270 Legal [Sample Agreements]

PERFORMICS INSERTION ORDER TERMS AND CONDITIONS (v01.05)

These Performics Insertion Order Terms and Conditions (v01-05) (“Terms and Conditions”) supplement the Insertion Order made between Performics Inc. (“Performics”) and the party executing the Insertion Order (the “Distribution Partner”). These Terms and Conditions likewise supplement all other Insertion Orders subsequently executed by Distribution Partner. These Terms and Conditions, as well as any Marketer Specific Terms (as defined below), supersede and replace any and all prior agreements entered into by and between Performics and Distribution Partner and shall control all existing Insertion Orders. Marketer Specific Terms are terms and conditions that may be required by an individual Marketer. Such Marketer Specific Terms shall only be binding upon Distribution Partner to the extent that the Marketer Specific Terms are set forth in writing in an Insertion Order executed by Distribution Partner or are included in the ConnectCommerce™ interface and agreed to by Distribution Partner. Terms not defined in these Terms and Conditions shall have the meanings set forth in the Insertion Order. The Insertion Order, all subsequently executed Insertion Orders and these Terms and Conditions are collectively referred to as the “Agreement”.

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4. Responsibilities of Performics

Performics covenants and agrees to use its commercially reasonable best efforts (a) to provide, monitor and maintain the necessary technology applications required to link the Distribution Partners to the Marketer Web sites (“Performics Technology”) and to track the relevant actions as set forth in the Insertion Order. Performics Technology shall include the use of tags in HTML/Java or other appropriate languages (the “Tags”) to enable Performics to serve or provide Offers to the Distribution Partner; (b) to provide the Distribution Partner with product descriptions, GIF or JPEG Images, other product attributes (including the SKU’s), product availability, order status, and shipment confirmation (each in a mutually acceptable format) for those Marketers that agree to provide Performics and Distribution partner with such information; (c) to provide changes to Offers or cancellations in writing at least three (3) business days in advance of requested change date; and (d) to provide the Distribution Partner with real-time access to records that will allow it to monitor the volume of Offers delivered by the Distribution Partner and the revenue produced thereby (subject to billing corrections and adjustments) in accordance with Section 3. All such records, including data, statistical information or other traffic analysis, produced or provided by either party in connection with the performance of this Agreement shall be the sole properly of Performics.
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