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November 23, 2008, 05:27 am


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Affiliate Agreement
TO JOIN THIS PROGRAM, YOU MUST AGREE TO THE TERMS OF THIS AGREEMENT, OUR PRIVACY POLICY AND ANTI-SPAM POLICY. PLEASE READ THESE AGREEMENTS CAREFULLY. BY CLICKING ON THE ACCEPT BUTTON, YOU ARE AGREEING TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT, OUR PRIVACY POLICY AND OUR ANTI-SPAM POLICY. This Affiliate Agreement ("Agreement") entered into as of the date set forth below by and between eDepicition, Inc, a Delaware Corporation (.eDepicition, Inc..) and the entity and/or individual whose is joining the eDepicition, Inc. affiliate program (hereinafter referred to as "Affiliate") shall set forth the terms and conditions under which eDepicition, Inc. and Affiliate shall transact business. RECITALS WHEREAS, eDepicition, Inc. provides contact information for persons or entities wishing to purchase certain goods and services (.Leads.) to various companies that are eDepicition, Inc's customers; and WHEREAS, eDepicition, Inc. wishes to expand its ability to provide Leads and Sales by contracting with Affiliate for Affiliate to provide Leads and Sales to eDepicition, Inc. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT SECTION ONE. MARKETING THE LEADS 1.01. Appointment. Subject to the terms and conditions of this Agreement, eDepicition, Inc. hereby appoints Affiliate as a non-exclusive provider of Leads and Sales to eDepicition, Inc. and its Advertisers. Affiliate shall contact entities and individuals in order to obtain information from them as to whether they are interested in purchasing goods and services provided by eDepicition, Inc.'s Advertisers. In order to be a valid Lead, the Lead must be interested in purchasing the goods or services offered and the Lead must contain a minimum requirement of the following information unless eDepicition, Inc. agrees, in writing, to waive all or part of the requirements below: . (a) First Name . (b) Last Name . (c) Physical (non P.O.) Address, State and Zip Code . (d) Valid Telephone Number. A .Valid Telephone Number. is defined as one that has ten (10) numeric characters and has passed the error checking scripting in the eDepicition, Inc. websites that require the area code to match that of one that resides in the state provided by submitter in form data capture. . (e) Valid Email Address. A. Valid Email Address. is defined as an email address that is active and current as provided to the form data submitter in terms of both syntax and validity (i.e. johndoe@anything.com), other authentic TLD (top level domain) or one of verification of a governing body in a country other than the United States. . (f) An IP address that directly relates to the email address and/or computer of the submitter of the form data. . (g) The Lead must be submitted by and relate to a United States resident. eDepicition, Inc. reserves the right to require additional information from Affiliate in order to have the Lead qualify as a valid Lead on a case by case basis. The Leads will be provided to eDepicition, Inc. in the format as reasonably set forth by eDepicition, Inc., in its sole discretion. Any Lead that does not meet the above criteria and any other criteria agreed to or required by eDepicition, Inc., will result in the Lead or Sale being immediately rejected by eDepicition, Inc. and forfeiture of any compensation for said Lead or Sale. 1.02. Approval of Marketing Materials. Affiliate shall only use those marketing and promotional materials as provided and approved by eDepicition, Inc. Affiliate shall not use any of its own marketing or promotional materials to solicit Leads under this Agreement. Affiliate shall not make any changes to the marketing and promotional materials provided by eDepicition, Inc. without eDepicition, Inc.'s prior written approval. Affiliate shall use only those marketing and promotional materials that comply with all Unites States, state, local and any other applicable laws. 1.03. Acceptable Leads. Affiliate shall market for Leads, if by e-mail; only by using opt in e-mail addresses for persons that have specifically given permission to be sent e-mails by Affiliate. All opt-in email recipients must be verified with an authentic time, date and IP stamp of the recipient that matches the current email address that has been used by the Affiliate. Affiliate shall not use .spam. Or fax transmissions to obtain Leads. Spam includes, but is not limited to, any email that is sent by Affiliate that does not include an authentic time, date and IP stamp which is in direct relation to the email address used by Affiliate to solicit Leads. Upon request by eDepicition, Inc., Affiliate must, within forty-eight (48) hours provide eDepicition, Inc. with its opt in email list plus any other related information in order for eDepicition, Inc. to verify Affiliate's compliance with the terms and conditions of this Agreement. Any failure to provide this information, or any other information as set forth in this Agreement, shall constitute a Default under section 3.02 of this Agreement. 1.04. Affiliates. The relationship of eDepicition, Inc. and Affiliate is that of independent contractors. Neither Affiliate nor Affiliate's employees, consultants, contractors or agents are agents, employees, partners or joint ventures of eDepicition, Inc., nor do they have any authority to bind eDepicition, Inc. by contract or otherwise to any obligation. They will not represent to the contrary, either expressly, implicitly, by appearance or otherwise. 1.05. Compliance With Laws. Affiliate will comply with all applicable international, national, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Leads. 1.06. Affiliate Covenants. Affiliate will: (i) conduct business in a manner that reflects favorably at all times on the Leads and the good name, good will and reputation of eDepicition, Inc.; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to eDepicition, Inc., the Leads or the public; (iii) make no false or misleading representations with regard to eDepicition, Inc. or the Leads; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to eDepicition, Inc. or the Leads; (v) promote proper use of Leads, (v) not transmit any .spam. (unsolicited commercial email or unsolicited bulk email) and (vi) will not use any incentive to provoke or induce any Lead into submitting the information as set forth in section 1.01 whether thru sweepstakes, cash prizes, or awards of any kind. SECTION TWO. PAYEMENT OF FEES 2.01. Fees. eDepicition, Inc. shall pay Affiliate a fee per lead as set forth on the attached Exhibit A and in the Member Agreement. Nothing in this Agreement shall obligate eDepicition, Inc. to buy any particular number of Leads or any Leads at all from Affiliate. eDepicition, Inc. and Affiliate shall negotiate on a case by case basis what, if any, Leads eDepicition, Inc. shall purchase. Affiliate shall not be paid for any duplicate leads. 2.02. Setoff Rights, Security Interests. eDepicition, Inc. shall have the right of setoff against any funds credited to or owing from eDepiction, Inc. to Affiliate for any obligation of Affiliate to eDepicition, Inc., including, without limitation, obligations of Affiliate under this Agreement. This right of setoff may be exercised by eDepicition, Inc. at any time and without notice to Affiliate whether or not the obligations of Affiliate to eDepicition, Inc. are then due. As security for all existing and future obligations of Affiliate to eDepicition, Inc., Affiliate hereby grants to eDepicition, Inc. a security interest in all money, instruments and other property of Affiliate that may now or hereafter be held by eDepiction, Inc., all deposit accounts of Affiliate now or hereafter arising, all rights and interests of Affiliate under this Agreement, and all rights of Affiliate to receive compensation hereunder. 2.03. Market Pricing. eDepicition, Inc. may, as required by client and/or market conditions, adjust Affiliate compensation amounts, but only with 2 weeks prior notice to Affiliate, either via email or other means of transmission. SECTION THREE. TERM AND TERMINATION 3.01. Term. The initial term of this Agreement shall be for a period of one (1) year, commencing on the date first set forth below. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement. 3.02. Default. Either party shall have the right to terminate this Agreement at any time if: (a) the other party breaches any of the provisions of this Agreement and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching party; or (b) the other party (i) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; (ii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment or assignment or composition for the benefit of creditors. 3.03. Failure to Comply with Rules. eDepicition, Inc. may immediately terminate this Agreement for any material default knowingly or intentionally caused by Affiliate with respect to its obligations to comply with eDepicition, Inc.'s policies or rules if eDepicition, Inc. reasonably determines that the default is of such a serious nature that an opportunity to cure such default is not practical or warranted. eDepicition, Inc. may, at its sole discretion, effect such termination upon delivery of written notice to Affiliate without regard to any provisions for cure of default. 3.04. Regulatory Demand. If any federal or state regulatory agency having jurisdiction over the subject matter of this Agreement makes a demand that either eDepicition, Inc. or any of its vendors discontinue or substantially this program, either party in its sole discretion may terminate this Agreement upon written notice to the other, in which case neither party shall be deemed to be in default by reason of such termination. 3.05. Termination by eDepicition, Inc. eDepicition, Inc. may cancel this Agreement for any reason, or not reason at all, by providing Affiliate with seven (7) days notice. 3.06. Effect of Termination. The compensation to Affiliate set forth in section 2.01 and described in Exhibit A will be paid to Affiliate, however, Affiliate shall not be entitled to any compensation under this Agreement if (a) Affiliate breaches its obligations under sections1.02, 1.03, 1.05, 1.06, 4.01, 4.02, 4.03, 4.05, 4.07 or 4.08 or (b) this Agreement is terminated based upon sections 3.02, 3.03 or 3.04. SECTION FOUR - OBLIGATIONS. 4.01. Confidential Information. The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Leads and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the "Confidential Information") all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party's obligations under this section or by breach of a third party's confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party's confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party's Confidential Information; (ii) not use the disclosing party's Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party's express prior written consent; (iii) disclose the disclosing party's Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party's internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure. The receiving party shall promptly notify the disclosing party of any unauthorized disclosure or use of the Confidential Information. The receiving party shall cooperate and assist the disclosing party in preventing or remedying any such unauthorized use or disclosure. 4.02. Indemnification. Affiliate agrees to indemnify, defend, and hold harmless eDepicition, Inc., its employees, members, directors, managers, officers or agents from and against any loss, liability, damage, penalty or expense (including attorneys' fees, expert witness fees and cost of defense) they may suffer or incur as a result of (i) any failure by Affiliate or any employee, agent or affiliate of Affiliate to comply with the terms of this Agreement; (ii) any warranty or representation made by Affiliate being false or misleading; (iii) any representation or warranty made by Affiliate or any employee or agent of Affiliate to any third person other than as specifically authorized by this Agreement, (iv) the manner or method in which Affiliate generates Leads or otherwise performs its services pursuant to this Agreement, (v) negligence of Affiliate or its subcontractors, agents or employees, or (vi) any alleged or actual violations by Affiliate or its subcontractors, employees or agents of any governmental laws, regulations or rules. 4.03. Non-Solicitation. (a) During the period that this Agreement is in effect and for the two-year period immediately following termination of this Agreement, Affiliate shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of, or consultant to, eDepicition, Inc. or its subsidiaries to leave the employ of, or consultancy to, eDepicition, Inc. or its subsidiaries, or in any way interfere with the relationship between eDepicition, Inc. or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, eDepicition, Inc. or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of a eDepicition, Inc. officer (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or service any customer, supplier, licensee, licensor, consultant, contractor or other business relation of eDepicition, Inc. or its respective subsidiaries in order to induce or attempt to induce such person to cease doing business with eDepicition, Inc. or its subsidiaries, or in any way interfere with the relationship between any such customer, supplier, licensee, licensor, consultant, contractor or other business relation and eDepicition, Inc. or its subsidiaries (including, without limitation, making any negative statements or communications about eDepicition, Inc. or its subsidiaries); or (iv) call on, solicit, or take away or attempt to call on, solicit, or take away any of eDepicition, Inc.'s customers and vendors on whom Affiliate called or with whom Affiliate became acquainted during his/her/its contractual relationship with eDepicition, Inc., either on its behalf or that of other person, firm, or corporation. (b) If, at the time of enforcement of the covenants contained in this section above (the .Protective Covenants.), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed to revise the Protective Covenants to cover the maximum duration, scope and area permitted by law. Affiliate agrees that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of eDepicition, Inc.'s businesses and agrees not to challenge the validity or enforceability of the Protective Covenants. (c) If Affiliate breaches, or threatens to commit a breach of, any of the Protective Covenants, eDepicition, Inc. and its subsidiaries shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to eDepicition, Inc. or its subsidiaries at law or in equity: (i) the right and remedy to have the Protective Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of the Protective Covenants would cause irreparable injury to eDepicition, Inc. and its subsidiaries and that money damages would not provide an adequate remedy to eDepicition, Inc. or its subsidiaries; and (ii) the right and remedy to require Affiliate to account for and pay over to eDepicition, Inc. or its subsidiaries any profits, monies or other benefits derived or received by Affiliate as the result of any transactions constituting a breach of the Protective Covenants. 4.04. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LEADS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL eDepicition, Inc. TOTAL LIABILITY TO AFFILIATE OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY AFFILIATE UNDER THIS AGREEMENT TO A MAXIMUM OF TEN THOUSAND DOLLARS ($10,000.00) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE. 4.05. Taxes. Affiliate shall pay, indemnify and hold eDepicition, Inc. harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on eDepicition, Inc.' income, and (ii) all government permit fees, customs fees and similar fees which eDepicition, Inc. may incur with respect to this Agreement. Such taxes, fees and duties paid by Affiliate shall not be considered a part of, a deduction from, or an offset against, payments due to eDepicition, Inc. hereunder. 4.06. Affiliate represents and warrants to eDepicition, Inc. as follows: (a) Affiliate has the full power and authority to execute, deliver and perform this Agreement. This Agreement is valid, binding and enforceable against Affiliate in accordance with its terms and no provision requiring Affiliate's performance is in conflict with Affiliate's obligations under any charter or any other agreement (of whatever form or subject) to which Affiliate is a party or by which it is bound. (b) If other than a sole proprietorship, Affiliate is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Affiliate's business make such authorization necessary or required. (c) Except as otherwise disclosed in writing by Affiliate to eDepicition, Inc. on or before the effectiveness of this Agreement, neither Affiliate nor any principal has been subject to any (i) criminal conviction (excluding traffic misdemeanors or other petty offenses); (ii) bankruptcy filings; (iii) Internal Revenue Service liens; (iv) federal or state regulatory administrative or enforcement proceedings; or (v) restraining order, decree, injunction or judgment in any proceeding or lawsuit alleging fraud or deceptive practices. 4.07. Trademarks. Subject to the limitations in this Agreement, eDepicition, Inc. grants Affiliate the nonexclusive right and license to use eDepicition, Inc.'s trademarks (the "Trademarks") during the term of this Agreement solely in conjunction with the marketing, promotion and resale of the Leads. eDepicition, Inc. grants no rights in the Trademarks or in any other trademark, trade name, service mark, business name or goodwill of eDepicition, Inc. except as licensed hereunder or by separate written agreement of the parties. Affiliate agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to eDepicition, Inc. (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). During the term of this Agreement, Affiliate agrees not to use any trademark, trade name or product name confusingly similar to a trademark, trade name or product name of eDepicition, Inc., except for the Trademarks expressly licensed hereunder. Upon expiration or termination of this Agreement, Affiliate will immediately cease all display, advertising and use of all of the Trademarks and will not thereafter use, advertise or display any trademark, trade name or product designation which is, or any part of which is, similar to or confusing with any Trademark or with any trademark, trade name or product designation associated with eDepicition, Inc. or any of eDepiction, Ink.s products and services. 4.08. Intellectual Property. "Intellectual Property" means all of the following owned by a party: (I) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as "Intellectual Property Rights." Other than the express licenses granted by this Agreement, eDepicition, Inc. grants no right or license to Affiliate by implication, estoppel or otherwise to any Intellectual Property Rights of eDepicition, Inc.. Each party shall retain all ownership rights, title, and interest in and to its own products and services and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. eDepicition, Inc. (and not Affiliate) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for any Intellectual Property Rights incorporated therein. Affiliate will cooperate with eDepicition, Inc. in pursuing such protection, including without limitation executing and delivering to eDepicition, Inc. such instruments as may be required to register or perfect eDepicition, Inc.' interests in any Intellectual Property Rights and any assignments thereof. Affiliate shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from eDepicition, Inc. in connection with this Agreement. 4.09. Ownership of the Leads. Both parties acknowledge that eDepicition, Inc. owns any and all rights in the Leads and all information contained therein submitted by Affiliate to eDepicition, Inc. Affiliate will provide all reasonable assistance to eDepicition, Inc. to perfect, protect and transfer eDepicition, Inc's right, title and interest in the Leads and all information contained therein. eDepicition, Inc. may in any fashion it determines, in its sole discretion, use the information in the Leads and all information contained therein. Affiliate warrants that it will not sell or provide the Leads or any of the information contained therein to any other party. Affiliate shall have no right to compensation for the Leads other than as set forth in this Agreement. SECTION FIVE - GENERAL PROVISIONS 5.01. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions. 5.02. Drafting. No provision of this Agreement shall be construed against any party merely because that party or counsel drafted or revised the provision in question. All parties have been advised and have had an opportunity to consult with legal counsel of their choosing regarding the force and effect of the terms set forth herein. This Agreement shall be deemed to be jointly prepared by the parties and therefore any ambiguity or uncertainty shall be interpreted accordingly. 5.03 Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach. 5.04. Assignment. Neither party shall assign, delegate, subcontract, license, franchise, or in any manner attempt to extend to any third party any right or obligation under this Agreement except as otherwise permitted herein without the prior written consent of the other party; provided, however, eDepicition, Inc. may assign this Agreement and its rights hereunder to a purchaser of all or substantially all of its assets or stock. 5.05. Amendments. Except as otherwise provided in this Agreement, no provision of this Agreement may be amended, modified or waived except by a written agreement signed by both parties. 5.06. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and given by personal delivery, telecopy (confirmed by a mailed copy), or first class mail, postage prepaid, sent to the addresses set forth herein. 5.07. Section Headings: The section headings contained in this Agreement are for convenient reference only, and shall not in any way affect the meaning or interpretation of this Agreement. 5.08. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. 5.09. Entire Agreement; Binding Effect. This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement. 5.10. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware (irrespective of its choice of law principles). The parties hereby agree that any suit to enforce any provision of this Agreement or arising out of or based upon this Agreement or the business relationship between the parties hereto shall be brought in the United States District Court for the Central District of Delaware or the Superior Court in and for the County of Orange. Each party hereby agrees that such courts shall have exclusive personal jurisdiction and venue with respect to such party and each party hereby submits to the exclusive personal jurisdiction and venue of such courts. 5.11. Attorney.s Fees. Should suit be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including expert witness fees and fees on any appeal 5.12. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and sections 2.02, 4.01, 4.02, 4.03, 4.04, 4.05, 5.07 and 5.08 shall survive termination of this Agreement. Exhibit A Payment Terms. eDepicition, Inc. will track the number of Valid Leads generated and processed by Member/Associate and provide a username and password to Member/Associate so that Member/Associate has web access to the generation reports. Member/Associate will be paid bi-monthly based on the number of Valid Leads generated and processed for eDepicition, Inc. by Member/Associate in that given period. eDepicition, Inc. agrees to pay Associate bi-monthly for each and every month that the Member/Associate remains an active member in good standing pursuant to these Terms and Conditions. For purposes of account reconciliation, eDepicition, Inc. will delay bi-monthly payments to Member/Associate for 2 weeks upon initial sign up. Affiliate will receive first compensation upon completion of week 4 (four) from start date, with the week starting on Sunday and ending on Saturday. Pro-rated start dates apply. Affiliate/Member/Associate will be debited for any and all returns of sales, leads and/or applications that may be returned by its clients for reasons posted in Return Policy. Per campaign compensation tables are posted in your Member Area, and are bound by all terms and conditions of this agreement.
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