INTRODUCTION AND DEFINITIONS. We provide you and, if applicable, Authorized Users, access to our rich media program (the “Program”) for your use, subject to your acceptance of and compliance with these Rich Media Terms and Conditions (the “Terms and Conditions”), and the terms and conditions of any applicable order form(s) that you or your Affiliates enter into, online or offline, that specifically references these Terms and Conditions (each, an “Order Form”) (collectively, the “Agreement”). All references to “ads” in the Agreement include all ads that are created or served through the Program, including your client’s ads. In the Agreement, (i) “we,” “us,” and “our” mean Yahoo! Inc. (“Yahoo!”) (ii) a “Yahoo! Company” means Yahoo!, Overture Services, Inc. (“Overture” or “Yahoo! Search Marketing”), or another Affiliate of Yahoo! or Overture, (iii) “Yahoo! Entities” are the Yahoo! Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, and third-party service providers, (iv) “you” and “your” mean the entity signing below, the company name you provided during the online registration, or the company name in an Order Form, and any of its Affiliates that execute an Order Form for the Program, (v) “Yahoo! Code” is proprietary software code and related tools that we may offer to you in connection with the Program, and which are part of the Program; (vi) “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, and (vii) “Authorized Users” means your agents, representatives, contractors, account managers, and any person or entity acting or apparently acting on your behalf, and your Affiliates that access the Program without executing an Order Form. Terms used but not defined herein will have the meanings given to such terms in the Order Form. Terms used in any Order Form but not defined therein will have the meanings given to such terms in these Terms and Conditions. All definitions shall apply both to their singular and plural forms, as the context may require.
PAYMENT. You agree that, in addition to any set up fees, you will be charged for the monthly, serving, overage, and other fees specified in an Order Form. Each invoice shall be for the greater of (a) charges incurred or (b) the minimum fee set forth in the Order Form, and the minimum fee shall apply for any partial month and will not be pro-rated. We reserve the right to change the pricing, fees, and minimum volume commitments in an Order Form at any time upon thirty (30) days written notice to you. You agree to pay us all charges to your account in the currency indicated by us. You agree that our measurements are the definitive measurements under the Agreement and will be used to calculate your charges. Unless you prepay, we will submit an invoice to you at the e-mail or mailing address (at our discretion) on the Order Form or as required by applicable law, and you agree to pay such charges, without offset or deduction, within 30 days of the invoice date. We shall determine whether you may be and/or remain on an invoice basis, and we may require payment by credit card. If we agree to your request to send an invoice to a third party on your behalf, you agree that such third party will timely pay the invoice, and in the event such party does not pay the invoice, you are obligated to immediately pay all such amounts. Further, if we do not receive timely payment (including if your financial institution does not honor your check/cheque or we receive a chargeback), you shall pay all amounts due on your account upon demand and, in addition to other rights, we may suspend performance and/or terminate any agreement with you. All payments of service fees, unused promotional credits, and initial deposit(s) are non-refundable and our property. You agree to submit any disputes about charges to your account(s) to us in writing within 60 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge. If you fail to make payment as set forth herein, you will pay (i) a late fee equal to 1% monthly (or the highest amount allowed by law if less than 1% monthly) of all past due charges, and (ii) all reasonable expenses (including attorneys’ fees) incurred by us in collecting past due charges. Charges and fees do not include any applicable sales, use, value-added, withholding, excise and any other similar taxes, or government charges (exclusive of our income taxes), which are payable by you and are in addition to any amounts due to us hereunder. Accounts with no activity for more than 24 months may be closed by us and will be assessed an account closing fee not to exceed the lesser of $25 U.S. (or its equivalent), or the balance in the applicable account. If a balance remains (other than unused promotional credits and initial deposits), we will attempt to refund any portion of such balance that may be owed to you. In the event we are unable to refund any such balance using your contact information on file with us, we will dispose of the credit balance pursuant to the Agreement and our policies and procedures.
ACCESS. You agree that you will not: (i) use any automated means, including agents, robots, scripts, or spiders, to access, monitor, scrape, or manage your account with us, or to access, monitor, scrape, or copy the Program 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 (for example, third-party tools approved by us), (ii) interfere or attempt to interfere with the proper working of the Program or Yahoo! Company systems, (iii) use or combine the Program with software offered under an open source license which would create any obligations with respect to the Program contrary to the Agreement, or grant to any third party any rights to or immunities under our intellectual property or proprietary rights in the Program, nor (iv) use the Program in connection with any ultrahazardous activity, or any other activity for which its failure might result in serious property damage, or death or serious bodily injury. The Program, including formatting, passwords, and access codes related to your account may not be used by, nor made available to, any third party, except Authorized Users. You agree to promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us, such as 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. We reserve the right to modify or discontinue offering the Program or any part thereof. Your Information (defined below) and ads must comply with our policies and specifications, which we may change from time to time in our discretion.
YOUR PROGRAM OBLIGATIONS. You agree that we are not responsible for any aspect of your or third-party ads. You represent, warrant, and covenant that all information you provide (including our suggestions) in connection with the Agreement and/or in an ad, including all creative, titles, descriptions, trademarks, listings, abstracts, keywords, ad target options, domain names, content of ads, data, data feeds, and URLs (each of the foregoing, individually and collectively, “Information”) is, and will be updated to remain, current and accurate. In order to participate in the Program, you grant the Yahoo! Entities a non-exclusive, royalty-free, worldwide license in connection with the Program to use, copy, adapt, reformat, recompile, manipulate, communicate by telecommunication, and/or modify any part of the Information for public performance, public display, and distribution. You agree that none of the Yahoo! Entities shall have any liability for your ads or Information. You agree to notify us in writing at least five (5) days prior to the launch of any campaign using the Program. This notice must include the total number of impressions to be delivered via the Program and the flight dates for that campaign. You hereby grant us the right to use your name and logo, including for display on our website(s), to disclose you as one of our authorized publishers that use this Program. You also acknowledge that your website supports the rich media ad formats offered through the Program and specified at the Program website (or other location designated by us). Furthermore, you agree to undertake a periodic review to confirm that your website supports the rich media ad formats specified by us.
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 the 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) a click on any ad used in connection with this Program will not: cause damage to a user’s computer, download a software application(s), change a user’s settings or create a series of multiple, sequential, stand-alone advertisements (including by pop-up window or pop-under window), (vi) you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent (as determined by us) marketing activities relating to the Program, (vii) the Information, the ads (including products and services referenced therein), the website(s) to which the ads link, all emails, newsletters, and other materials and technology in connection therewith, any tools or code you use or make available in connection with the Program, and/or any act or omission by you relating to the Program or the Yahoo! Entities: (1) do not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, or Yahoo! Company policies or guidelines (collectively, “Laws”), (2) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (3) do not breach any duty toward, or rights of, any person or entity, including rights of publicity and/or privacy, (4) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, and (5) 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 the Program, 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 Program, (x) you will comply with any trade sanction, or import regulation that applies to your use of the Program and agree to obtain all necessary licenses to use, export, re-export, or import the Program as applicable, and (xi) you will not provide access to the Program, 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 agree to 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 and/or ads, your or Authorized Users’ use of the Program, or Yahoo! Company system, your website, or your or Authorized Users’ breach of the Agreement. You agree to be 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. YOU EXPRESSLY AGREE THAT THE PROGRAM, RICH MEDIA ANALYTICS, YAHOO! CODE, YAHOO! COMPANY SYSTEMS, AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THAT 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, SHALL 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 SHALL 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 AGREE THAT YOU WILL NOT HOLD US RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT.
TERMINATION. At any time, for any or no reason, you or we may terminate the Agreement and/or your participation in the Program, and we may suspend or limit your participation in the Program or any part thereof. The Yahoo! Entities shall not have any liability regarding the foregoing decisions. Notwithstanding the foregoing, unless the Agreement is terminated due to a breach by you, we will continue to provide you access to the Program for thirty (30) days after the date of termination. Except as detailed in the prior sentence, upon any termination of the Agreement, you will immediately cease accessing and using the Program and Rich Media Analytics. Upon termination, suspension, or discontinuation of the Program or your participation therein, your outstanding payment obligations incurred under the Program will become immediately due and payable. Sections 2, 3 (second, fourth, and fifth sentences only), and 6 (third, fourth, and seventh sentences only), and 7 through 14 of these Terms and Conditions, the defined terms of the Agreement, and any applicable provisions specified in an Order Form, shall 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. All notices to us shall be sent via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, Yahoo! Inc., 701 First Avenue, Sunnyvale, California 94089.
CHOICE OF LAW. The terms of the Agreement and any dispute relating thereto or between you and us shall be governed by the laws of the State of California, without regard to conflict/choice of law principles. You and we expressly agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, or another location designated by us. Any claim against us shall be adjudicated on an individual basis and shall not be consolidated in any proceeding with any claim or controversy of any other party.
The Rich Media Terms and Conditions were last updated on November 1, 2007.