- INTRODUCTION. These Master Terms and Conditions (the “MTCs”) are incorporated into each insertion order (each an “IO”) between you and Yahoo! Canada Co. (“Yahoo!”). These MTCs, together with the terms and conditions of any additional programs (the “Programs”) to which you subscribe (the “Program Terms”) and any additional terms and conditions agreed upon in the IO (collectively, the “Agreement”), govern your participation in Yahoo!’s Distribution Network (defined in Section 2). In the Agreement, “you” and “your” means the entity entering into the Agreement with Yahoo!, and “Yahoo! Entities” means Yahoo!, its affiliates and their respective officers, directors, representatives, employees, third-party service providers, and third parties distributing your ads via the Distribution Network.
- DISTRIBUTION NETWORK. We provide you with certain services, products and codes through our network of advertising channels, including all forms of media, applications and devices, through which we distribute ads on or off the Yahoo! Sites (the “Distribution Network”). In the Agreement, “Yahoo! Sites” means all the website pages that are owned, operated, authorized or hosted by or for Yahoo! or any of its affiliates. You agree that, subject to Section 6: (i) Yahoo! Entities have complete editorial freedom in terms of the content, look and feel and technical aspects of the Yahoo! Sites, Programs, and the distribution of Advertiser Materials (defined in Section 6) to end users; and (ii) the organization, specifications, availability and/or appearance of any Yahoo! Sites, the Programs (or any part thereof), third party products, or any other Systems (defined in Section 4) or property provided by any Yahoo! Entity may be modified at any time at the Yahoo! Entities' sole discretion. All rights not granted herein by Yahoo! are expressly reserved.
- PAYMENT. We will submit invoices to you, in the currency indicated by us, at the e-mail or mailing address in the IO, unless otherwise agreed by Yahoo!, and you shall pay (or cause to be paid, as applicable) such charges plus any applicable taxes,without offset or deduction, within 30 days of the invoice date. Late payments bear interest at a rate of 1% per month (or the highest rate permitted by law, if less). You acknowledge that delivery statistics provided by Yahoo! are the definitive measurements of Yahoo!’s performance on any delivery obligations provided in the IO. With the exception of dynamically priced placements, in the event that Yahoo!’s ad server measurements are higher than those produced by your third party ad server by more than 10% and you report such discrepancy in writing to Yahoo! within ten (10) days of receipt of such measurements, Yahoo! agrees to investigate such discrepancy to facilitate a reconciliation. However, if such discrepancy cannot be reconciled, Yahoo!’s delivery statistics will be used with a maximum adjustment of 10%. Further, you waive all other claims relating to charges unless claimed within 30 days after the charge.
- ACCESS. You will not and will not permit anyone to: (i) use any automated means, including robots, to manage, copy, access, monitor, or scrape your account(s) with us, the Yahoo! Sites or any of the Yahoo! Entities’ systems (the “Systems”) or any data therein, except as authorized by us in advance in writing, (ii) interfere or attempt to interfere with the proper working of the Yahoo! Sites, Programs, or the Systems (iii) use or combine our Programs with software offered under an open source license which creates any obligations with respect to our Programs, or grant to any third party any rights to, or immunities under, our intellectual property or proprietary rights, or (iv) bypass any robot exclusion headers on the Yahoo! Sites including through the use of any device, software, or routine). Our Programs, including your password(s) related to your account(s), may not be used by, or made available to, any third party, except for any person or entity acting or apparently acting on your behalf (“Authorized Users”). Authorized Users must comply with the Agreement, and you are fully liable and take full responsibility for the actions or omissions of your Authorized Users. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) (e.g., the unauthorized disclosure or use of your username or password). You may use data made available to you in connection with the Agreement, including data that is obtained, collected, or derived as a result of any targeting parameters provided by us, solely for internal use to manage your account(s), and you will not, without our prior written approval, publish such data, create profiles of our users, or use such data for retargeting. All data and information gathered or received by us in connection with the Agreement may be shared with and used by Yahoo! Entities and/or certain selected third parties only in anonymous form.
- REPRESENTATIVES. If you are an advertising agency, ad network or another entity representing any third party advertiser (each an “Advertiser”), you represent, warrant, and covenant that you are the authorized agent of and have bound the Advertiser to the Agreement and you have 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. Upon our request, you will deliver to us the agreement(s) that designates you as the Advertiser’s agent and authorizes you to act on the Advertiser’s behalf in connection with the Agreement. If you are acting as an ad network you must comply with the policies at http://adspecs.yahoo.com/policies.php#yan-policies, which we may change from time to time.
- ADVERTISER MATERIALS. Your ads including URL links, trademarks, domain names, rich media, images, text, audio, video, and other material, creative and/or information provided to Yahoo! or that you otherwise approve (collectively, the “Advertising Materials”) must comply with our then-current advertising policies and specifications (collectively, the “Policies”), including without limitation the policies at http://adspecs.yahoo.com/policies.php which we may change from time to time. You grant to the Yahoo! Entities a non-exclusive, royalty-free, worldwide, fully paid license to: (i) use, copy, reformat, adapt, recompile, truncate, publicly perform, display and distribute and, with your or your Advertiser’s approval, as applicable, modify the Advertiser Materials, (ii) access the websites to which your ads link to create and display, in connection with your ad, copies of text, images, graphics, audio or video, and (iii) reproduce your Advertiser Materials, to the extent they may be contained in screen shots of any Yahoo! Site, for use in any material promoting Yahoo!.
Yahoo! reserves the right at any time, for any or no reason, to reject or remove any Advertising Materials from the Distribution Network. You at all times remain solely responsible for your Advertising Materials. We do not undertake to review the content of Advertiser Materials and any review and/or approval by us will not be deemed to constitute an acceptance by us that they comply with the Agreement, applicable laws or industry standards or any waiver of any of our rights. If you do not provide all Advertising Materials, including any updates, at least 3 business days for standard ads and 5 business days for rich media and video ads prior to their anticipated distribution, or if the Advertising Materials do not conform to the Policies (it being acknowledged by you that we do not have any obligation to determine whether your Advertising Materials comply with the Policies): (i) we are not required to fulfill any guaranteed portion(s) of the IO, (ii) you are still responsible for the media (and related charges) purchased pursuant to the IO and (iii) Yahoo! may distribute, at its option: (a) back-up advertisements based on materials Advertiser has previously given Yahoo! or (b) public service announcements of Yahoo!’s choice, and charge Advertiser the rates set out in the IO for inventory held by Yahoo! pending receipt of acceptable Advertiser Materials.
- POSITIONING/DELIVERY. Unless specified in the IO, Yahoo! makes no guarantees with respect to usage statistics or levels of clicks or impressions for any ad. Your ads may be subject to inventory availability, and the final decision as to ad relevancy is at our discretion. We do not guarantee that your ads will be placed in, or be available through, any part of the Distribution Network, nor do we guarantee that your ads will appear in a particular position. We must approve in advance in writing the serving of ads by anyone other than us. Yahoo! may, at its sole discretion, optimize Advertiser’s campaign by modifying the line items of an IO.
Without limiting the foregoing, Yahoo! may, as agreed upon in the IO, deliver ads on a space available, pre-emptible basis (“Pre-emptible Ads”). For Pre-emptible Ads, you will pay only for the impressions actually served, and Yahoo! has no duty or obligation, express or implied, to publish, post, host, stream or otherwise deliver any ads. Except for Pre-emptible Ads, in the event (a) Yahoo! fails (except as a result of your breach of the Agreement) to publish an ad in accordance with the IO schedule, (b) Yahoo! fails to deliver the placements specified in the IO (if any) by the end of the specified period, or (c) of any failure caused by a Yahoo! Entity of an ad to appear as provided in the IO, then notwithstanding anything otherwise set out in the Agreement, the sole liability of Yahoo! to Advertiser shall be limited to, at Yahoo!'s sole discretion (i) a pro rata refund of any pre-paid fees, (ii) placement of the ad at a later time in a comparable position, or (iii) extension of the IO until the under-delivery is fulfilled.
- CONFIDENTIALITY. “Confidential Information” means information disclosed by one party to the other party, directly or indirectly, which under the circumstances ought reasonably to be treated as confidential, and that is not in the public domain or in the receiving party’s possession prior to the time of receipt and includes without limitation ad pricing, placement and targeting information, any of our preexisting data used by us pursuant to an IO, any data gathered pursuant to an IO that allows identification of any Yahoo! Entity, and data entered by users on any Yahoo! Site. A party will not, without the other party’s prior written consent: (i) disclose to any person or entity any Confidential Information, other than to employees and Authorized Users who are bound in writing by confidentiality restrictions who have a legitimate need to know such Confidential Information in connection with the Agreement, or (ii) use any Confidential Information other than for the purpose for which it was disclosed. You may not issue any public statement about the Agreement without our prior written consent.
- REPRESENTATIONS. In addition to the representations in Section 5 above, you represent, warrant, and covenant that : (i) you have the right and/or authority to enter into, and to grant the rights granted in, the Agreement, (ii) you are a business, not a consumer, (iii) all Advertiser Materials are free of viruses and/or other computer programming routines that may damage, interfere with, or expropriate any Yahoo! Entity system data, (iv) a click on your ad will not cause damage to a user’s computer, download a software application, change a user’s settings, or create a series of sequential, stand alone advertisements (including by pop-up or pop under window), (v) you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities, (vi) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of a Program, and (vii) your Advertiser Materials, all products and services referenced therein, the website(s) to which the ads link, any tools or code you make available in connection with a Program, and/or any act or omission by you relating to your participation in the Distribution Network: (a) shall comply with applicable laws and regulations (including without limitation privacy, defamation and consumer laws) and the Policies, (b) shall not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any third party, and (c) shall not breach any duty toward, or rights of, any third party, including rights of publicity and/or privacy.
- INDEMNIFICATION. You will indemnify, defend, and hold harmless the Yahoo! Entities from all losses, liabilities, and expenses (including reasonable legal fees) suffered or incurred by reason of any actual or alleged claims, proceedings or suits based on or arising out of your Advertising Materials, your use of the Programs, any act or omission by you or your Authorized Users, or the breach of your representations, warranties or covenants in the Agreement. We have the right to participate in any defense under this Section with counsel of our choosing, and 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; LIMITATION OF LIABILITY. THE PROGRAMS, CODE, DISTRIBUTION NETWORK, SYSTEMS, YAHOO! SITES, AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY OR ON BEHALF OF YAHOO! PURSUANT TO THE AGREEMENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE (ON BEHALF OF ALL YAHOO! ENTITIES) AND YOU DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 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 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. IN NO EVENT WILL ANY YAHOO! ENTITY BE LIABLE IN CONTRACT, TORT OR OTHERWISE 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 ANY CLICKS AND/OR IMPRESSIONS MADE BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.
- TERMINATION. You may only cancel ads in an IO upon 5 business days’ prior written notice, except that (i) you may cancel Pre-emptible Ads upon 2 business days’ prior written notice, (ii) you may only cancel front page, roadblocks and takeover ads upon 10 business days’ prior written notice, and (iii) ads related to a custom program (including a microsite,contest, sponsorship etc.) may not be canceled by you.
Notwithstanding anything contained in the Agreement to the contrary, we may at any time for any reason (including nonpayment) terminate the Agreement suspend or limit your participation in the Distribution Network and/or any Program, and modify or discontinue offering any Yahoo! Site, products or services. Your outstanding payment obligations become immediately due and payable under any of these circumstances. None of the Yahoo! Entities shall have any liability for such termination, suspension, or discontinuation.
Section 3, the second, third, and fifth sentences of Section 4, Sections 5 and 6, the second paragraph of Section 7 and Sections 8 through 13 of these MTCs and additional survival terms set out in any Program Terms will survive expiry or termination of the Agreement.
- OTHER. The Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein, without giving effect to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. You and we consent to the exclusive jurisdiction of the courts of the province of Ontario with respect to any legal proceeding arising in connection with the Agreement. The Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all prior agreements and communications regarding the subject matter contained herein. No terms or conditions other than those in the Agreement will be binding on us unless expressly agreed to in writing by us. In the event of a conflict between the MTCs and an IO, the conflict shall be resolved to the extent necessary to do so according to the following order of precedence: (1) IO provided that: (i) it has been properly executed on behalf of both you and us by duly authorized representatives; and (ii) any variation of the MTCs by such IO shall only apply to the campaign to which that IO relates; and (2) the MTCs. The failure or delay of Yahoo! to enforce any provision of the Agreement or other rights or remedies under law shall not constitute a waiver or limitation of Yahoo!'s rights to enforce any provision of the Agreement or to exercise any other such rights or remedies. The provisions of the Agreement are severable, and if any provision of the Agreement is held invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of the remainder of the Agreement. You and we are independent contractors and nothing in the Agreement will be construed to create evidence, or imply any agency, employment, partnership, or joint venture between you and us. You expressly acknowledge and agree that each of the Yahoo! Entities (other than Yahoo!, a direct party to the Agreement) are third-party beneficiaries to the Agreement, as its interests apply. You may not assign, sublicense, or transfer the Agreement or any right or duty under the Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of the foregoing will be void and of no force or effect. We and our subsequent assignees may assign, subcontract, delegate, sublicense, or otherwise transfer from time to time the Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, including our affiliates.
We may change the terms of the Agreement at any time without liability by posting them on the Yahoo! Sites or, at our discretion, by sending an email to the address you provided to us. You must ensure your contact and account information is current and correct, and you must promptly notify us in writing of any changes to such information. You must send notices to us by email to your designated Yahoo! contact with a copy to Yahoo!’s Legal Department at ca-legalnotices@yahoo-inc.com. Your participation in the Distribution Network after such notice shall be deemed to be continued acceptance by you of the then current Agreement. If you do not agree to any such change, you must immediately: (i) notify Yahoo! in writing; and (ii) stop using the Yahoo! Sites and any Programs.
Except for your payment obligations, neither we nor you will have any liability under the Agreement by reason of any failure or delay in the performance of our or your obligations on account of strikes, riots, terrorism, Internet and/or electrical outages, natural disasters, acts of God, war, governmental action, or any cause that is beyond our or your reasonable control.
We and you agree that this Agreement and any documents ancillary thereto be drawn up in English only but without prejudice to any such documents or instruments which may from time to time be drawn up in French only, or in both French and English. Nous et vous au présent confirment leur volonté que le présent contrat de même que tous les autres documents s'y rapportant soient rédigés en anglais seulement, mais sans préjudice cependant à tous tels documents qui pourraient à l'occasion être rédigés en français seulement, ou en français et en anglais.
