination to the other party and The LinkShare Network™. In addition, Dell shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if Dell determines, in its sole discretion, that there are technical or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently or through misrepresentation, in which case Dell reserves the right to withhold payment of associated referral fees pending an investigation of the suspected fraud or misrepresentation. Termination of this Agreement shall also terminate any outstanding Offer. However, all rights to payment, causes of action and any provisions that by their terms are intended to survive termination, shall survive termination of this Agreement. 8.3 Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your Site, all links to our Site, and all Dell trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. 8.4 You are only eligible to earn referral fees on Qualifying Product Revenues occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related Qualifying Products are not canceled or returned by a Customer. In addition, we may invoice you for referral fees that were paid to you prior to termination if those referral fees relate to Qualifying Products that are subsequently canceled or returned by a Customer. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. 9. REPRESENTATIONS 9.1. You represent and warrant that (a) you have the authority to enter into this Agreement and sufficient rights to grant any licenses expressed herein, and (b) any material displayed on your Site will not: (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines’ or (ix) otherwise constitutes an “unsuitable Site” as determined by Dell in accordance with the terms outlined in the Section I. above titled “Participation in the Program.” 9.2. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DELL MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 10. INDEMNIFICATION Each party hereby agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein. 11. LIMITATION OF LIABILITY In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement, the Program, or the The LinkShare Network, even if informed of the possibility of such damages. Further, Dell’s aggregate liability arising from this Agreement and the Program shall not exceed the total referral fees paid or payable to you under this Agreement. 12. GENERAL 12.1 No Agency. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement (including any Offer) shall create any partnership, joint ventures, agency, franchise, sales representative or employment relationship between the parties. Neither party shall make any statement, whether on their sites or otherwise, that reasonably would contradict anything in the paragraph. 12.2 Responsibility for Binding Agreement. 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 Sites that are similar to or compete with your 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 set forth in this Agreement. 12.3 Jurisdiction; Venue. THIS AGREEMENT HAS BEEN MADE IN AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATE AND TEXAS WITHOUT REFERENCE TO RULES GOVERNING CHOICE OF LAWS. ANY ACTION TO ENFORCE THIS AGREEMENT MUST BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS, and you irrevocably consent to the jurisdiction of such courts. 12.4 Notice. Any notices required or permitted by this Agreement must be delivered to Dell via registered mail to: Dell USA, L.P. One Dell Way Round Rock, Texas 78682 Attention: Dell U.S. Affiliates Program Manager With a copy to: Dell Legal Department Any notices required or permitted by this Agreement or communications in connection with this Program will be sent to you by Dell via e-mail at the address you provided when you registered to become a member of The LinkShare Network™. 12.5 Counterparts; Manifestation of Assent. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties. 12.6 Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. 12.7 Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. 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. 12.8 Equitable Relief. The parties agree that any breach of either of the party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction. 12.9 Obligation to Mediate in Good Faith. Except as provided in this Section 12.7, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties' performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designate an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honor the other's reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section 12.8. 12.10 Force Majeure. You acknowledge that Dell's and LinkShare's servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond Dell's and LinkShare's reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. Dell and LinkShare will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program. 12.11 Attorneys' Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is be entitled to receive from the other party, will be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action. 12.12 Survival. Sections 8 (Termination), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General), including all subsections thereof, shall survive the termination of this Agreement. 12.13 Modifications. 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 LinkShare Site and giving you notice of the modification through the LinkShare Network(tm) or through a subsequent written agreement between the parties. Modifications may include, for example, changes in the scope of available referral fees, referral 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 OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.