DISKEEPER CORPORATION AFFILIATES PROGRAM OPERATING AGREEMENT Please review the Diskeeper Corporation Affiliates Program Operating Agreement and follow the instructions at the end of the document to indicate your acceptance of the Agreement’s terms. This Diskeeper Corporation AFFILIATE PROGRAM OPERATING AGREEMENT (the "Agreement") is made and entered into as of the Effective Date below by and between Diskeeper Corporation. ("Diskeeper Corporation"), a California corporation located at 7590 N. Glenoaks Blvd., Burbank, CA 91504 in the USA and ("Affiliate"), an individual or entity of ______________ (full address, including phone, state and country). Recitals i. Affiliate is an individual or entity in the United States, North America, South America or Pacific Rim nations and wishes to participate in the Diskeeper Corporation linking referral relationship described in this Agreement ("Program"); ii. Diskeeper Corporation operates a web site called Diskeeper Corporation to offer software and affiliate items to online shoppers in the United States, the District of Columbia, North America, South America, or in the Pacific Rim nations and wishes to promote orders of such items through the Program; iii. Diskeeper Corporation offers this Affiliates Program Operating Agreement as of April 23, 2003 for the purpose of: connecting end users from the Affiliate's Site to the Diskeeper Corporation on-line sales site; enabling Diskeeper Corporation to establish and manage its relationship with Affiliate; and, measuring and reporting related activity. iv. Diskeeper Corporation and Affiliate are entering into this Agreement to allow Affiliate to connect to the Diskeeper Corporation on-line sales site via hyperlinks located on Affiliate's Site and for the other purposes as set forth below. Now therefore, the parties agree as follows: Agreement 1. Definitions 1.1 "Affiliate's Site" means a web site owned and operated by or for Affiliate on which Links are placed pursuant to the terms and conditions set forth in this Agreement. 1.2 "Diskeeper Corporation on-line sales site" means the web site owned and operated by at http://www.diskeeper.com, or any successor site designated by Diskeeper Corporation from time to time. 1.3 "Confidential Information" means all non-public information that a party hereto designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. "Confidential Information" includes, without limitation, the terms and conditions of this Agreement, information relating to released or unreleased software or hardware products, marketing or promotion of any product, business policies or practices, customers or suppliers, or information received from others that a party hereto is obligated to treat as confidential. "Confidential Information" shall not include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (ii) is known and has been reduced to tangible form by the receiving party at the time of disclosure and is not subject to restriction; (iii) is independently developed or learned by the receiving party; (iv) is lawfully obtained from a third party that has the right to make such disclosure; or (v) is made generally available by the disclosing party without restriction on disclosure. 1.4 "Effective Date" means the date upon which Diskeeper Corporation provides Affiliates notice of Diskeeper Corporation's acceptance of this Agreement. 1.5 "Guidelines" means the current Program guidelines set forth at http://Diskeeper Corporation/associate as may be updated from time to time. 1.6 "Link(s)" means the hyperlink graphic files (e.g., featuring a Diskeeper Corporation on-line sales site logo or an image/name of a particular Diskeeper Corporation product) which Affiliate may download from http://www.diskeeper.com, or any successor site designated by Diskeeper Corporation. The Links will contain unique promotion codes to enable Diskeeper Corporation to track Orders from the Affiliate's Site pursuant to the terms and conditions set forth in this Agreement. 1.7 "Order(s)" means an offer to acquire Diskeeper Corporation product(s): (i) placed on the Diskeeper Corporation on-line sales site directly from a Link on Affiliate's Site during the same shopping session after the shopper clicks on the Link ("Order"); and (ii) for which the applicable Order is accepted by Diskeeper Corporation. 1.8 "Referral Fee(s)" means a percentage payment based on monies actually received by Diskeeper Corporation for Orders, excluding costs for shipping, handling, taxes, credit card processing fees, returns and bad debt. Referral Fees are to be calculated using the specific percentages listed in Exhibit A, attached herein, and such percentage may be updated by Diskeeper Corporation from time to time with written notice to Affiliates. All other capitalized terms shall have the meaning ascribed in this Agreement. 2. Affiliates Participation in the Program 2.1 Affiliates may, during the term of this Agreement, publish the Links on the Affiliate's Site, so long as Affiliate complies with Guidelines and this Agreement. 2.2 Affiliate agrees that it will not issue any press release, sales, marketing, promotional material, advertisements, or similar materials discussing its relationship to Diskeeper Corporation without prior written approval from Diskeeper Corporation. 2.3 Affiliate agrees that any and all rights and obligations set forth in this Agreement shall apply for the geographic boundaries agreed upon within the terms and conditions of his Agreement (the "Territory"). 3. Operation of Diskeeper Corporation on-line sales site Diskeeper Corporation shall use commercially reasonable efforts to operate the Diskeeper Corporation on-line sales site. All orders placed on the Diskeeper Corporation on-line sales site are subject to the Diskeeper Corporation on-line sales site's terms, conditions, pricing, disclosures, notices and other policies (e.g., terms of use and privacy statement) provided to Affiliates' end users in connection with the Diskeeper Corporation on-line sales site, which include, without limitation, Diskeeper Corporation's right to reject any order which does not comply therewith. 4. Non-Exclusivity Notwithstanding anything contained herein to the contrary, the parties hereto agree that nothing contained in this Agreement shall be construed as creating an exclusive relationship between the parties. Nothing in this Agreement shall prevent Diskeeper Corporation from entering into agreements or providing programs, on similar or dissimilar terms, with any other party (including, without limitation, one that is similar to or competes with affiliate or affiliate's Site) to promote traffic to the Diskeeper Corporation on-line sales site via hyperlinks and/or other promotional programs. 5. Reporting & Payment 5.1 Referral fees will be paid by Diskeeper Corporation to Affiliates net forty-five (45) days after the end of each calendar month during the term of this Agreement. Diskeeper Corporation may, in its sole discretion, deduct or have deducted Referral Fees for items which are returned (e.g., including without limitation, for instances of fraud). Such Referral Fees will be deducted from the next monthly payment, unless no subsequent monthly payment is due, in which case Affiliates will be billed for and will promptly return the Referral Fees paid for such returned items. 6. Costs All costs incurred by either party in performing its obligations hereunder shall be borne by that party, without reimbursement from the other party, except as otherwise expressly set forth in this Agreement. 7. Confidentiality Each party shall protect the other's Confidential Information from unauthorized dissemination with the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the disclosing party. No ownership or license rights are granted in any Confidential Information. The receiving party's obligation hereunder shall extend for a period of five (5) years following the disclosure of the Confidential Information. 8. Representations & Warranties Affiliates warrants and represents to Diskeeper Corporation that: (i) it is a corporation established under the laws of and resides at the address designated in the introductory paragraph to this Agreement, (ii) it has the full right, power and authority to enter into this Agreement and to grant any rights granted herein; (iii) in connection with its performance of this Agreement, it shall comply with the Guidelines and all relevant federal, state, and local laws and regulations, including without limitation consumer protection laws and regulations; (iv) the performance of Affiliate's obligations pursuant to this Agreement will not violate any agreement or obligation between Affiliates and a third party; and (v) it will protect and maintain Diskeeper Corporation's Confidential Information to the same degree as it would its own Confidential Information. 9. Disclaimer of Warranties for Diskeeper Corporation on-line sales site THE Diskeeper Corporation ON-LINE SALES SITE IS PROVIDED "AS IS" AND "AS AVAILABLE." Diskeeper Corporation PROVIDES NO WARRANTIES IN CONNECTION WITH THE Diskeeper Corporation ON-LINE SALES SITE OR THE PROGRAM AND DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR OF FITNESS FOR A PARTICULAR PURPOSE. Diskeeper Corporation DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE Diskeeper Corporation ON-LINE SALES SITE OR ANY INFORMATION OR CONTENT CONTAINED ON THE Diskeeper Corporation ON-LINE SALES SITE WILL BE ACCURATE, UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE Diskeeper Corporation ON-LINE SALES SITE OR SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Diskeeper Corporation DISCLAIMS ALL LIABILITY FOR NEGLIGENCE OR FOR ANY LACK OF REASONABLE CARE. ALSO, Diskeeper Corporation DOES NOT PROVIDE ANY WARRANTY OF NON-INFRINGEMENT OR OF TITLE OR QUIET ENJOYMENT AND MAKES NO EXPRESS WARRANTIES. 10. Indemnity Affiliates hereby agrees to indemnify, pay the defense costs of, and hold Diskeeper Corporation harmless from any and all claims, demands, costs, liabilities, losses, expenses and damages (including attorneys' fees, costs, and expert witnesses' fees) arising out of or in connection with: (i) any third party claim that Affiliate's Site or portion thereof (excluding materials provided to Affiliate by Diskeeper Corporation hereunder) infringes any copyright, patent, trade secret, or other proprietary right held by any third party; or (ii) any claim which, taking the claimant's allegations to be true, would result in a breach by Affiliate of any of Affiliate's representations, warranties and covenants set forth in this Agreement. Prompt notice shall be given to affiliate of any claim to which the foregoing indemnity relates. 11. Limitation of Liability & Damages 11.1 EXCEPT FOR A PARTY'S LIABILITY ARISING UNDER SECTIONS 7 AND EXCEPT WITH REGARD TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 10 OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 11.2 The total liability of Diskeeper Corporation to affiliate for any and all claims relating to or arising under this Agreement shall be limited to the amount actually paid by Diskeeper Corporation to Affiliate, and Affiliate releases Diskeeper Corporation from all obligations, liability, claims or demands in excess of that amount. 12. Term & Termination 12.1 The term of the Agreement shall commence on the Effective Date and shall continue until it is terminated by either party pursuant to Section 12.2. 12.2 Either party may terminate this Agreement with or without cause at any time on thirty (30) days notice to the other party. 12.3 Sections 4 through 11 and 13 through 19 shall survive any expiration or termination of this Agreement. 13. Dispute Resolution. (a) Unaided Negotiations To resolve any dispute arising in connection with the construction, operation or enforcement of the provisions of this Agreement or the application or validity of it, Diskeeper Corporation or Affiliate must first provide written notice to the other, specifying in as much detail as possible the source or reason for the dispute and the resolution proposed by the notifying party. The receiving party shall respond in writing to any such notice within seven (7) business days after receipt. The receiving party may include in its reply a detailed description of any additional disputes it would like to resolve and the proposed resolutions to such disputes. The first notifying party shall respond to the first receiving party’s response within seven (7) days. If the dispute is not then resolved, there shall follow within seven (7) business days of the last written response a meeting between at least one representative of each party. Each party agrees to have present at such meeting such person or persons who are authorized to fully and finally resolve the dispute. The purpose of this meeting shall be to discuss and negotiate in good faith the complete resolution of any outstanding dispute. The date and times shall be chosen by the party responding to the first notice. Each party shall bear its own costs (including travel expenses incident to this negotiation and meeting). (b) Arbitration In the event that the parties are unable to resolve any outstanding disagreement or dispute as provided above, then the parties agree that the dispute or disagreement shall be finally resolved by arbitration under the International Arbitration Rules of the American Arbitration Association (AAA). The arbitration shall take place in Los Angeles, California before a sole arbitrator and the proceedings shall be conducted in the English language. Any award rendered in any such arbitration proceeding shall be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction. Either party, before or during any arbitration, may apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of the arbitration proceedings. 14. Governing Law, Venue & Attorneys' Fees 14.1 This Agreement shall be construed and controlled by the laws of the State of California, and Affiliate further consents to jurisdiction and venue by the state or federal courts sitting in the State of California. Process may be served on either party by U.S. Mail, postage prepaid, certified or registered, return receipt requested, or by such other method as is authorized by law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 14.2 If either Diskeeper Corporation or Affiliates employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs, including expert witness fees. 15. Notices & Requests 15.1 All notices and requests to Diskeeper Corporation in connection with this Agreement shall be deemed given as of the day they are: (i) deposited in the U.S. mails, postage prepaid, certified or registered, return receipt requested; or (ii) sent by overnight courier, charges prepaid, with a confirming e-mail; and addressed as follows: Diskeeper Corporation: Diskeeper Corporation INTERNATIONAL, INC., 7590 N. Glenoaks Blvd., Burbank, California 91504 Attention: Affiliates Program Administrator E-mail: assocpgm@diskeeper.com. With a cc to: Diskeeper Corporation INTERNATIONAL, INC., 7590 N. Glenoaks Blvd., Burbank, California 91504 Attention: Corporate Affairs Department. Email: dca@diskeeper.com; phone 818 771-1600; or to such other address as Diskeeper Corporation so designates by written notice to Affiliates. 15.2 All notices and requests to Affiliate in connection with this Agreement shall be deemed given as of the day upon which such notice or request is sent to the email address provided by Affiliates to Diskeeper Corporation as part of the Program registration or to such other email address as Affiliates so designates by written notice to Diskeeper Corporation, except where there are written notices or requests sent to the address given, in which case they shall be deemed given on the day of arrival at the correctly noticed address 16. No Assignment Affiliates may not assign this Agreement, or any portion thereof, to any third party unless Diskeeper Corporation expressly consents to such assignment in writing. Any attempted assignment without such consent shall give Diskeeper Corporation the right to terminate this Agreement immediately upon written notice. 17. Legal Relationship Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. 18. Severability In the event that any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. The parties intend that the provisions of this Agreement be enforced to the fullest extent permitted by applicable law. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. 18. Entire Agreement, Modification, No Offer The parties hereto agree that this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications. The failure of any party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights, and no condition or obligation under this Agreement may be waived without a written acknowledgment of such waiver, and a waiver of one condition or obligation is not to be construed as creating a waiver of any other condition or obligation. It cannot be modified except that Diskeeper Corporation may modify this Agreement by providing Affiliates an email notification of any proposed modification. If Affiliate rejects such modification by the terms indicated in such email, this Agreement shall automatically terminate. If Affiliate fails to accept or reject such modification by the terms indicated in such email, such modification will be deemed accepted by Affiliates. Neither this Agreement nor any written or oral statements related hereto constitute an offer, and this Agreement shall not be legally binding until executed by both parties hereto. 19. Binding Effect Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs, and permitted assigns. Exhibit A Guidelines Affiliate's Site Content: Affiliate's Site may not promote sexually explicit materials, violence, discrimination (based on age, race, color, sex, sexual orientation, national origin, religion, marital status, disability and/or veteran status ), illegal activities or other matters that would detract from the Diskeeper Corporation on-line sales site as determined solely in Diskeeper Corporation's discretion and communicated to Affiliates from time to time. Links: Once Affiliate and Diskeeper Corporation have fully executed this Agreement, Diskeeper Corporation will provide Affiliate with its personalized Online ID and Password to allow Affiliate to access the designated web page by clicking on it, or any successor site designated by Diskeeper Corporation, and this page enables Affiliates to download link logos Diskeeper Corporation has created for linking to Diskeeper Corporation, and add them to the Affiliate's Site. All usage of Links on Affiliate's Site is governed by the logo usage guidelines set forth in Exhibit B, which is attached hereto and incorporated herein by this reference. Diskeeper Corporation, at its sole discretion, shall determine when a Link must be replaced either because the Link has become outdated, needs to be updated or replacement is required pursuant to applicable law. Affiliates will remove or replace any Link immediately upon notice from Diskeeper Corporation. Referral Fees Percentages: Orders generated via Links to Diskeeper Corporation: 10% Exhibit B DISPLAYING THE Diskeeper Corporation LINK LOGOS ON NON-Diskeeper Corporation WEBSITES 1. Except as Diskeeper Corporation may authorize elsewhere, non-Diskeeper Corporation Web sites may display only the Link Logo(s) ("Logo") provided by Diskeeper Corporation on the designated web page. By downloading a Logo, you agree to be bound by these Policies. 2. You may only display the Logo on your Web site, and not in any other manner. A Page Link Logo must always be an active link to the link's respective page on http://www.Diskeeper Corporation, and a Product Link Logo must always be an active link to the specific page for that product within the Diskeeper Corporation site. 3. If the Logo gif includes the words "Diskeeper Corporation" indicating its purpose in directing consumers to that site, you may not remove or alter this or any other element of the Logo. 4. You may only display the Logo on a web page that makes accurate references to Diskeeper Corporation or its products or services, and must display it adjacent to the reference or at the bottom of the same page. Your web page title and other trademarks and logos must appear at least as prominent as the Logo. You may not display the Logo in any manner that implies affiliation with, sponsorship, endorsement, or license by Diskeeper Corporation. 5. The Logo must appear by itself, with a minimum spacing (the height of the Logo) between each side of the Logo and other graphic or textual elements on your page. The Logo may not be used as a feature or design element of any other logo. 6. You may not alter the Logo in any manner, including size, proportions, colors, elements, etc., or animate, morph or otherwise distort its perspective or appearance. 7. You may not display the Logo on any site that disparages Diskeeper Corporation or its products or services, infringes any Diskeeper Corporation intellectual property or other rights, or violates any state, federal or international law. 8. These Policies do not grant a license or any other right in Diskeeper Corporation's logos or trademarks. Diskeeper Corporation reserves the right in its sole discretion to terminate or modify your permission to display the Logo at any time. Diskeeper Corporation reserves the right to take action against any use that does not conform to these Policies, infringes any Diskeeper Corporation intellectual property or other right, or violates other applicable law. 9. Diskeeper Corporation DISCLAIMS ANY WARRANTIES THAT MAY BE EXPRESS OR IMPLIED BY LAW REGARDING THE LOGO, INCLUDING WARRANTIES AGAINST INFRINGEMENT. BY TYPING IN THE SIGNATURE BOX BELOW AFFILIATE SIGNS AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, WHICH INCLUDES WARRANTY AND DAMAGE DISCLAIMERS LIMITATIONS ON AFFILIATE'S REMEDIES AND CALIFORNIA CHOICE OF LAW AND VENUE.