FetchBack, Inc. Terms and Conditions

Revised: January, 2008

1. Terms
   1. The following terms and conditions apply to the services provided by FetchBack, Inc., and constitute an agreement between the parties.  The agreement (the “Agreement”) is entered into effective as of the date of execution noted on the first page of the corresponding Insertion Order (the “Order”), if one exists, between FetchBack, Inc., an Arizona limited liability company with its principal place of business at 401 S. Mill Avenue, Suite #201 Tempe, AZ 85281 (“FetchBack”) and the party or parties requesting services from FetchBack (“Advertiser).  If no Insertion Order exists, then this Agreement is effective when the Advertiser selects "I have read and agree to the Terms and Conditions" on the FetchBack website. 
2. Advertising Obligations
   1. FetchBack’s sole obligation under this Agreement will be to use commercially reasonable efforts to deliver the Creative in the manner specified in the Order (“Creative”).  Such Creative will be (1) created by FetchBack on site(s) and distributed via the FetchBack Network, or (2) provided by Advertiser as specified in the Order. 
   2. All Creative will be subject to FetchBack’s approval.  FetchBack reserves the right to reject, discontinue, or omit any Creative or any part thereof for any reason.  This right will not be deemed waived by acceptance or actual use of any Creative.
3. Payment and Refunds
   1. Advertiser will pay FetchBack in accordance with the Order.  If no Order exists, Advertiser will pay FetchBack in advance via cash payment or credit card.  All payments will be made in advance unless: (1) otherwise specified; or (2) credit is approved.  Upon approved credit, payment will be made within 30 days from date of invoice.  In the event Advertiser pays with credit card, Advertiser expressly agrees that Advertiser will not charge back on such credit card account.
   2. FetchBack will be under no obligation to provide Creative until payment is received.  
   3. Advertiser understands that impression counts may vary and that Advertiser will be responsible for any impressions delivered to a campaign, even if they exceed the amounts outlined in the Order.  All payments will be based on FetchBack's measurements and not based upon those of Advertiser or any other party. Unless otherwise specified, all invoices created by FetchBack relating to the Creative will be in accordance with measurement and tracking as conducted by FetchBack.
   4. FetchBack will refund any amounts remaining on deposit if Advertiser has met all commitments under this Agreement including complete payment for all Creative.
4. Limitation of Liabilities
   1. Under no circumstances will FetchBack be liable for any indirect, incidental, consequential, special or punitive damages of any kind or nature (even if such damages are foreseeable, and whether or not Advertiser had been advised of the possibility of such damages) arising from any aspect of this Agreement.
   2. Notwithstanding any other provision of this Agreement, the liability of FetchBack will be limited to the total amount paid by Advertiser to FetchBack under this Agreement.
   3. FetchBack will not be liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond FetchBack’s control affecting production or delivery in any manner.
5. Indemnification
   1. Advertiser will indemnify FetchBack and hold FetchBack harmless from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by FetchBack, arising out of or related to (a) Advertiser's breach of any of the representations and warranties in this Agreement; (b) nonfulfillment of any obligation hereunder to be performed by Advertiser; or (c) infringement or alleged infringement of a third party's intellectual property rights resulting from FetchBack’s performance of its duties or exercise of its rights under this Agreement.
   2. FetchBack will promptly notify the Advertiser of any threat of a claim that FetchBack becomes aware of and that may give rise to a request for indemnification hereunder.
6. Warranties
   1. Advertiser warrants that: (a) Advertiser has authorized the person who has executed this Agreement for Advertiser to execute and deliver this Agreement to FetchBack on behalf of Advertiser; and (b) information, if any, supplied to FetchBack by Advertiser for inclusion within the Creative will not be procured or produced inconsistently with U.S., foreign, or international law.
   2. FetchBack provides no warranty regarding any aspect of the Creative.  FetchBack does not warrant that any portion of the Creative will meet the Advertiser’s requirements or that the use of any portion of the Creative will be uninterrupted or error free.  FetchBack does not warrant that the Creative, as originally delivered or as upgraded or modified, will conform to any applicable descriptions or specifications associated with the Creative.  FetchBack provides no warranty regarding compliance issues with third party software, compliance issues with hardware, and or compliance regarding updates of newer versions of the Creative.
   3. NEITHER FETCHBACK NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES OR SUPPLIERS MAKE ANY WARRANTIES EXPRESS, IMPLIED, STATUTORY OR IN ANY COMMUNICATION WITH ADVERTISER WITH RESPECT TO THE CREATIVE, THIRD PARTY SOFTWARE, OR ANY PRODUCT, AND FETCHBACK AND ITS PARENTS, SUBSIDIARIES, AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
7. Confidentiality
   1. In the event that either party gains access to non-public and/or proprietary information of the other party under this Agreement, the party gaining such access will treat such information as confidential.  Under this Agreement, the term “Confidential Information”, and variations of that term, will be defined to include information related to marketing, business, technology, strategy, the terms of this Agreement, and/or the like, that is not generally known or available to the public.
   2. Each party will: (a) not disclose to any third party or cause to be disclosed any of the other party’s Confidential Information unless otherwise specified; (b) refrain from using the other party’s Confidential Information unless otherwise specified; and (c) preserve and protect the confidentiality of the other party’s Confidential Information with the same degree of care it uses to protect its own Confidential Information, but in no event less than reasonable care.
   3. Confidential Information does not include information that is: (a) already publicly available; (b) otherwise known to the receiving party through no wrongful conduct of the receiving party or Advertiser; or (c) required to be disclosed by law or court order.
   4. FetchBack and/or Advertiser may disclose Confidential Information to such party's agents, attorneys and other representatives or any court of competent jurisdiction as reasonably required to resolve any dispute between FetchBack and Advertiser.
8. Termination and Breach
   1. This Agreement will be for a term of 1 year unless otherwise specified in the Order.  This Agreement may be extended in one year increments through the conduct of the parties or by a supplemental properly executed agreement.
   2. FetchBack retains the right to terminate this Agreement, in whole or in part, with or without cause, at any time.
   3. Upon termination for any reason, Advertiser will remain liable for any amount due for services delivered by FetchBack and Advertiser’s obligation to pay will survive termination of this Agreement.  Advertiser understands that the amount of time required to terminate a campaign is directly tied to settings found in their account and termination may take as long as 30 days from the date of notice.  Advertiser will be responsible for any additional fees incurred during this period.  Any cancellation notice will be based on the date the written notice was received by FetchBack.
9. Miscellaneous
   1. Advertiser must not assign, license, sublicense, or otherwise transfer any rights or obligations under this Agreement.  Any such transfer will be void and without effect, and may constitute breach of this Agreement.  Notwithstanding these provisions, rights and obligations under this Agreement may be transferred in the event that Advertiser is involved in a merger or an acquisition.  Such transfer will only be effective if to the surviving or acquiring company.
   2. All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and delivered to the other party.
   3. Unless otherwise specified, this Agreement may only be modified, or any rights under it waived, by a written document executed by FetchBack and Advertiser.
   4. This Agreement will be interpreted, construed and enforced in all respects in accordance with laws of the State of Arizona, without regard to the state or country of incorporation or operations of Advertiser, or activity of either party in accordance with this Agreement.  Advertiser hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of Arizona and the federal courts situated in Maricopa County in the State of Arizona in connection with any dispute arising under this Agreement.
   5. In the event that any provision of this Agreement is held by a court of law or other government agency to be void, voidable, or unenforceable, the remaining provisions will remain in full force and effect.
   6. The Confidentiality, Warranties, Limitation of Liabilities. and Indemnification provisions will survive any termination or expiration of this Agreement.
   7. This Agreement, in conjunction with the Order, sets forth the entire agreement between Advertiser and FetchBack and supersedes any and all prior and contemporaneous agreements (whether written or oral) of FetchBack and Advertiser with respect to the subject matter set forth.