Advertising Services Agreement

Section 1.0 - Introduction

Advertising on Top10Links is a fee based service owned and operated by Top10Links, which provides advertising space on the Top10Links directory of web sites located at www.top10links.com and other related domain names.

Section 2.0 - Agreement

2.1 This Services Agreement ("Agreement") is entered into by and between Customer ("Customer" or "You") and Kelly Publishing, DBA Top10Links ("Top10Links") regarding Customer's use of the Services (defined below).

2.2 This Agreement sets forth the entire terms and conditions under which Top10Links makes the Services available to Customer.

2.3 BY COMPLETING THE SERVICE REGISTRATION FORM AND CLICKING THE PAYMENT BUTTON YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER, THAT YOU AGREE TO PROVIDE TRUE, ACCURATE, CURRENT AND COMPLETE INFORMATION (INCLUDING AN ACCURATE E-MAIL ADDRESS) AS PROMPTED BY THE REGISTRATION FORM, THAT, TO THE BEST OF YOUR KNOWLEDGE, THE ADVERTISEMENT SUBMITTED IS IN COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, AND THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT.

2.4 Top10Links reserves the right, in its sole discretion, in the future, to change, modify, add or remove all or part of this Agreement at any time and without notice.

Section 3.0 - Definitions

For purposes of this Agreement the following terms will have the indicated meanings:

3.1 "Above The Fold" means the location of Customer's Advertising on a web page, visible to visitors without the need to scroll the browser window.

3.2 "Advertisement" means the text or graphics of the Customer's Creative visible to the visitor. May take the form of a banner, micro button, text link or HTML form.

3.3 "Campaign" means the details of the Customer's Creative.

3.4 "Click Throughs" means the number of times Customer's Advertisement has been clicked on according to Top10Links Statistics.

3.5 "Creative" means the files and/or code supplied by Customer in order for Top10Links to create Customer's Advertisement.

3.6 "Impression" means the number of times a Customer's Advertisement has been loaded into a visitors browser according to Top10Links Statistics.

3.7 "Insertion Order" means the online pages containing the details of Customer's Campaign as specified by Customer that are submitted to Top10Links when an order is placed.

3.8 "Services" means the Top10Links advertising services to be provided by Top10Links for Customer under this Agreement, as more fully described below and in Top10Links Insertion Order.

3.9 "Start Date" means the date on which Customer's Campaign begins.

3.10 "Statistics" means the Impression and Click Through data as provided by Top10Links.

3.11 "Term" shall have the meaning indicated in Section 12.

3.12 "Below The Fold" means the location of Customer's Banner on a web page, usually not visible to visitors without the need to scroll the browser window down or vertically.

3.13 "Right Column" means the location of Customer's Banner on the right side of a web page, visible to visitors with or without the need to scroll the browser window.

3.14 "Web Site" means the web site to which Click Throughs on Customer's Advertisement go to.

3.15 "URL" means the Internet address of the Web Site submitted to Top10Links by Customer.

3.16 "Listing" means how the Customer's Web Site name appears in the Directory.

3.17 "Title" means the Customer's company or organization name. When no company or organization name is available, the Web Site's title or domain name.

3.18 "Email Address" means the electronic address required and provided by Customer during the registration process.

3.19 "Business Days" means seven days excluding Saturday, Sunday, any holiday as observed by Top10Links or any day in which there are problems processing Customer's order.

3.20 "International Customers" means those Customers located outside of the United States.

3.21 "Minimum Requirements" means the list of criteria that all Click Through URLs must meet.

3.22 "End Date" means the date on which Customer's Campaign ends.

Section 4.0 - Provision of Services

4.1 Services.

In consideration of full payment from Customer and when full payment and successful completion of Top10Links Insertion Order has been received by Top10Links, in accordance with this Agreement, Top10Links agrees that they shall deliver Customer's Advertisement Above The Fold on Top10Links web pages, as requested by Customer and agreed to by Top10Links in the Top10Links Insertion Order.

Top10Links reserves the right in its sole discretion to determine if the site the Customer's Advertisement leads to meets the posted Minimum Requirements to determine which Advertisements to accept.

Top10Links, at its own expense, shall provide all bandwidth, data storage, web server capacity and any other hardware and software required to serve and track total Impressions and Click Throughs of Customer Advertisements.

4.2 Access.

In order for Top10Links to consider accepting a Customer's Advertisment, Customer's Web Site that an Advertisement leads to must be fully accessible. If any part of Customer's Web Site offers access on a subscription basis, Customer must provide Top10Links with a guest userid/password, valid for a period no shorter than 30 days. The guest userid/password will be used solely by a Top10Links representative for the purpose of evaluating whether the site meets Top10Links Minimum Requirements and is thus acceptable.

4.3 Acceptance

If Top10Links decides to accept Customer's Advertisement, Top10Links reserves the exclusive and sole right to decide:

a) What category(s) the Advertisements will appear in.

b) The exact position and frequency of the Advertisement.

c) In the case of Sponsored Listings, the Listing Title and Description of the Advertisement or any other aspect of the Web Site Listing.

4.4 Changes

If Customer wishes to make changes to any aspect of Customer's Campaign, the changes must be made through our online account center. All changes initiated through the account center are considered "requests" for changes and are subject to review and approval by Top10Links. Top10Links reserves the right, in its sole discretion, to approve all, some or none of the changes requested by Customer.

4.5 Statistics

As a courtesy only, Top10Links shall provide Customer with online Statistics showing the total number of Impressions and Click Throughs. Statistics shall be treated as confidential information as appropriate under the terms of this Agreement, based on the underlying information contained therein. Customer agrees that the total number of Impressions and Click Throughs as displayed in the Statistics are accurate and final. Customer understands and agrees that Top10Links does not guarantee how many, if any, Click Throughs Customer's Campaign will receive.

4.6 Customer Information.

Customer agrees to provide certain complete, current and accurate information as required during the submission of all data to Top10Links, including the Insertion Order and where applicable credit application. Customer also agress to maintain and update their contact information in the account center to keep it complete, current and accurate.

4.7 Nonexclusive Services.

Customer understands and agrees that Top10Links will provide the Services on a nonexclusive basis and that Top10Links will continue to provide advertising solutions to other parties that may be competitors to Customer before, during and after Customer's Campaign.

4.8 Campaign Dates

Unless specified otherwise on the Insertion Order, the Start Date of Customer's Campaign will be within 48 hours of receipt of payment or in cases where Top10Links has granted credit terms, within 48 hours of receipt of Insertion Order and Creative. Unless specified otherwise on the Insertion Order, the End Date of Customer's Campaign will be the date the purchased number of Impressions, as specified in the Insertion Order, have been served by Top10Links as determined by the Statistics provided to Customer by Top10Links.

4.9 Inventory Availability

Top10Links will make all efforts to generate the required number of Impressions to complete Customer's Campaign. Due to variances in traffic, we project, but do not not guarantee, levels of available inventory during your campaign. If Top10Links is unable to deliver the contracted number of Impressions within 1 year of the contract, and the billing difference meets our minimum order amount at the time, the billing difference can be credited towards future advertising on Top10Links at Customers option.

4.10 Rate Adjustments

Top10Links reserves the right to make adjustments to the published rates at anytime. Rates on Insertion Orders are to be considered "requests" and are not guaranteed. Changes to the rate card will not affect campaigns currently running but will affect Campaigns that have been submitted but not yet started running.

Customer and/or their Agencies understand that any frequency discounts offered are based on the Customer's/Agency's commitment to fulfilling the frequency indicated in the Insertion Order. If, for any reason, this frequency is not met, Customer/Agency agrees to pay a short rate charge on all Advertisements delivered. This charge will be equal to the difference between the rate shown in the Insertion Order and the rate earned based on the applicable rate card for the actual frequency completed.

4.11 Public Relations

Customer shall not issue a press release or public announcement or otherwise make any disclosure concerning the Insertion Order, this Agreement or the terms hereof, without prior approval by Top10Links.

Section 5.0 - Customer's Creative

5.1 Delivery

Customer hereby agrees to deliver Creative to Top10Links no less than three business days prior to the Start Date of Campaign. Once Campaign has begun, Customer may change their Creative provided it is sent to Top10Links no less than three business days before Customer wants the changes made.

5.2 Restrictions

Customer agrees not to submit to Top10Links any Creative containing, or containing links to, content promoting the use of alcohol, tobacco or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal activity, racism, hate, "spam", mail fraud, pyramid schemes, or investment opportunities or advice not permitted under law. Customer agrees that all Creative is subject to prior approval and Top10Links reserves the right, in its sole discretion and without liability, to reject any Creative for any reason at any time and regardless of whether such Creative was previously accepted or published. Customer hereby understands and agrees to the Banner specifications and restrictions as outlined on Top10Links web site at: http://www.top10links.com/advertise/banners.htm

5.3 License

Customer and its Agency, if there is one, each represents that it is the owner or is licensed to use the entire contents and subject matter contained in its Creative, including: the names and/or pictures of persons; any copyrighted material, trademarks, and/or depiction's of trademarked goods or services; any testimonials or endorsements contained in any Creative submitted to Top10Links.

Section 6.0 - Cancellation Policy

Customers who wish to cancel their Campaign before the Start Date must notify Top10Links with their intention to cancel at least 48 hours in advance of their Campaign's Start Date.

Customers who wish to cancel after a Campaign has started, must provide 7 days advanced notice before cancellation date.

Customers who request cancelation will be short rated on all delivered Impressions from Campaign Start Date to cancellation date. The amount charged will be based on the shorted rate card amount in effect on the date the Campaign was started. The difference is NOT refundable but can be applied towards future advertising at Top10Links so long as the difference meets our minimum order requirements at the time. If the difference does not meet the minimum order requirements at the time, Customer can pay the difference in order to meet the minimum requirements.

Section 7.0 - Service Fee

7.1 Payment.

Customer acknowledges and agrees that full payment for Services must be received before Services can be provided and once payment has been submitted Customer is not eligible for a refund. Top10Links requires Customers within the United States to submit a valid credit card or checking account information online on a secure server during the order process. All payments must be made in US dollars payable to Kelly Publishing.

7.2 Minimum Order

Customer shall pay Top10Links service fees as set forth and in the amount specified in the Top10Links Insertion Order. All Insertion Orders are subject to a minimum order of no less than $100. Top10Links reserves the right to process orders submitted for amounts less than $100.

7.3 Terms

Customers that have not completed and submitted a credit application that has been approved are required to provide full payment in advance of the start of their campaign.

Customers that have submitted a credit application and been approved for a credit limit equal to or greater than the total on the Insertion Order will be invoiced on or around the first day of the campaign. Full payment is due within thirty (30) days of receipt of invoice by Customer.

7.4 Late Payment

Should Customer's granted credit approval fail to pay required service fees within 30 days of receiving an email or postal mail invoice at the email or physical address provided by Customer, Top10Links, at its option, reserves the right to cancel Customer's Campaign and terminate this Agreement. Late payments bear interest at the rate of 2% per month, or, if less, the highest rate permitted under law.

7.5 Discounts

Top10Links offers a 15% discount to agencies recognized by Top10Links provided agency pays invoice in full and when due. If Customer is an advertising agency, Top10Links shall have the right to hold Customer and its advertiser jointly and severally liable for all payments due to Top10Links under the Insertion Order.

7.6 Taxes

Customer shall be responsible for all sales taxes and other similar taxes imposed by any federal, state or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Top10Links net income.

When Top10Links has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Top10Links with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.7 International Customers

Top10Links requires International Customers to submit a valid credit card online on a secure server during the order process. International Customers must pay a transaction fee of at least 2.6% of the Advertising fee plus 30 cents.

7.8 Refunds

Customer understands and agrees that once Customer submits payment through our online payment processor there are no partial or full refunds for this Service and any charges made to their credit card or withdrawals from their checking account for the Service are NON-REFUNDABLE.

7.9 Affilliates

Customer understands and agrees that if Customer is also an affiliate of Top10Links, any fees paid for Service by Customer are not subject to commission towards their account.

Section 8.0 - Use of Data

Customer acknowledges and agrees that Top10Links may use the information about Customer on its servers and any registration information submitted by Customer in aggregate form for research and product development, marketing, or other promotional purposes.

Customer hereby agrees that Top10Links has the right (but not the obligation) to disclose any such information if Top10Links believes such disclosure is needed to a) comply with the law or legal process; b) to protect the rights and interests of Top10Links or others; c) to enforce this Agreement.

Top10Links may contact Customer regarding Service using the Customer's email address as provided during the registration process or as updated by Customer.

Section 9.0 - Warranties and Disclaimers

Both Top10Links and Customer represent and warrant to the other party that during the Term both parties: (i) have full power and authority to enter into this Agreement, (ii) do not infringe any trade secret or copyright of any person or entity, (iii) will seek all necessary governmental approvals required for its performance under this Agreement, (iv) shall perform all of its obligations under this Agreement in accordance with all applicable, federal, state, and local laws.

Top10Links does not warrant that the Services will meet all of Customer's requirements or that performance of the Services will be uninterrupted or error-free. TOP10LINKS MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NONINFRINGEMENT.

Section 10.0 - Limitation of Liability

EXCEPT FOR INDEMNIFICATION UNDER SECTION 8, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES INCLUDING DAMAGES FOR LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOST OR IMPUTED PROFITS HOWEVER CAUSED UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE. IN NO EVENT SHALL TOP10LINKS LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE NET AMOUNT TOP10LINKS HAS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. EACH PARTY HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE SUCH PARTY OF AN ADEQUATE REMEDY AND AGREE THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK.

Section 11.0 - Indemnification

Customer agrees to defend, indemnify, and hold harmless Top10Links and its partners, parents, subsidiaries, shareholders, officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party or Customer claims, demands, liabilities, costs and expenses, including reasonable attorneys' fees, costs and expenses resulting from (a) the indemnifying party's material breach of any duty, representation, or warranty under this Agreement (b) any infringement of any trade secret, patent, trademark, or copyright (C) violation of any proprietary right and invasion of any privacy rights (D) copying, printing distributing or publishing of any Advertisement at Top10Links. Top10Links has the right (but not the obligation), at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer, which shall not otherwise excuse Customer's indemnity obligations.

Section 12.0 - Nondisclosure and Confidential Information

Customer shall not disclose any of the terms and conditions of this Agreement to any third party without the express written consent of Top10Links. Neither party shall disclose to any third party the Confidential Information of the other party and shall not use any such Confidential Information for any purpose other than the purpose for which it was originally disclosed to the receiving party.

"Confidential Information" means any information of a party disclosed to the other party, which is identified as, or should be reasonably understood to be, confidential to the disclosing party, including, but not limited to this Agreement, Insertion Order, Statistics, know-how, trade secrets, technical processes and formulas, software, customer lists, unpublished financial information, business plans, projections, and marketing data.

"Confidential Information" shall not include information that (i) is known to the receiving party at the time it receives Confidential Information; (ii) has become publicly known through no wrongful act of the receiving party; (iii) has been rightfully received by the receiving party from a third party authorized to make such communication without restriction; (iv) has been approved for release by written authorization of the disclosing party; or (v) is required by law to be disclosed.

Section 13.0 - Term And Termination

The term of this Agreement (the "Term") shall commence on the Effective Date and shall continue in force until Customer's Campaign has completed, unless earlier terminated as provided herein.

13.1 Termination.

Either party may suspend performance and/or terminate this Agreement: (a) if the other party materially breaches any term or condition of this Agreement and fails to cure that breach within fifteen (15) days after receiving written notice of the breach; or (b) if the other party becomes insolvent or makes any assignment for the benefit of creditors; or (c) if the other party has a trustee or receiver appointed for its business or assets; or (d) if Customer cancels its Campaign in accordance with the Cancellation Policy as specified in section 6.0 of this Agreement; or (e) if the Customer fails to pay Top10Links when due.

13.2 Effect of Termination.

Upon the termination of this Agreement for any reason (i) all license rights granted herein shall terminate, (ii) Customer shall immediately pay to Top10Links all amounts due and outstanding as of the date of such termination and (iii) each party shall return to the other party, or destroy and certify the destruction of, any and all confidential information of the other party.

13.3 Survival.

In the event of any termination or expiration of this Agreement for any reason, Sections 3, 4.7, 4.10, 4.11, 5, 6, 7, 9, 10, 11, 12, 13 and 14 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.

13.4 Extension of Agreement

If Customer's Campaign lasts 60 days or longer, and they request within 30 days of the end of their Campaign to extend this Agreement, Top10Links may, at its option, choose to extend this Agreement.

Section 14.0 - Miscellaneous

14.1 Independent Contractors.

The parties to this Agreement are independent contractors. Neither party is an agent or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

14.2 Assignment.

Customer may not assign or otherwise transfer, whether voluntarily or by operator of law, any rights or obligations under this Agreement without the prior written consent of Top10Links. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

Section 15.0 - Force Majeure

Neither party to this Agreement shall be liable to the other for any delay or failure in performance under the Agreement resulting directly or indirectly from acts of God, or any government or any governmental body, acts of war, the elements, strikes or labor disputes, riots, insurrection, fire, floods, storm, explosions, earthquakes or other cause beyond the reasonable control of Top10Links

Section 16.0 - Notices

Any notices or communications required or permitted under the terms of this Agreement or by law shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Top10Links, such notices shall be addressed to the following:

By Electronic Email:

support@kellypublishing.net

By Standard Mail:

Top10Links - Express Submit
255 South Rengstorff Avenue, #132
Mountain View, CA 94040

If to Customer, such notices shall be addressed to the electronic or mailing address supplied by Customer when they registered at Top10Links.

Section 17.0 - Entire Agreement

This Agreement sets forth the entire Agreement between the parties and supersedes prior proposals, agreements, and representations between the parties, whether written or oral, regarding the subject matter contained herein. This Agreement may be changed only by mutual agreement of the parties in writing. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute together but one and the same document.

Customer acknowledges that they have read this Agreement, agree to all its terms and conditions. Furthermore, Customer has independently evaluated the desirability of participating in this Agreement and is not relying on any representation, guarantee or statement other than as set forth in this agreement. Customer acknowledges that they are not competitors of Top10Links. Customer agrees that this Agreement will have precedence over any and all terms and conditions specified on any signed or unsigned document submitted to Top10Links.

Section 18.0 - Governing Law

This Agreement and the relationship between Customer and Top10Links will be governed by the laws of the state of California and the United States of America, without regard to its conflict of law provisions, applicable to contracts entered into and performed entirely within the state of California (without giving effect to any conflict of law principles under California law).

Customer and Top10Links agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of California for the County of Santa Clara or the United States District Court for the Northern District of California Top10Links failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.

Section 18.0 - Severability

If any provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, such invalid, unlawful or unenforceable provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, to the Agreement, or to Customer's Listing in the Directory must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Section 19.0 - Section Titles

The section titles in the Agreement are for convenience only and shall have no legal or contractual effect on the interpretation of any part or provision regardless of the title heading under which the part of provision is allocated.