Affiliate Program Operating Agreement (revised 09/27/02)

This Agreement, made and entered by and between Distinct Corporation ("Distinct" or "we"), a California Corporation, with its principal place of business at 3315 Almaden Expressway, San Jose, CA 95118, and you, the affiliate ("you" or "Affiliate"), contains the complete terms and conditions that apply to your participation in the Distinct Affiliate Program (the "Affiliate Program" or "Program")

Enrollment in the Program

After we carefully review your application, we will notify you of your acceptance or rejection to the Program. We may reject your application (at our sole discretion) if we feel your site is unsuitable or inconsistent with the mission of Distinct or if your site violate intellectual property rights, contains pornographic material, contains content that is threatening, defamatory, fraudulent, obscene or harassing or promotes violence, discrimination or unlawful activities, including spam e-mail or pyramid schemes.

Qualifying Products

Distinct Network Monitor is the only product which qualifies for the Distinct Affiliate Program ("Qualifying Product") at this time.

Links on Your Site
Once you have been accepted into the program, we will issue you a unique Affiliate Link which allows the Distinct system to identify visitors originating from you site.  You must use this Affiliate Link when you link your site to our, otherwise we will not be able to track where the referral comes from.

Order Processing
We will process orders placed by customers who follow the Affiliate Link from your site to our site. We reserve the right to reject orders that do not comply with any requirements that we may establish periodically. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service and technical support.

Referral Fee
We will pay you a 15% referral fee of the actual price paid by the customer to Distinct for a Qualifying Product.  For a sale to be eligible to earn a referral fee, the visitor to your site must click-to our site utilizing the Affiliate Link assigned to you, order a license of a Qualifying Product or download a trial copy and order a license of a Qualifying Product within 90 days from the download date.  You will not be eligible for a referral fee if the customer is already present in our database or if the order is placed through a Distinct reseller.

We will make referral fees payments monthly, within 30 days from the end of each month, by company check issued to you in $US and mailed via USPS mail.  In calculating referral fees, we will deduct the corresponding referral fee from your next monthly payment if a Product that generated a referral fee is returned by the customer.  If there is no subsequent payment, we will send you a bill for the referral fee previously paid to you.

Your Web Site

We will provide you with guidelines and graphical artwork to use in linking to the appropriate page, but you will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site.   Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.

Term of the Agreement
The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all Distinct trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are eligible to earn referral fees only on our sales of Qualifying Products that occur during the term, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

Modification
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

Limitation of Liability
We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to you under this Agreement.

Disclaimers
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

Arbitration
Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in San Jose, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

Governing law
This Agreement will be governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent.