TERMS AND CONDITIONS
INTRODUCTION AND DEFINITIONS. We provide you and, if applicable, Authorized Users, access to our products, services, code, and/or programs (each a “ Program ”) for your use, subject to your acceptance of and compliance with these Terms and Conditions (the “ Terms and Conditions ”), the terms and conditions, if any, of the Programs in which you enroll (each, “ Program Terms ”), and the terms and conditions of any applicable insertion order(s) that you or your Affiliate(s) enter into that specifically references these Terms and Conditions and/or applicable Program Terms (each, an “ Insertion Order ”) (collectively, the “ Agreement ”). In the Agreement, (i) “ we ,” “ us ,” and “ our ” mean Overture Services Europe BV (“ OSEBV ”), (ii) a “ Yahoo! Company ” means OSEBV, Yahoo! Inc. (“ Yahoo! ”), Overture Services, Inc. (“ Overture ” or “ Yahoo! Search Marketing ”), or another Affiliate of OSEBV, Yahoo!, or Overture, (iii) “ Yahoo! Entities ” are the Yahoo! Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, third-party service providers, and third parties distributing ads via the Distribution Network, (iv) “ Yahoo! Company Websites ” means all the website pages, including any Microsite, that are owned, operated, authorized, or hosted by or for the Yahoo! Companies, (v) “ Yahoo! Code ” is proprietary software code and related tools that we may offer to you in connection with a Program, and which are part of such Program, (vi) “ Distribution Network ” means the network of advertising channels, including all forms of media, applications, and devices, through which we distribute ads, whether on or off the Yahoo! Company Websites, (vii) “ you ” and “ your ” mean the entity electronically accepting the agreement, or the company name in an Insertion Order, and any of its Affiliates that execute an Insertion Order for any Program, (viii) “ Affiliate ” means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, (ix) “ Authorized Users ” means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf, and your Affiliates that access a Program without executing their own separate Insertion Order, and (x) “ PII ” means personally identifiable information. Terms used but not defined herein have the meanings given to such terms in any Program Terms or Insertion Order, as applicable. Terms used in any Program Terms or Insertion Order, but not defined therein, have the meanings given to such terms in these Terms and Conditions. All definitions apply both to their singular and plural forms, as the context may require.
ACCESS. You will not: (i) use any automated means, including agents, robots, scripts, or spiders, to access, monitor, scrape, or manage your account(s) with us, or to access, monitor, scrape or copy the Yahoo! Company Websites or Yahoo! Company systems or any data therein, except those automated means expressly made available by us or authorized by us in advance in writing (e.g., third-party tools approved by us), (ii) bypass any robot exclusion headers on the Yahoo! Company Websites (including using any device, software, or routine to accomplish that goal), (iii) interfere or attempt to interfere with the proper working of the Yahoo! Company Websites, Programs, or Yahoo! Company systems, nor (iv) use or combine our Programs with software offered under an open source license which create any obligations with respect to our Programs contrary to the Agreement, or grant to any third party any rights to or immunities under our intellectual property or proprietary rights in our Programs. Our Programs, including your password(s) related to your account(s), may not be used by, or made available to, any third party, except Authorized Users. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us, e.g., the unauthorized disclosure or use of your username or password. Authorized Users must comply with the Agreement and you are liable for their acts and omissions in connection with the Agreement, and any charges, costs, fees, or expenses they may accrue. You may use data made available to you in connection with a Program solely for internal use to manage your account(s) with us and you will neither publish such data, nor create profiles of our users. We reserve the right to modify or discontinue offering any Program or part thereof. Your Information must comply with our policies and specifications, which we may change from time to time. The Yahoo! Companies may provide free clicks, free impressions, ads, credits, and/or discounts, including in connection with contests, incentives, promotions, or donations. If you have been granted API Access, you are bound by the API Access & Analytics Program Terms, below.
YOUR SITE AND INFORMATION. We are not responsible for any aspect of your or any third-party website(s). You represent, warrant, and covenant that: (i) all information you provide or use (including our suggestions) in connection with the Agreement and/or on your website, including all creative, titles, descriptions, trademarks, listings, abstracts, keywords, ad target options, domain names, content of ads, data, data feeds, Selected Ad Groups, Content, and URLs (each of the foregoing, individually and collectively, “Information”) is, and will be updated to remain, current and accurate, and (ii) your website does not contain any content owned or licensed by us, including any ads published by us or through the Distribution Network, except pursuant to a separate signed agreement with us, and (iii) your Information is either original to you or you have secured all necessary rights and licenses for its use as contemplated by the Agreement, and you are responsible for all royalties, payments, and fees with respect thereto.
USE OF INFORMATION. In order to participate in any Program, you grant the Yahoo! Entities a non-exclusive, royalty-free, worldwide license in connection with all Programs to: (i) use, copy, adapt, reformat, recompile, communicate by telecommunication, truncate, edit, and/or modify any part of the Information for public performance, public display, and distribution, (ii) access, index, cache, and display the website(s) to which ads link, or any portion thereof, by any means, including web spiders and/or crawlers, (iii) create and display copies of any text, images, graphics, audio, or video on the websites to which ads link, and (iv) distribute ads through the Distribution Network. None of the Yahoo! Entities will have any liability for ads or Information. You will provide all Information to us for our review before it is posted to the Distribution Network. A Yahoo! Entity may refuse, reject, cancel, or remove any ad, Information, or space reservation at its discretion at any time.
REPRESENTATIONS. You represent, warrant, and covenant that: (i) you have the rights, authority, and any required permission and consent to enter into the Agreement, (ii) you are a business, not a consumer, (iii) your use of each Program is solely for lawful business purposes, (iv) all Information is free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any Yahoo! Company system data or information, (v) you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent (as determined by us) clicking, impression, or marketing activities relating to any Program, (vi) the Information, all emails, newsletters, and other materials and technology in connection therewith, any tools or code you use or make available in connection with a Program, and/or any act or omission by you relating to a Program or the Yahoo! Entities: (a) do not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, or Yahoo! Company policies or guidelines (collectively, “ Laws ”), (b) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (c) do not breach any duty toward, or rights of, any person or entity, including rights of publicity and/or privacy, (d) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, and (e) do not (as determined by us) reflect poorly on or tarnish the reputation or goodwill of a Yahoo! Entity, (viii) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any Programs, or any aspect or portion thereof, or Confidential Information, including source code or algorithms, (ix) you will not alter or remove any identification, trademark, copyright, or other notice from any aspect of the Programs, (x) you will comply with any trade sanction, or import or export regulation that applies to your use of our Programs and agree to obtain all necessary licenses to use, export, re-export, or import our Programs as applicable, and (xi) you will not provide access to the Programs, except to Authorized Users or employees, who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in the Agreement.
INDEMNIFICATION. You will indemnify, defend, and hold harmless the Yahoo! Entities from all claims, whether actual or alleged (collectively, “ Claims ”), that arise out of or in connection with your Information, your or Authorized Users' use of any Program, Yahoo! Company system, or Yahoo! Company Website, your website, or your or Authorized Users' breach of the Agreement. You are solely responsible for defending any Claim against a Yahoo! Entity, subject to such Yahoo! Entity's right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, resulting from all Claims against a Yahoo! Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Yahoo! Entity without its prior express written consent.
WARRANTY DISCLAIMER. THE PROGRAMS, DISTRIBUTION NETWORK, YAHOO! COMPANY SYSTEMS, YAHOO! COMPANY WEBSITES, YAHOO! CODE, AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. WE HEREBY DISCLAIM ON BEHALF OF ALL YAHOO! ENTITIES ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF THE YAHOO! ENTITIES IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE LESSER OF THE AMOUNT ALREADY PAID BY YOU TO US PURSUANT TO THE AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND U.S. $250,000 (OR ITS EQUIVALENT). IN NO EVENT WILL ANY YAHOO! ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. YOU WILL NOT HOLD A YAHOO! ENTITY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
TERMINATION. At any time, for any or no reason, you or we may terminate the Agreement and/or your participation in any Program, and we may suspend or limit your participation in any Program or part thereof. The Yahoo! Entities will not have any liability regarding the foregoing decisions. Upon termination of any Program Terms or the suspension or discontinuation of any Program or your participation therein, your outstanding payment obligations incurred under such Program will become immediately due and payable. Sections 2 (second, fourth, and fifth sentences only), 3(ii), and 4 through 14 of these Terms and Conditions, the defined terms of the Agreement, and those provisions specified in any Program Terms will survive termination of the Agreement.
NOTICES. We may give notices to you by posting on any Yahoo! Company Website, or by email to the address provided by you to us. It is your responsibility to ensure that your contact and account information (including your email and billing addresses) is current and correct, and you will promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, OSEBV, 701 First Avenue, Sunnyvale, California 94089. The Agreement does not permit you to enroll in any of our Program(s) in Japan or the People's Republic of China.
CHOICE OF LAW; VENUE. The terms of the Agreement and any dispute relating thereto or between you and us will be governed by the laws of the State of California, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County or Santa Clara County, California, or another location designated by us. Any claim against us will be adjudicated on an individual basis and will not be consolidated in any proceeding with any claim or controversy of any other party.
REPRESENTATIVE. If you are an advertising agency, search engine marketer, reseller, or other entity representing Advertisers (“ Representative ”), this Section applies, and in such case, “ you ” and “ your ” mean Representative, any Affiliates of Representative who execute an Insertion Order, together with Advertisers. “ Advertiser ” means an entity (including a sole proprietor) which is/will be enrolled in a Program by you. a. Representative represents, warrants, and covenants that: (i) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser's accounts, (ii) by Representative executing an Insertion Order or otherwise enrolling an Advertiser in a Program, the Advertiser is also entering into the Agreement, (iii) Representative will not, without our prior written consent: (a) make any representation, guarantee, condition, or warranty concerning any Program or Yahoo! Entity, including that Representative is an affiliate or partner of a Yahoo! Entity, (b) make any commitments (e.g., guarantees as to placement of ads) to an Advertiser or potential Advertiser regarding any Program, (c) negotiate any terms or conditions related to the Programs which may affect the rights, protections, and/or obligations of a Yahoo! Entity, and/or that are inconsistent with the Agreement, or (d) engage in any telesales or telemarketing in connection with any Program, and (iv) Representative will perform its duties pursuant to the Agreement in a professional manner consistent with the requirements established by us. Upon our request, Representative will immediately deliver to us each agreement that designates Representative as the Advertiser's agent and authorizes Representative to act on the Advertiser's behalf in connection with the Agreement. In the event of a termination of your relationship with an Advertiser, such Advertiser may continue to use the Information, including account and performance history, and Representative will no longer have API Access for such Advertiser's accounts. Representative will not at any time use data or information received in connection with the Agreement to conduct any marketing efforts targeted at our existing advertisers. While the Agreement is effective and for twelve (12) months thereafter, Representative will not, directly or indirectly, refer for employment or solicit our employees, consultants, or agents. b. Payment Liability. Without limiting any other provision of the Agreement, Representative and each Advertiser will be jointly and severally liable for all payment obligations, if any, and you hereby waive any Law that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable. Notwithstanding the foregoing, (i) if we offer you Sequential Liability in a particular country and we approve the applicable Advertiser's credit application, we will hold Representative liable for payments, solely to the extent Representative has received payment from such Advertiser; for sums not received by Representative, we will hold the Advertiser solely liable (“ Sequential Liability ”), and (ii) If Representative (x) breaches or allegedly breaches Section 14a.(i), above, or (y) fails to comply with our request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments, Representative will be obligated to immediately pay all such amounts due us regardless of whether it has received payment from such Advertiser. You acknowledge that we may directly contact any Advertiser represented by Representative, including if we have not received payment for such Advertiser's account within 60 days from the date of the applicable invoice.
ELECTRONIC SIGNATURES EFFECTIVE. a. If the Agreement is an electronic contract, then this Section applies in order to set out the legally binding terms of your use of our Programs, including the Yahoo! Company Websites. You accept the Agreement and the terms, conditions, and notices contained or referenced herein by clicking on the “I Accept” button in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. When you click on the “I Accept” button during enrollment, you also consent to having the Agreement provided to you in electronic form. b. You have the right to receive the Agreement in non-electronic form and may request a non-electronic copy of the Agreement before or after you electronically sign the Agreement by submitting a request to us as specified below. You also have the right, at any time, to withdraw your consent to have the Agreement provided to you in electronic form. Should you choose to withdraw your consent to have the Agreement provided to you in electronic form, we will discontinue your then-current username and password. This means that you will not have the right to use any Program unless and until we issue you a new username and password. We will only issue you a new username and password after we receive a signed copy of a non-electronic version of the Agreement, which we will send to you upon written request. To withdraw your consent and/or request a non-electronic copy of the Agreement, please send a letter and self-addressed stamped envelope to the applicable address set forth in Section 11, above. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. Prior to such effective date, the Agreement electronically signed by and provided to you will remain legally valid and enforceable. c. In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). Please print a copy of the Agreement for your records. To retain an electronic copy of the Agreement, you may save it into any word processing program. We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.
API ACCESS PROGRAM TERMS - If you participate in the API Access Program in a particular country, the following Program Terms apply.
USE. If we grant you API Access in connection with a Program(s) (“ API Access Program ”), API Access will be considered part of such Program(s). “ API Access ” is the ability, via the API Code, to access certain Program account information and/or features, and to execute commands for your Program account(s). You may not use your API Access, including any data obtained therefrom, for purposes other than managing your Program account(s) to which the API Access relates. In the event your use of a Program terminates, your API Access to such Program will terminate immediately. We may limit, modify, or terminate your API Access, in our discretion, at any time, and such modifications may require you to make changes, at your expense, to the API Code for continued API Access. “ API Code ” is software enabling API Access created by you or us using an XML/SOAP interface we specify. You may not use API Access pursuant to this section if you are party to another agreement with a Yahoo! Company that provides for such access.
CODE. If we give you Yahoo! Code, either the API Code itself or software to be incorporated into the API Code developed by you, we grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited, internal-use license to use the Yahoo! Code given to you by us solely for API Access. Upon our request, you will make the API Code available to us for our review, and notify us of the features and functionality of such API Code and the application to which the API Code connects. Your use of API Access must not place an unreasonable or disproportionately large load on our systems (as determined by us) or exceed access frequency limits set by us from time to time. If you are a Representative, this Section gives you, and not the Advertiser(s), API Access.
EFFECTS OF TERMINATION. None of the terms and conditions of the API Access Program Terms will survive the termination of these API Access Program Terms or the Program Terms of the Program for which you have been granted API Access.
ANALYTICS PROGRAM TERMS – If you participate in the Analytics Program in a particular country, the following Program Terms apply.
USE. We may provide you with Analytics in connection with a Program(s) for your use (“ Analytics Program ”). “ Analytics ” is Yahoo! Code for insertion on your webpages to enable the analytical tools available for your account. Provided that you install Analytics, Yahoo! Code will be delivered into the Internet browser of visitors to your website(s) during their interaction with your website(s). Subject to the terms of the Agreement, we grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited internal-use license for use with your Program account to use, execute, and display Analytics on your website. During the Analytics set-up process, we may append certain parameters to the URL associated with your ad to enable the Analytics Program. You may not edit or delete such parameters, which would prevent the proper functioning of Analytics and would render impaired or inaccurate results.
“Third-Party Web Beacons: We use third-party web beacons from Yahoo! to help analyze where visitors go and what they do while visiting our website. Yahoo! may also use anonymous information about your visits to this and other websites in order to improve its products and services and provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by Yahoo!, click here .”
EFFECTS OF TERMINATION. Upon termination of these Analytics Program Terms or the Program Terms of the Program for which you have been provided Analytics, (i) you must promptly remove or have removed the Analytics from your website(s) and all items under your possession, custody, and/or control, and (ii) Section 2(i), above, will survive.
* * *
These Terms and Conditions and Program Terms were last updated on June 25, 2008.
Check this link for future updates: http://info.yahoo.com/legal/us/yahoo/indextools/indextools-2186.html