PEANUT LABS PUBLISHER AGREEMENT
IMPORTANT. PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR PARTICIPATION IN PEANUT LABS’ REVENUE ENGINE PROGRAM AND YOUR USE OF THE PRODUCTS AND SERVICES OFFERED BY PEANUTS LAB. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT REGISTER TO USE THE PEANUT LABS REVENUE ENGINE.

This Peanut Labs Publisher Agreement (the "Agreement") is made by and between Peanut Labs, a Massachusetts corporation ("Peanut Labs"), and the "Publisher", Publisher details are same as in the form above.

The Effective Date of this Agreement is 11-Feb, 2007.

WHEREAS, Peanut Labs is in the business of providing a program for Revenue Generation by Publishers of Websites; and

WHEREAS, Publisher desires to participate in the Revenue Generation program offered by Peanut Labs.

NOW, THEREFORE, for good and valuable consideration, the sufficiency of which the parties acknowledge, the parties agree as follows:

1. Definitions.

"Agreement" means this Peanut Labs Publisher Agreement.

"Completed MRS" means a Market Research Survey completed by an End-User and submitted to a Sponsor.

"Completed Referral" means a Referral completed by an End-User and submitted to a Sponsor.

"End-User" means an end user, customer, member of or unique visitor to Publisher’s Website(s).

"iFrame" means an Inline Frame.

"Incentive System" means a reward system within a Publisher’s Website to encourage frequent End-User participation in Referrals and Market Research Surveys.

"Market Research Survey" or "MRS" means a survey created by a Sponsor for the purpose of conducting market research among targeted end-users.

"Offer(s)" means an invitation to participate in a Market Research Survey or a Referral.

"Offers Page" means a page within Publisher’s Website(s) where Offers are served to End-Users via the Peanut Labs iFrame.

"Online Reporting Panel" means the private webpage that Publisher may access for the purpose of monitoring data related to Publisher’s participation in the Revenue Engine.

"Peanut Labs iFrame" means an iFrame by which End-Users connect to Peanut Labs’ servers and through which Peanut Labs serves content.

"Profile Survey" means a Peanut Labs survey that End-Users must complete prior to receiving Offers.

"Publisher," "you" or "your" means the company identified as the Publisher at the beginning of this Agreement, and its affiliates, subsidiaries, parent companies, agents and representatives.

"Publisher Guide" means the Peanut Labs Publisher Implementation Guide, or any successor document, found in the Publisher’s area of the Peanut Labs website, and as it may be updated from time to time.

"Publisher’s Websites" means those websites owned, maintained or controlled by the Publisher and identified by the Publisher when registering to participate in the Peanut Labs Revenue Engine program.

"Referral" means a special offer from a Peanut Labs Sponsor that links an End-User to a survey, website or other content provided by that Sponsor.

"Revenue Engine" means the program operated by Peanut Labs and subscribed to by Publisher under this Agreement.

"Sponsor" means an advertiser, company, market research company or other entity sponsoring Offers to End-Users via Peanut Labs’ iFrame.

"Sponsor Requirements" means any and all requirements of a Sponsor for determining that a Market Research Survey or Referral has been completed by an End-User and submitted to the Sponsor, thereby triggering a payment to Publisher.

2. Publisher Obligations.
1. Compliance. Publisher agrees to comply with this Agreement, the Publisher Guide and any and all specifications provided by Peanut Labs to ensure proper delivery, display and functioning of the Peanut Labs iFrame.
2. Incentive System. Publisher agrees to establish and maintain an Incentive System, at its sole expense and subject to the approval of Peanut Labs. Establishing, operating and maintaining the Incentive System is solely the responsibility of the Publisher
3. Offers Page. Publisher agrees to establish and maintain an Offers Page that includes the Peanut Labs iFrame. Establishing and maintaining the Offers Page is solely the responsibility of the Publisher and shall be done at the Publisher’s own expense.
4. Content. Publisher agrees that Peanut Labs and/or its Sponsors may serve content (including without limitation surveys, text, pictures, graphics and/or video content of any kind, whether created by Peanut Labs, Sponsors and /or third parties) in connection with Publisher’s Websites.
5. Publisher’s Websites. Publisher is solely responsible for operating and maintaining Publisher’s Websites, including implementation of the specifications required to enable Peanut Labs and its Sponsors to (a) serve content through the Peanut Labs iFrame, and (b) confirm to Publisher when an End-User has completed and submitted a Market Research Survey or Referral, at Publisher’s own expense.
6. Payment Information. To ensure proper payment, Publisher is solely responsible, on an ongoing basis, for providing Peanut Labs with accurate contact and payment information, including a valid U.S. tax identification number and fully completed Form W-9 (or the equivalent for non-U.S. based companies).
7. Communications Regarding Offers and Content. Publisher agrees to communicate solely and directly with Peanut Lab, and not with any Sponsors, regarding any matter related to this Agreement, including without limitation Sponsor Requirements, market research surveys, offers and payments made under this Agreement.
3. Peanut Labs’ Obligations.
1. Revenue Engine. Peanut Labs will permit Publisher to participate in Peanut Labs’ Revenue Engine by serving Profile Surveys, Referrals, Market Research Surveys and other content to Publisher’s End-Users via the Peanut Labs iFrame on the Publisher’s Website.
2. Publisher Guide. Peanut Labs agrees to provide Publisher with a Publisher Guide and any and all other specifications Publisher is required to implement in order to comply with this Agreement.
3. Payments. Peanut Labs will pay Publisher a set fee for each Completed MRS and Completed Referral that meets Sponsor Requirements in accord with the payment schedule set forth below. Publisher acknowledges and agrees that Publisher becomes eligible for a payment under this Agreement only if and when (a) a Sponsor confirms that an MRS or Referral submitted to the Sponsor meets Sponsor Requirements, and (b) that Sponsor makes a payment to Peanut Labs for that Completed MRS or Completed Referral.
1. Payment Schedule. Payments will be made by Peanut Labs to Publisher at the address provided by Publisher and in the amounts set forth below corresponding to the Triggering Event set forth below. All payments will be made on or before the 15th day of the month following the month in which Peanut Labs receives payment from the Sponsor for the Triggering Event.

Peanut Labs will have no obligation to make any payment to Publisher prior to receiving from Publisher all information necessary to make such a payment, including without limitation a valid U.S. tax identification number and fully completed Form W-9, where applicable.

TRIGGERING EVENT AMOUNT OF PAYMENT
Completed Market Research Survey $3.00 per Completed Market Research Survey
Completed Referral Between $1.00 and $100.00 per Completed Referral.

2. Sole Discretion / No Liability for Sponsor Determinations. The determination of whether an MRS or Referral submitted to a Sponsor meets Sponsor Requirements is solely at the discretion of that Sponsor. Peanut Labs will have no liability to the Publisher for (a) decisions by a Sponsor that any submitted MRS(s) or Referral(s) do not meet Sponsor Requirements; or (b) any discrepancy(ies) between the number of Completed MRSs and Completed Referrals claimed by Publisher and the number of MRSs and Referrals that Sponsor(s) identify as meeting Sponsor Requirements. If Publisher disputes the accuracy of a Sponsor’s count of Completed MRSs or Completed Referrals (or both), that dispute will be resolved by Peanut Labs in its sole discretion, and Peanut Labs will have no liability to Publisher for its decision..
3. Confirmation of Completed MRS(s) and Completed Referral(s). Peanut Labs will provide Publisher with specifications for a script that will provide Publisher with initial confirmation of Completed MRS(s) and Completed Referral(s). The initial confirmation of a Completed MRS or Completed Referral is merely a tracking mechanism and does not trigger an obligation for payment by Peanut Labs to Publisher.
4. Reversals. Publisher agrees that Peanut Labs may reduce the amount otherwise due to be paid to a Publisher under this Section 3.3 if, at any time after making a payment under Section 3.3, Peanut Labs is notified by a Sponsor that a Completed MRS or Completed Referral that resulted in all or a part of such payment did not meet the Sponsor Requirements. The amount of the payment reduction associated with a failure to meet Sponsor Requirements shall be equal to the amount originally paid to Publisher for the Completed MRS(s) or Completed Referral(s).
5. Disputes. If Publisher disputes any payment under this Agreement, Publisher must notify Peanut Labs within 30 (thirty) days of any such payment and failure to do so will result in the waiver by Publisher of any claims related to such disputed payment(s).
4. Online Reporting Panel. Within five business days of the execution of this Agreement by both parties, Peanut Labs will provide Publisher with a URL and password permitting Publisher to access Peanut Labs’ Online Reporting Panel. Peanut Labs will determine what data to provide through the Online Reporting Panel at its sole discretion and may change the content of the Online Reporting Panel at any time. Peanut Labs grants Publisher a limited license to access and make use of the Online Reporting Panel and its content for the sole purpose of monitoring Publisher’s participation in the Revenue Engine. Neither the Online Reporting Panel nor any other portion of the Peanut Labs website may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose other than monitoring Publisher’s participation in the Revenue Engine without express written consent of Peanut Labs.
5. Prohibitions on Publisher Conduct.
1. Prohibition against the Fraudulent Use of Revenue Engine. Publisher shall not, and shall not directly or indirectly encourage or knowingly permit any third party, including without limitation End-Users, to generate queries, complete Profile Surveys, complete Market Research Surveys, or complete Referrals through any automated, fraudulent or invalid means. Fraudulent or invalid means by a third party include without limitation knowingly providing incomplete or false information while completing a Profile Survey, Market Research Survey or Referral.
2. Prohibition against the Violation of Ownership Rights. Publisher shall not, and shall not directly or indirectly encourage or knowingly permit any third party to (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code from any Peanut Labs services, software or documentation; (b) alter, modify, remove or obscure content served by Peanut Labs or Sponsors in any way, including without limitation legal or proprietary rights notices associated with such content; or (c) create or attempt to create a similar service to the Revenue Engine through any proprietary or confidential information, access to or use of the Revenue Engine provided by Peanut Labs.
3. Material Breach. Publisher agrees that violation of either Section 4.1 or 4.2 constitutes a material breach of this Agreement and that Peanut Labs may immediately terminate this Agreement and pursue any and all available equitable or legal remedies based on such conduct.
6. Disclaimers.
1. No Warranty. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, PEANUT LABS MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ADVERTISEMENTS, LINKS, REFERRALS, MARKET RESEARCH SURVEYS, CONTENT PROVIDED BY PEANUT LABS, CONTENT PROVIDED BY SPONSORS, DATA PROVIDED IN THE ONLINE REPORTING PANEL, OFFERS, PEANUT LABS iFRAMES, THE PUBLISHER’S GUIDE AND /OR ANY TECHNICAL SPECIFICATIONS SUPPLIED BY PEANUT LABS OR ANY PERSON OR ENTITY ACTING ON ITS BEHALF. PEANUT LABS EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF NONINFRINGEMENT AND WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PEANUT LABS SHALL HAVE NO LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO PUBLISHER’S DISPLAY OF OFFERS OR ANY OTHER CONTENT SERVED BY PEANUT LABS.
2. No Guarantee. Peanut Labs makes no representation, warranty or guarantee regarding the number of Completed MRS or Completed Referrals that may be generated under this Agreement. Peanut Labs further makes no representation, warranty or guarantee regarding the number, frequency or dollar amount of payment(s), if any, to be made to the Publisher under this Agreement.
3. No Responsibility for Publisher’s Website(s). Peanut Labs is not responsible for Publisher’s Website(s), including without limitation the receipt of queries from your site(s) or the transmission of data between your site(s) and Peanut Labs’ server(s). Peanut Labs has no obligation to provide any information to you in the event that the Peanut Labs iFrame is not functioning or being displayed properly or that Referrals or Market Research Surveys are not being completed.
7. Limitation of Liability. Except for claims based on the alleged breach by Peanut Labs of a representation or warranty contained in Section 8, Publisher is not entitled to receive damages from Peanut Labs for any cause relating to this Agreement, including without limitation any reason relating to the Revenue Engine or any other services provided by Peanut Labs under this Agreement, or any content or services provided by, or action taken by, any third party, including Sponsors, in connection with this Agreement. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Peanut Labs or with the distribution, operation, development, or performance of the Revenue Engine or any other services or obligations performed under this Agreement.

IN NO EVENT SHALL PEANUT LABS BE LIABLE TO PUBLISHER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF PUBLISHER’S USE OF, OR INABILITY TO USE, ANY CONTENT, SERVICE, OFFER, DOCUMENTATION, INSTRUCTIONS, TECHNICAL SPECIFICATIONS AND / OR LINKS PROVIDED BY PEANUT LABS OR A SPONSOR UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL PEANUT LABS BE LIABLE TO PUBLISHER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF PUBLISHER’S USE OF, INABILITY TO USE, CONNECTION WITH OR LINKING TO ANY PEANUT LABS OR SPONSOR SERVER, INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL PEANUT LABS BE LIABLE TO PUBLISHER FOR ANY DAMAGES WHATSOEVER ARISING OUT OF DECISIONS MADE BY OR CONDUCT OF A SPONSOR, INCLUDING WITHOUT LIMITATION THE FAILURE OF A SPONSOR TO GIVE CREDIT FOR COMPLETED MRS(S) OR COMPLETED REFERRAL(S), AND INCLUDING WITHOUT LIMITATION ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING THE FOREGOING, PEANUT LABS’ MAXIMUM AGGREGATE LIABILITY TO PUBLISHER FOR A CLAIM RELATED IN ANY WAY TO AND PERMITTED BY THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION CLAIMS ALLEGING BREACH OF SECTION 8 BY PEANUT LABS, WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY PEANUT LABS TO PUBLISHER IN THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF SUCH CLAIM.

8. Indemnification. Publisher hereby agrees to indemnify and hold Peanut Labs harmless from and against any and all third-party claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements resulting from such third-party claims or from regulatory actions, including defense costs, fines, expenses and reasonable attorneys’ fees arising from, or in any manner relating to (1) the breach of any of the obligations which Publisher is to perform pursuant to this Agreement; (2) any unauthorized or unlawful action taken by the Publisher; (3) any negligent acts or omissions, whether inadvertent or intentional on behalf of the Publisher; (4) any willful misconduct of Publisher or any of its agents in connection with this Agreement; and /or (5) any claim by an End-User related in any way to this Agreement, including without limitation claims relating in any way to Offers, Market Research Surveys, Referrals, Publisher’s Incentive System, and End-User’s use of, inability to use, connection with or linking to any Peanut Labs server,. The obligations of this provision shall include any legal or other expenses reasonably incurred by Peanut Labs in connection with investigating any claim against it, defending any action and any amounts paid in settlement or compromise.

Peanut Labs hereby agrees to indemnify and hold Publisher harmless from and against any and all third-party claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements resulting from such third-party claims or from regulatory actions, including defense costs, fines, expenses and reasonable attorneys’ fees arising from, or in any manner relating to (1) the breach of any of the obligations which Peanut Labs is to perform pursuant to this Agreement; (2) any unauthorized or unlawful action taken by Peanut Labs; (3) any negligent acts or omissions, whether inadvertent or intentional on behalf of Peanut Labs; and/ or (4) any willful misconduct of Peanut Labs or any of its agents in connection with this Agreement. The obligations of this provision shall include any legal or other expenses reasonably incurred by Publisher in connection with investigating any claim against it, defending any action and any amounts paid in settlement or compromise.

The indemnified party agrees to immediately notify the indemnifying party in writing of any written claims or demands against the indemnified party for which the indemnified party seeks indemnification from the indemnifying party under this Section 8 and the indemnifying party shall solely direct the defense of such claims. The indemnified party will cooperate with indemnifying party in connection with such claims; provided, that the indemnified party will be entitled to participate through counsel of its own choice and at its own expense. The indemnifying party will not settle any such claim or action without the prior written consent of indemnified party (which consent will not be unreasonably withheld or delayed). The indemnifying party agrees to accept liability for the indemnified party’s defense or settlement of any such claims or demands if the indemnifying party fails to timely assume the defense of such claim or demand after being offered in writing the opportunity to do so.

9. Representation and Warranties. Each party to this Agreement represents and warrants to the other that: (1) such party has the power to enter into and perform this Agreement; and this Agreement's execution has been duly authorized by all necessary corporate action; (2) the individual completing this online agreement has the authority to bind the Publisher to this Agreement; (3) this Agreement constitutes a valid and binding obligation on each party, enforceable in accordance with its terms; (4) no suit, action, arbitration, or legal, administrative, or other proceeding or governmental investigation is pending or threatened against or affecting the parties, their business or properties, their financial or other condition, or the transactions contemplated under this Agreement; and (5) neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by it would constitute a default or violation of the parties' articles of incorporation, bylaws, or any license, lease, franchise, mortgage, instrument, or other agreement.

Publisher further represents and warrants to Peanut Labs that (a) it is either the owner of the Publisher’s Website(s) or is legally authorized to act on behalf of the owners of Publisher’s Website(s); (b) Publisher has complied and will continue to comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, without limitation, the CAN-SPAM Act and any relevant data protection or privacy laws, related to Publisher’s conduct under this Agreement and / or its use of services provided by Peanut Labs under this Agreement; and (c) during the Term of this Agreement, Publisher shall not knowingly distribute on the Publisher’s Website(s) any content that: (i) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) violates any law, statute, ordinance, or regulation; (iii) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (iv) is obscene, pornographic, or indecent.

Peanut Labs further represents and warrants to Publisher that (a) it is either the owner of the content served to Publisher’s Website(s) via Peanut Labs’ servers or is legally authorized to act on behalf of the owners of such content; (b) Peanut Labs has complied and will continue to comply with all applicable federal, state, and local statutes, ordinances, rules, and regulations, including, without limitation, the CAN-SPAM Act and any relevant data protection or privacy laws, related to Peanut Labs’ conduct under this Agreement; and (c) during the Term of this Agreement, Peanut Labs shall not knowingly serve any content that: (i) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) violates any law, statute, ordinance, or regulation; (iii) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; or (iv) is obscene, pornographic, or indecent.

10. Term and Termination. This Agreement shall remain in effect until terminated as set forth in this Section.
1. Initial Term. The initial term of this Agreement shall be one (1) year from the Effective Date (the "Initial Term") and shall continue month-to-month thereafter. After the Initial Term, either party may terminate this Agreement with a minimum thirty (30) days prior written notice to the other party.
2. Termination for Material Breach. Either party may terminate this Agreement at any time on 30 days' prior written notice to the other party, if that other party materially breaches any term or condition of this Agreement and fails to cure the breach during that 30-day period.
3. Termination for Breach of Prohibitions on Publisher’s Conduct. Peanut Labs may immediately terminate this Agreement without prior notice to Publisher based on Publisher’s breach of either Section 4.1 or Section 4.2 of this Agreement.
4. Termination upon Bankruptcy or Insolvency. Either party may, at its option, terminate this Agreement immediately upon written notice to the other party, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.
5. Termination for Failure of Incentive System. Peanut Labs may terminate this Agreement at any time, upon seven (7) calendar days written notice, if Publisher fails to implement and maintain an Incentive System or if, in Peanut Labs sole discretion, the Incentive System implemented by Publisher is not generating a sufficient number of Completed MRSs and Completed Referrals. .
6. Publisher Obligations upon Termination. Upon the termination or expiration of this Agreement for any reason, Publisher will (i) immediately remove, delete, disable and otherwise make inoperable all iFrames and links connecting Publisher’s Website(s) to Peanut Labs or Sponsors; (ii) and comply with the requirements of Section 12.14 regarding confidential information.
11. Ownership of Intellectual Property. Publisher agrees that Peanut Labs owns all right, title, and interest in and to the Revenue Engine, including without limitation Peanut Labs’ serving technologies, program design, content, websites and the Online Reporting Panel, and that Publisher acquires no rights or title to, interest in or ownership of the Revenue Engine except as expressly set forth in this Agreement. Peanut Labs’ ownership does not extend to matters licensed by Peanut Labs from third parties.
12. Miscellaneous.
1. Notices. All notices under this Agreement shall be given in writing and in one or more of the following ways: (i) by delivery by a commercially recognized overnight carrier; (ii) via electronic mail, or (iii) via facsimile, at the physical address, e-mail address and fax numbers set forth in the signature block of this Agreement. If a party provides notice via either method (ii) or (iii), then such delivery is effective only if receipt of the notice is acknowledged in writing by the party receiving the notice. Notice is effective upon receipt, and notice received after 5 p.m. will be deemed effective on the next business day. Either party may from time to time change its address or other information for notification purposes by giving the other prior written notice of the new address and the date upon which it shall become effective.
2. Relationship. The relationship of the parties under this Agreement is one of independent contractors and no agency, partnership, joint venture, or similar relationship is created hereby. Except as specifically authorized, neither party shall have any authority to assume or create obligations on the other party’s behalf. Neither party shall take any action that has the effect of creating the appearance of its having such authority.
3. Taxes. All taxes and charges of any kind imposed by any national, federal, state, or local government concerning the products, services, or other items covered by this Agreement, or their sale or use, or measured by the gross receipts to Publisher under this Agreement, shall be collected and paid by Publisher, exclusive of franchise taxes and taxes based on Peanut Labs' income, which shall be paid by Peanut Labs. The provisions of this section shall survive the expiration or earlier termination of this Agreement.
4. No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties to this Agreement and their permitted successors and assigns, and no other person or entity, including without limitation End-Users, shall have or acquire any right by virtue of this Agreement.
5. Publicity. Publisher agrees that Peanut Labs may include Publisher’s name, logo and/or URL in lists of representative customers (including website lists), marketing materials, investor or other presentations, financial reports and any materials prepared for Sponsors or potential Sponsors.
6. Waiver. The waiver, modification, or failure to insist by Peanut Labs on any of the provisions of this Agreement shall not void, waive, nor modify any of the other provisions nor be construed as a waiver or relinquishment of Peanut Labs’ right to performance in the future of any such provision.
7. Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void by a court of competent jurisdiction, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable, or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting for such provision another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by law.
8. Prohibition on Assignment. Publisher may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Peanut Labs, which consent may be given or withheld in Peanut Labs’ sole and absolute discretion. Any attempted assignment or delegation in violation of this provision shall be voidable at the sole option of Peanut Labs and shall entitle Peanut Labs to terminate this Agreement. Despite Peanut Labs’ consent, no assignment shall release Publisher, its successors or assigns, of any of its obligations or alter any of its primary obligations to be performed under the Agreement. As used in this provision, "assignment" and "delegation" shall mean any sale, gift, pledge, hypothecation, encumbrance, or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
9. Successors. This Agreement shall inure to the benefit of and be binding on the legal representatives and permitted successors and assigns of the parties.
10. Headings. Headings used herein are for reference purposes only and neither limit nor amplify the terms and conditions herein.
11. Governing Law and Dispute Resolution.
1. Law. This Agreement and any disputes between the parties shall be governed by and construed according to the laws of California as such laws are applied to contracts made and to be performed entirely in California, but without reference to California’s rules regarding conflicts of laws.
2. Obligation to Meet and Confer. Before invoking the binding dispute mechanism set forth below, the parties shall first meet and confer in good faith to resolve any dispute or controversy that may arise between them (a "Dispute"). To begin the meet and confer process, a party shall serve on the other party to this Agreement (a) written notice of the claim, specifying the exact nature of the Dispute, including any amount claimed to be owed under this Agreement, and the provision of the Agreement or other authority for the claim; and (b) a copy of all supporting documents. Within 10 business days after receiving notice of a dispute the responding party and the initiating party will meet to discuss resolution of the claim. Each party must bring at least one person to the negotiation with full authority to resolve the dispute on any terms. The written claim notice and any documents produced by either party, but not the subsequent discussion, shall be admissible in any subsequent proceeding.
3. Mediation. If the parties are unable to resolve a Dispute through the process described in Section 11.11.2, the parties will submit their dispute to mediation prior to proceeding to arbitration. The administrative costs of the mediation, including the mediator’s fee, shall be borne by the parties equally. Otherwise, each party shall be responsible for its own costs and expenses relating to the mediation, including any attorneys’ fees. Disclosures made by either party during the mediation will be treated as confidential and may not be offered as evidence in any subsequent proceeding unless the proceeding is initiated to enforce the terms of an agreement arising from the mediation.
4. Arbitration. If the dispute resolution mechanisms set for the above fail to resolve the dispute, binding arbitration shall be the sole and exclusive remedy for resolution of disputes between the parties. Such dispute shall be submitted for arbitration in San Francisco, California, before a single arbitrator agreed upon by the parties, or, if they are unable to agree, a single arbitrator appointed by American Arbitration Association ("AAA"). Such arbitration shall be governed by the commercial rules of the AAA. The arbitrator's decision will be final and entered into any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and costs in connection with such arbitration.
12. Survival of Certain Provisions. The following will survive any expiration or termination of this Agreement: (i) any accrued rights to payment; (ii) any remedies; (iii) Sections 5, 6, 7 and 8 (including subsections), 10.6, 11, 12.3, 12.5, 12.11 (including subsections), 12.12 and 12.14; (iv) all provisions governing the enforcement and interpretation of surviving provisions; and (v) any other provision expressly stating that it survives the termination of the Agreement.
13. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications with respect hereto, all of which are merged herein. Except as specifically provided for herein, this Agreement may not be altered, amended, or modified except by an instrument in writing signed by a duly authorized representative of each party.
14. Confidentiality. All technical and business information, including, but not limited to, patents, patent applications, trade secrets, know-how, financial statements, business plans, pricing, or source code in whatever form furnished by either party to this Agreement (the "disclosing party") to the other party (the "receiving party") under or in contemplation of this Agreement and, if in tangible form, clearly marked "Proprietary" or "Confidential" or otherwise clear from the subject matter of such information that it is confidential or proprietary and, if provided orally, clearly identified as proprietary or confidential at the time of disclosure by the disclosing party (collectively, "Information") shall remain the property of the disclosing party. Unless the disclosing party otherwise agrees in writing, this Information (a) shall be treated in confidence by the receiving party and used by the receiving party only for the purposes of performing the receiving party's obligations under this Agreement; (b) shall not be reproduced or copied in whole or in part, except as necessary for use as authorized in this Agreement; (c) shall be made available only to those employees of the receiving party who have a need to have access to the Information and have agreed to comply with the terms of this Section; and (d) shall, together with any copies thereof, be returned, be destroyed, or, if in the form of software recorded on an erasable storage medium, be erased when no longer needed by the receiving party to perform its duties under this Agreement or when this Agreement terminates, whichever occurs first. The above conditions do not apply to any part of the Information which (i) is independently developed by the receiving party as evidenced by documentation in the party's possession; (ii) is lawfully received from another source free of restriction and without breach of this Agreement; (iii) has become generally available to the public without breach of this Agreement by the receiving party; or (iv) is otherwise known, or becomes known to the receiving party free of any obligation to keep in confidence (each an "Exemption"). Information that was (a) disclosed by either party to the other during the term(s) of the Distribution Agreement, including its amendments, and the Letter Agreement, and (b) treated as confidential under such agreement shall be treated as Information under this Section notwithstanding the termination of those prior agreements. In the event of termination of the Agreement, the provisions set forth in this Section shall continue to apply to such Information that is not subject to an Exemption.
15. Force Majeure. Neither party to this Agreement shall be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) if such failure is caused by acts of God, war, terrorist activities, strikes, inability to secure labor materials or third-party services, revolutions, fire, earthquake or other casualty, lack or failure of transportation, water or electrical facilities, changes in laws or governmental regulations or any other causes that are beyond the reasonable control of such party (a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, the party who has been so affected immediately shall give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, the Agreement shall be immediately suspended. Delays in delivery due to a Force Majeure Event shall automatically extend the delivery date(s) for the period equal to the duration of such Force Majeure Events.
16. Word Usage. Unless the context clearly requires otherwise, (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine, feminine, and neuter genders shall each be deemed to include the others; (c) "shall," "will," or "agrees" are mandatory, and "may" is permissive; (d) "or" is not exclusive; and (e) "includes" and "including" are not limiting.
17. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.
18. Necessary Acts / Further Assurances. The parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Publisher Agreement to be duly executed by their respective authorized representatives:

Publisher: AS ENTERED IN THE FORM ABOVE.

Peanut Labs, Inc.

Murtaza M. Hussain

By: Murtaza M. Hussain

Its: CEO

Date: 11-Feb, 2007

Address for Notices:

Name: Murtaza M. Hussain

Address: 114 Sansome Street, Suite 920

City/ State/ Zip: San Francisco, CA 94104

Phone No.: 415-659-8266 x803

Fax No.: 413-803-0176

E-mail: Murtaza.hussain@peanutlabs.com