Terms of Service Agreement

1. DEFINITIONS

"DirecTENDER" means DirecTENDER Limited, a New Zealand based corporation. "Lister or Responder" means the party utilizing DirecTENDER's services. "Agreement" means this Terms of Service Agreement between the Lister or Responder and DirecTENDER. "Content" and "Lister or Responder Content" means all information and materials submitted by Lister or Responder to DirecTENDER. "Service" or "Services" means the services provided to Lister or Responder by DirecTENDER including, but not limited to, press release distribution, Internet clips, webcasting, and storing. “Partner” or “Partners” means a third party that has a joint venture or marketing relationship with DirecTENDER.

2. LISTER OR RESPONDER REPRESENTATIONS AND WARRANTIES

The Lister or Responder is solely responsible for the accuracy and authenticity of the Content submitted by Lister or Responder to DirecTENDER. Lister or Responder represents and warrants to DirecTENDER, as follows:

1. That Lister or Responder has the right and is authorized to submit the Content to DirecTENDER for distribution, broadcasting and/or storing;

2. That the Content is true and accurate;

3. That the Lister or Responder is not impersonating any person or entity or misrepresenting Lister or Responder's affiliation with any person or entity;

4. That the distribution, broadcasting and/or storing of the Content does not violate the state, federal or common law copyright, trademark, or service mark rights, any other property rights, privacy rights, intellectual property rights, confidentiality rights or other proprietary or contract rights of any third party;

5. That the Content does not contain any information which is libellous or otherwise illegal;

6. That Lister or Responder will not misuse the Services or misappropriate the Content to compete directly or indirectly with DirecTENDER or to engage in derivative commercial activities without DirecTENDER's prior written consent; and

7. That Lister or Responder has investigated the desirability of utilizing DirecTENDER's services and is not relying on any representation, guarantee, or statement other than as set forth in these Terms of Service or in the materials on DirecTENDER's web site, "DirecTENDER.com, .info, .biz, .co.nz, directtender.com".

3. INDEMNIFICATION

In the event any third party brings any action, arbitration, or other legal proceeding (collectively, "legal proceeding") against DirecTENDER, its officers, directors, shareholders, agents, employees or other representatives of DirecTENDER, or against any third party who broadcasts, displays or distributes the Content with the permission of DirecTENDER, or against any third party who provides advertising for DirecTENDER, or against any other third party who otherwise uses the Content with DirecTENDER's permission (collectively hereinafter referred to as "the Indemnities"), or against any Partner, arising from the distribution, broadcast, storing or display of any Content provided by Lister or Responder to DirecTENDER or, from any breach by Lister or Responder of this Agreement, or, based upon the inaccuracy of any warranty or representation made by Lister or Responder herein, or, based upon the contention that the Content defames or slanders any third party or, based upon the contention that the Content violates any provision of state or federal law or the intellectual property rights of any third party, Lister or Responder shall indemnify, defend, and hold the Indemnities harmless in connection with the claims made in the legal proceeding. Included in Lister or Responder's obligation to indemnify, defend, and hold the Indemnities harmless is the obligation to pay all attorneys' fees, expert witness fees, costs, and expenses incurred or to be incurred by the Indemnities in connection with the defense of the legal proceeding (even if the legal proceeding is without merit).

4. LICENSE

Lister or Responder hereby grants DirecTENDER a non-exclusive, royalty-free, sub-licensable, transferable, and assignable license to store, display, reproduce, distribute and, if appropriate, translate the Content submitted. Lister or Responder also grants DirecTENDER the right to mention Lister or Responder's name in DirecTENDER's marketing collateral, unless Lister or Responder requests in writing that DirecTENDER refrain from such mentions.

5. POLICIES

DirecTENDER maintains a set of policies governing the allowable usage of its Services. A copy of these policies are sent to new Lister or Responders and are available to all Lister or Responders on their Account Management page, which is the first page displayed after newly logging in to the DirecTENDER web site. The Lister or Responder agrees to adhere to these policies, as amended from time to time, as a necessary condition for using DirecTENDER’s Services.

6. PRICES

Prices for DirecTENDER's Services may change from time to time. The price actually charged for a specific Service will be the price in effect at the time the Service is requested, minus any applicable discounts that may have been accorded Lister or Responder under a valid Sales Contract signed by both Lister or Responder and DirecTENDER.

7. PAYMENT AND CREDIT TERMS

Lister or Responders may pay for Services by credit card at the time the Content is submitted or, with approved credit, may be invoiced. Unless otherwise specified, invoices are due upon receipt.

8. DEFAULT

If Lister or Responder fails to pay any sums when due, Lister or Responder acknowledges and agrees that DirecTENDER may demand payment of the balance owed in full, with accrued interest at the monthly rate of 1.5% of the outstanding balance. DirecTENDER may, at its sole election, suspend performance of any further Services and/or may switch Lister or Responder from invoice to credit card payment status, until such time as all payments due are paid. In the event Lister or Responder fails to make payment for any Services when due or the event DirecTENDER takes any action to enforce its rights, Lister or Responder agrees to pay all costs of collection, including reasonable attorneys' fees, which are incurred by DirecTENDER or its agents, whether or not a lawsuit is filed. In the event of litigation to enforce the terms herein, the prevailing party will be entitled to recover from the other party its costs and fees, including reasonable attorneys' fees.

9. NO WARRANTIES BY DirecTENDER

EXCEPT AS STATED IN THIS AGREEMENT, DIRECTENDER OR PARTNER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND NO PROMISE OR REPRESENTATION HAS BEEN MADE BY DIRECTENDER OR PARTNER REGARDING ANY SERVICES TO BE PROVIDED BY OR THROUGH DIRECTENDER OR PARTNER.

10. LIMITATION OF LIABILITY

DIRECTENDER'S AND PARTNER’S LIABILITY SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY OR ON BEHALF OF THE LISTER OR RESPONDER TO DIRECTENDER IN CONNECTION WITH THE SERVICES OUT OF WHICH THE CLAIM BY LISTER OR RESPONDER ARISES.

DirecTENDER shall not be liable for indirect, incidental, consequential, special or exemplary damages (even if DirecTENDER has been advised of the possibility of such damages and including such damages as might be incurred by third parties), arising from performance under, or failure of performance under, any provision of this Agreement, such as, but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business.

This limitation of liability applies to any damages, including without limitation those caused by any failure or performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortuous conduct, acts or omissions, negligence, or under any other claim or cause of action.

11. NOTICES

At DirecTENDER's sole discretion, notices by DirecTENDER to Lister or Responders regarding matters pertaining to this Agreement and/or the performance of this Agreement may be given by means of posting on the DirecTENDER web site "DirecTENDER.com, .info, .biz, .co.nz, directtender.com" or by email to the Lister or Responder.

12. ENTIRE AGREEMENT

This Agreement, together with the Policies referenced in section 5 above (“Policies”) and the Sales Contract (if any) referenced in section 6 above (“Prices”) constitute the entire agreement between Lister or Responder and DirecTENDER regarding the Services provided and/or to be provided by DirecTENDER. This Agreement replaces any and all prior written and oral understandings and writings. Unless otherwise explicitly stated, the provisions of this Agreement shall survive its termination.

13. JURISDICTION

Any lawsuit filed by either party to enforce or construe any right granted under this Agreement or to assert any claim arising from the Services provided by DirecTENDER to Lister or Responder shall be filed exclusively in New Zealand. In connection with any such action, Lister or Responder consents to jurisdiction in the Courts of New Zealand. In any such action, the parties agree that the laws of New Zealand shall apply and shall govern the determination of the action.

14. EFFECT OF DELIVERY OF NOTICES BY FACSIMILE OR ELECTRONIC MAIL

The parties agree that the parties shall treat any document sent to the other by facsimile or by electronic mail as if the document were an original delivered to the recipient by hand delivery.