These terms form part of the Lead Generation Insertion Order (the “IO”) between Yahoo! and Advertiser.
Service. Yahoo! may serve ads (the “Lead Generation Advertisements”) on website pages that are owned, operated, authorized, or hosted by or for Yahoo! and its affiliates (the “Yahoo! Company Websites”) and the network of advertising channels, including all forms of media, applications, and devices, through which Yahoo! distributes ads, whether on or off the Yahoo! Company Websites (the “Yahoo! Distribution Network”), in its discretion. When a user clicks on a Lead Generation Advertisement, that user will be directed to Advertiser’s form (the “Form”), which will be created and hosted by or for Yahoo!, that prompts the user to provide information that may include the user’s first name, last name, email address and telephone number. The information that the user provides is the “Lead,” and any information that personally identifies any individual user is “PII”. Yahoo! will transmit the Leads to the URL provided by Advertiser on the IO.
Provision of Ad Content. Content for the Lead Generation Advertisements and the Form, which content may include trademarks, service marks, logos and other distinctive brand features of Advertiser (the “Ad Content”) will be provided to Yahoo! by or on behalf of Advertiser. All Ad Content is subject to Yahoo!’s approval and must comply with Yahoo!’s then current specifications and advertising policies, including the lead-time prior to display of the Lead Generation Advertisement. Yahoo! may reject Ad Content and/or stop displaying any Lead Generation Advertisement at any time, for any or no reason (including, but not limited to, a belief that the display of Ad Content may subject Yahoo! to liability).
License; Ownership. Advertiser hereby grants to Yahoo!, and its third-party service providers and third parties distributing the Lead Generations Advertisements via the Yahoo! Distribution Network (“Yahoo! Entities”), a non-exclusive, worldwide, royalty free, fully paid license to use, reproduce, copy, modify, encode, store, archive, distribute, transmit, translate, publish and publicly display the Ad Content in connection with the Lead Generation Advertisements and the Form on the Yahoo! Distribution Network. As between Yahoo! and Advertiser, Advertiser owns the Leads subject to the limitations set forth herein; provided that Advertiser hereby provides Yahoo! and its affiliates with a worldwide, royalty free, fully paid license to use the Leads.
Terms of Payment. Advertiser agrees to pay Yahoo! for any Leads delivered to Advertiser during each month of the term of the IO. Yahoo!’s measurement of delivered Leads is the sole, official and definitive measurement under this IO. Advertiser may elect to pay by credit card or, subject to approval under the Yahoo! credit policy, to receive an invoice. If Advertiser receives an invoice, payment shall be made to Yahoo! within 30 days of the date of such invoice. Yahoo! reserves the right to charge a late fee of the lesser of 1.5% per month or the maximum rate allowable by law in the event that Yahoo! does not receive payment by the date payment is due. Advertiser will pay Yahoo!’s reasonable expenses, including attorneys’ fees and costs, incurred in collecting past due amounts. Yahoo! may suspend performance under any agreements with Advertiser if Advertiser does not make timely payment or if Advertiser’s credit becomes impaired.
Cancellation, Assignment or Resale. Advertiser may not (1) cancel the IO or (2) resell, assign or transfer any of Advertiser’s rights under the IO. In addition, subject to the license granted to Yahoo! in Section 3 hereof, the Leads are for Advertiser’s use only, and Advertiser may not disclose, sell, license or otherwise transfer any of the Leads. Yahoo! may terminate the IO without liability if Advertiser attempts to resell, assign or transfer any of its rights hereunder, or breaches any obligation hereunder and such breach is not cured within ten (10) days of receipt of notice of such breach. Yahoo! may terminate the IO for convenience with notice to Advertiser. Sections 4, 7-13 and the last sentence of this Section 5 shall survive termination or expiration of the IO.
Reports. If requested by Advertiser, Yahoo! will provide a Lead detail report that includes the following: Lead Id, Time Stamp of Lead ID, Confirmation stamp from Advertiser’s system of Leads received and total number of Leads. Such reporting will be provided on a mutually agreed to basis.
Privacy Policies. The Form, and any other pages on which Leads are collected, shall contain a link to, and be governed by, Yahoo!’s and Advertiser’s respective privacy policies.
Security. Advertiser will have, at a minimum, industry standard security protocols in effect to protect the Leads and any PII.
Indemnification. Advertiser will indemnify, defend and hold harmless the Yahoo! Entities and its and their affiliates and their employees, representatives and agents against any claim, demand, action investigation or other proceeding (“Claim”), including all damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees and costs) to the extent the Claim is based on or arises out of (i) the Ad Content or any material, product or service of Advertiser’s that appears on any web page linked to from the Lead Generation Advertisement and (ii) any breach of Section 7, 8 or 9 of this IO.
Limitations. THE SERVICES ARE PROVIDED "AS IS" AND YAHOO! MAKES NO, AND EXPRESSLY DISCLAIMS ANY, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. YAHOO! SHALL NOT BE LIABLE TO ADVERTISER (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM ADVERTISER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA, ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER YAHOO! WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. IN ANY EVENT, YAHOO!’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS IO, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY ADVERTISER TO YAHOO! HEREUNDER.
Confidential Information. “Confidential Information” means any information disclosed to Advertiser by Yahoo!, either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that Advertiser can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Advertiser by Yahoo!, (ii) becomes publicly known and made generally available after disclosure to Advertiser by Yahoo! other than through Advertiser’s action or inaction, or (iii) is in Advertiser’s possession, without confidentiality restrictions, prior to the time of disclosure by Yahoo!, as shown by Advertiser’s files and records. Advertiser shall not at any time: (i) sell, license, or transfer any Confidential Information, (ii) disclose or otherwise make available to any person or entity any Confidential Information (other than to those of Advertiser’s employees who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in this IO and who have a legitimate need to know such Confidential Information in connection with this IO), or (iii) access, use, reproduce, or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to Advertiser and in accordance with this IO. Advertiser agrees to take all measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information. If required by law to disclose Confidential Information, Advertiser may do so provided that: (a) Advertiser gives Yahoo! prompt written notice of such requirement prior to such disclosure, (b) at Yahoo!’s request, Advertiser assists Yahoo! in obtaining an order protecting the Confidential Information from public disclosure, and (c) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Except for the Leads, all Confidential Information shall remain Yahoo!’s personal property, and all documents, electronic media, and other items containing or relating to any Confidential Information shall be delivered to Yahoo!, destroyed, or uninstalled immediately upon Yahoo!’s request, or upon termination of this IO. You may not issue any press release or other public statement regarding this IO without Yahoo!’s prior written consent.
General Terms. The IO is governed by and construed in accordance with the laws of the State of California except its conflicts of law principles, and each party agrees to personal jurisdiction and venue in the federal and state courts for Santa Clara County, California. If an agency is signing the IO on behalf of Advertiser, the agency is listed on the first page of the IO and represents that it has the authority to bind Advertiser to these terms and agrees to indemnify the Yahoo! Entities for any breach by agency of the IO. Yahoo! and its subsequent assignees, if any, may assign, delegate, sublicense, or otherwise transfer from time to time the IO, or the rights or obligations hereunder, in whole or in part, to any person or entity. The IO and these terms are the complete and entire agreement between the parties, and supersede any other agreements (whether written or oral) between the parties, on this subject. The IO may only be amended by a written agreement executed by an authorized representative of each party.
Version 1.0 (8/07)