SJ Affiliate Publisher Service Agreement

Introduction

This Agreement ("Agreement") is made by and agreed to between Sowell Jewelry(“SJ”), located at PO Box 12181, Costa Mesa, CA 92627, USA, and you (“You"). A "Performance Marketing Program" ("Program") is where a person, entity, affiliate or its agent, operating "Web site(s)" (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another's Web site or Web site content ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent) through an Internet connection ("Link") to a Web site or Web site content operated by SJ ("Advertiser") from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.

1. Participation in Programs.

(a) Acceptance by Advertiser. During this Agreement You may apply to Advertiser Programs for the opportunity to earn Payouts by promoting Advertisers in accordance with the Advertiser's Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms and this Agreement. An Advertiser's acceptance of You extends only to the entity, or individual, that enters into this Agreement with SJ.

(b) Program Terms. The details of an Advertiser's Program shall be available through the Network Service. Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change any Payout rate upon no less than 7 days written notice through the Network Service with effect from the 8th day (or such later date as specified by Advertiser).

(c) Additional Terms. It is Your obligation to review and to either accept or decline such Agreement when one is presented to You. If accepted by You, compliance with the Agreement, as applicable, is solely Your responsibility. The terms and conditions of the Agreement, as applicable, shall apply only with respect to Your relationship with that particular Advertiser. Nothing contained in a Agreement, as applicable, may conflict with the terms and conditions contained in this Agreement. In the case of such conflict, this Agreement shall control.

(d) Prohibited Uses of Links.

(i) Locations. You may not place Links to an Advertiser's Web site or Web site content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chatrooms, or guestbooks. Publishers using IRC channels, instant messages or similar Internet resources must designate their program as special requiring manual review and acceptance by the Advertiser.

(ii) Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.

(iii) Infringement. None of Your promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), or a third party's proprietary rights.

(e) Updating Links. If Links to Advertiser are not dynamically updated through the Network Service, upon notification You are obligated to update an Advertiser's Links in order to earn Payouts.

(f) Emails. You hereby understand, acknowledge and accept that SJ, SJ systems, SJ partners' systems and/or third party systems may and has/have the right granted by You to send emails and other communications to You on behalf of SJ, and other SJ partners and affiliates, including solicitation and service solicitation emails. You may have the ability to change some of Your email settings and preferences.

2. Publisher Obligations to SJ.

(a) Accurate, Up-to-Date Information. You agree to provide SJ with accurate information about You and Your promotional methods, and to maintain up-to-date “Account” information (such as contact information, Web sites used, etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as “special”. Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by SJ. SJ reserves the right to define any program as special.

(b) Use of Links. You represent and warrant that all promotional means used by You will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities), and that You will not mislead others. You agree to: (i) use ethical and legal business practices, (ii) comply with the Advertisers' Program terms and this Agreement, (iii) maintain a privacy policy on Your Web site and for any non-Web site based promotional method made available to Visitors, and (iv) designate Your Publisher Account as “special” if You promote an Advertiser(s) by any means other than displaying a Link to the Advertiser on Your Web site. SJ must approve all of Your promotional activities and may deem Your promotional activities inappropriate and a material breach of this Agreement in SJ's sole discretion. Our network quality department reviews publisher conduct and any suspected fraudulent, abusive or otherwise illegal content or activity by You through Your promotional methods, or that is perpetrated through use of the Network Service, is grounds for immediate termination of this Agreement or deactivation of Your Account.

(c) Promotional Methods. You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/ or regulations that govern email marketing and/or communications. You represent and warrant that You will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Your site content /site visit or by downloadable software applications for which You are the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results. Pop up/unders must honor the SJ Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) enduser agreement requirements, (iii) afsrc=1 requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.

(d) Personally Identifiable Information of Visitors. You represent and warrant that You will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow SJ to personally identify Visitors.

(e) Privacy. You must conspicuously post Your privacy policy on Your Web site and otherwise make it available to all Visitors. Your privacy policy must comply with all laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose Your collection and use of Visitor information. You must fully and accurately disclose Your use of third party technology, including SJ's tracking technology, use of cookies and options for discontinuing use of such cookies.

(f) Applicable Codes and Code Maintenance. In order for SJ to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a SJ “Tracking Code” within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format.

(g) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through SJ's negligent or willful conduct or omission). You shall provide SJ with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.

3. Services.

(a) Tracking Transactions and Payouts. SJ shall determine (where possible) actual Payouts that should be credited to Your Account. SJ may, in SJ's sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with Tracking Code, (ii) where there is an error in Advertiser's transmission of Tracking Code data to SJ, and (iii) where SJ is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Payouts.

(b) Charge-backs. SJ may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Charge-back"). Charge-backs may be applied to Your Account at any time, including previous payment cycles.

(c) Access to Tracking and Reporting Tools. SJ shall provide You with access to tracking and reporting tools, and to support services. Tracking detail regarding Visitor Transactions is not available on a real-time basis for the Advertisers and there may be reporting delays regarding Transactions for the Advertisers.

(d) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, SJ shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser's Payout rate and Program terms for the relevant Transaction. On or about the 20th day of each calendar month, SJ will issue to You any positive balance in Your Account for Transactions reported for the previous month, provided Your Account balance.

(e) Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to SJ in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.

4. Proprietary Rights.

(a) Linking to SJ. For SJ's Program that You have been accepted to, SJ is granting to You the right to display and Link to SJ's Web site or Web site content in accordance with SJ's Program terms for the limited purposes of Promoting SJ's Program, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between SJ and Publisher, SJ owns all rights in and to all information regarding the Visitors that You refer to SJ.

(b)Retention of Rights. All proprietary rights of SJ, You, and all goodwill arising as a result of such rights, inure to the benefit of such owner.

(c) No Challenge to SJ’s Proprietary Rights. You acknowledge that You obtain no proprietary rights in SJ's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge SJ's proprietary rights.

(d) Data Ownership. You understand that all personally identifiable information, if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived from such data is the sole and exclusive property of SJ and is considered SJ's Confidential Information pursuant to this Agreement. SJ, in their sole discretion, shall have the right to use, market and re-market any Visitors and/or data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.


5. Term, Termination, Deactivation and Notices.

(a) Term. This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information on the SJ affiliate service Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days’ notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated and/or Payouts may be withheld during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new Publisher Service Agreement with SJ, and any attempt to do so shall be null and void.

(b) Termination by SJ. SJ may terminate You, one of Your Web sites, or Your ability to use a promotional method, from SJ's Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, SJ may terminate You from SJ's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring SJ's trademarks, trade names, and/or service marks, or for Your material breach of SJ's Program terms or of this Agreement, and may result in Charge-back of one or more Payouts. SJ may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 60 day period; (iii) You maintain a negative balance in Your Account; (iv) You begin proceedings to challenge SJ's proprietary rights. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.

(d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.

(e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement.

(f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by SJ to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to SJ within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.


8. Miscellaneous.

(a) Choice of Law/Attorneys' Fees. This Agreement is governed by the laws of the State of California (USA), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in Los Angeles, California. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys’ fees and costs. SJ controls and operates its Web site from its offices in the USA and access or use where illegal is prohibited.

(b) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.

(c) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.

(d) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by SJ (1) due to operation of law, or (2) to an entity that acquires substantially all of SJ's assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. SJ may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.

(e)Tax Status and Obligations. SJ is not obligated to and shall not provide You with tax and/or legal advice. SJ undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements.

(f) Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties. No interlineations to this Agreement shall be binding unless initialed by both parties. Notwithstanding the foregoing, SJ shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.

IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.