1.0 ACKNOWLEDGMENT AND ACCEPTANCE
1.1 These Yahoo! Product Submit Terms of Service ("TOS") are between you ("you" or "your") and Yahoo! Inc. and its affiliates ("Yahoo!") and consists of the most recent versions of the terms and conditions of the TOS, the Yahoo! Terms of Service, and Yahoo!'s applicable policies and guidelines for the Yahoo! Product Submit service (the "Guidelines" as further specified below in Section 3.1) (all together, the "Terms"). The Yahoo! Terms of Service and the Guidelines are incorporated herein by reference. Any person or entity acting on your behalf shall also be bound by the Terms and you agree to be responsible for such person's or entity's actions.
1.2 BY CLICKING THE "I AGREE, PLACE ORDER" BUTTON, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER, THAT YOU HAVE PROVIDED TRUE, ACCURATE, CURRENT AND COMPLETE INFORMATION (INCLUDING AN ACCURATE EMAIL ADDRESS) AS PROMPTED BY THE SERVICE REGISTRATION FORM, THAT YOU HAVE THE POWER AND AUTHORITY TO ENTER INTO AND PERFORM UNDER THE TERMS AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND TO COMPLY WITH ALL APPLICABLE LAWS, RULES, REGULATIONS AND ORDERS.
1.3 Yahoo! reserves the right, in its sole discretion, to update, change, add or remove all or part of the Terms from time to time with or without notice to you. You can find the most recent version of the TOS at http://info.yahoo.com/legal/us/yahoo/productsubmit/productsubmit-168.html, the most recent version of the Guidelines at the URLs listed in Section 3.1 and the most recent version of the Yahoo! Terms of Service at http://info.yahoo.com/legal/us/yahoo/utos/utos-173.html. Regardless of whether Yahoo! has provided you notice, your continued use of the Service (as defined below) following Yahoo!'s notice or posting of changed Terms will constitute your acceptance of such changes. It is your responsibility to check regularly for changes to the Terms and ensure that any contact, billing or payment information you provide to Yahoo! is updated and correct.
2.0 DESCRIPTION OF THE YAHOO! PRODUCT SUBMIT SERVICE
2.1 Yahoo! Product Submit (the "Service") is a service that enables you to submit your product information ("Product Feed") for consideration of inclusion in a Yahoo! database that may be searched. You agree that Yahoo! may display the Product Feed or portions thereof in forms such as search results, product comparisons, reviews and other placements that may be made available from time to time (each a "Product Listing"). Product Listings may be made available for distribution, display and use on the Yahoo! network and various Yahoo! authorized or Yahoo! affiliate (including Overture Inc.) authorized third party networks (the "Yahoo! Distribution Network Entities"). Provision of your Product Feed and use of the Service is subject to your compliance with the Terms. For clarity, the Service is a "Service" under the Yahoo! Terms of Service.
2.2 To participate in the Service, you must have a Yahoo! ID. If you do not yet have a Yahoo! ID, you will be prompted to create one during the registration process. You are responsible for keeping your Yahoo! ID, password and other Service account information confidential. You agree to notify Yahoo! immediately of any actual or suspected unauthorized use of your Yahoo! ID, password or access to the Service.
3.0 PROVISION OF YOUR PRODUCT FEED
3.1 Your Product Feed must be submitted to Yahoo! in accordance with the data feed specifications set forth at http://productsubmit.adcentral.yahoo.com/sspi/us/spec or in accordance with other specifications that Yahoo!, in its sole discretion, deems acceptable to Yahoo!. You must comply with the Yahoo! Shopping Merchant Guidelines set forth at http://help.yahoo.com/help/us/adcentral/productsubmit/productsubmit-02.html. Products must be described in English, priced in United States dollars, and be available for shipping to the United States. Products in your Product Feed will be categorized into the appropriate Yahoo! product category either by you or by Yahoo!, provided that, Yahoo! reserves the right at any time to categorize or re-categorize any products, as determined solely by Yahoo! in its reasonable discretion. It is your responsibility to keep backups of all Product Feeds as Yahoo! is not responsible for the loss of any Product Feeds for any reason. Yahoo! expressly prohibits any impermissible activities through the Service or your Product Feed, including but not limited to: (a) listing products with inappropriate or inaccurate information; (b) multiple listings of identical products in the same Product Feed; (c) multiple submissions of identical Product Feeds under different Yahoo! ID's, aliases or accounts; or (d) any other fraudulent, inappropriate activity or purpose, as determined in Yahoo!'s sole discretion. Yahoo! may immediately terminate the TOS, with or without notice, if Yahoo! suspects that you are engaged in any impermissible activities through the Service. THESE CRITERIA ARE MINIMUM REQUIREMENTS ONLY, AND YAHOO!, IN ITS SOLE DISCRETION, MAY CONSIDER OTHER CRITERIA BEFORE ACCEPTING OR REJECTING A PRODUCT FEED.
3.2 You hereby grant to Yahoo!, its affiliates and Yahoo! Distribution Network Entities a non-exclusive, worldwide, royalty-free license to use, reproduce, reformat, publicly display, publicly perform and distribute over any medium your Product Feed, Product Listings or portions thereof (including any content, images, technology, trademarks, brand features contained therein) during the Term for the purposes of: (a) displaying and promoting you, your Product Feed and Product Listings; and (b) providing features and functionality of Yahoo!, its affiliates, and the Yahoo! Distribution Network Entities, including but not limited to the right to incorporate the Product Feed into a searchable database. Yahoo! will have the right, but not the obligation, to review your Product Feed. Yahoo! reserves the right to immediately cancel or reject, without notice, any Product Feed, Product Listing or discontinue a type of Product Listing, or suspend your access to the Service and terminate the TOS and your Yahoo! ID (including email), at any time for any reason whatsoever (including but not limited to the belief by Yahoo! that the Product Feed or placement of a Product Listing may subject Yahoo! to criminal or civil liability). Nothing herein will limit Yahoo!'s right to use any information or data that is in the public domain or that is publicly accessible.
3.3 You represent and warrant to Yahoo! that: (a) you have and will have at all times, all right, title and interest necessary to grant any and all licenses hereunder for the purposes contemplated by these Terms; (b) nothing in your Product Feed is false, misleading, defamatory, libelous, slanderous, illegal or threatening; (c) you have all necessary rights, permits and licenses under all applicable laws, rules and regulations to promote, offer for sale, sell, and ship all products or services available from your site regardless whether such products or services are included in your Product Listing or Product Feed; (d) you will not engage in any impermissible activities; (e) you are solely responsible for all customer service, order fulfillment, product returns, or payment of taxes or charges associated with any products or services that link from a Product Listing or that are available from your site; and (f) your Product Feed (including all content, images, trademarks, and technology contained therein) and all products, services and materials available from your site will comply with all applicable laws, rules and regulations, the TOS, the Guidelines and the Privacy Policy (as defined in Section 6 below) and will not infringe the rights of any third party, including any intellectual property rights.
3.4 You acknowledge and agree that Yahoo! has the right, at any time and for any reason, to redesign or modify the organization, structure, specifications, "look and feel," navigation, guidelines, features and other elements of the Service and any section of the Yahoo! network or Yahoo! Distribution Network Entities' network, including the manner in which your Product Listing may be displayed, delivered or linked to or from.
3.5 By using a keyword, title, description, link, listing and/or other element of a Product Listing that may be suggested by Yahoo!, you represent, warrant and covenant that such keyword, title, description link, Product Listing or other element thereof is authorized by you and in compliance with these Terms. You agree that Yahoo! shall not have any liability for any Product Listings or Product Feeds or for any changes that you make thereto based on suggestions by Yahoo!.
4.0 PAYMENT TERMS
4.1 By clicking on the "I AGREE, PLACE ORDER" button on the order confirmation form, you authorize Yahoo! to charge your credit card the amount you designate, but in no event less than the then current minimum charge. This amount will be credited to your Service account (your "Account") and no part of this amount, or any other amounts funded to your Account, is refundable except pursuant to Sections 4.6, 4.7 or 5.2 below. YOU ACKNOWLEDGE AND AGREE THAT THE CHARGE OF YOUR CREDIT CARD DOES NOT IN ANY WAY GUARANTEE: (a) THE ACCEPTANCE OR DISPLAY OF YOUR PRODUCT FEED OR PORTIONS THEREOF IN ANY FORM; (b) CLICKS ON A PRODUCT LISTING; OR (c) ANY OTHER MEASURE OF PERFORMANCE OR SUCCESS.
4.2 You agree to pay Yahoo! the applicable fee for the corresponding Yahoo! Shopping product category each time a user clicks on your Product Listing, as solely measured by Yahoo! (a "Click"). Yahoo! reserves the right to change the applicable fees at any time with or without notice. Yahoo! will deduct all Clicks and other applicable charges, including any applicable taxes, from your Account approximately once per hour. Clicks that occur after you have submitted an updated Product Feed, but prior to Yahoo!'s implementation of the update will be charged to your Account. Product Feed updates may take Yahoo! up to twenty-four (24) hours to implement.
4.3 Payment for Clicks will be based on which payment plan you choose for your Account. If you select the "Manual" plan, then you must periodically re-authorize Yahoo! to charge your credit card at least the then current minimum charge or the display of your Product Feed may be suspended by Yahoo! when your Account balance reaches zero (US$0.00) dollars. If you select the "Automatic" plan, then you authorize Yahoo! to automatically charge your credit card each time your Account balance reaches the level you designate on the payment plan selection form. If you select the "Monthly" plan, then you authorize Yahoo! to automatically charge your credit card on a recurring basis each month, on the date you last selected the Monthly plan, the amount necessary to bring your Account balance to the level you designate on the payment plan selection form. If your Account balance reaches zero (US$0.00) dollars under the Monthly plan, then the display of your Product Feed may be suspended by Yahoo! until the following scheduled charge of your credit card or until you manually authorize a charge of your credit card. With either the Automatic or Monthly payment plan, you: (a) must keep your credit card information current; (b) authorize Yahoo! to store your credit card and billing information; (c) authorize Yahoo! to automatically charge your credit card the renewal charge you designate on the payment plan selection form (but in no event less than the then current minimum charge); and (d) agree that your authorization is valid until the termination of the TOS by you or Yahoo! or until your credit card expires. If at any time Yahoo! is unable to successfully charge your credit card the renewal charge you designate or the charge is refused, the display of your Product Feed may be suspended by Yahoo! when your Account balance reaches zero (US$0.00) dollars.
4.4 If the display of your Product Feed is suspended pursuant to Section 4.3 above, you will need to re-authorize Yahoo! to charge your credit card at least the then current minimum charge to re-enable the display of your Product Feed. If the funds in your Account are insufficient to cover any amounts owed by you to Yahoo! for the Service, you agree that you: (a) are responsible for such amounts; (b) will pay any such amounts immediately upon being notified such amounts are due and owing; and (c) are responsible for all reasonable expenses (including attorneys' fees) incurred by Yahoo! in collecting such amounts.
4.5 You acknowledge and agree that the usage statistics provided by Yahoo! are the official, definitive measurements of Click delivery. No other measurements or usage statistics (including yours or a third party's) will be accepted by Yahoo! or have bearing on this TOS.
4.6 You may request a refund of all or part of the funds remaining in your Account after all charges and fees accrued for the Service have been charged against your Account by completing the refund request process at http://add.yahoo.com/fast/help/us/adcentral/cgi_account. Your Yahoo! ID and password will be required for you to complete the online refund request process, and it is your responsibility to remember these. For clarity, you will not receive a refund for any amounts owed or paid by you to Yahoo! for Clicks or for other charges, if any, but you will receive a refund of your remaining Account balance reflecting unused, prepaid fees. It may take up to four (4) weeks to process your refund.
4.7 In addition, if you have not clicked on any portion of the Service for a period of at least six (6) months, then Yahoo! will refund all remaining unused, prepaid fees in your Account to the credit card used to fund the Account and terminate the TOS.
5.0 TERM AND TERMINATION
5.1 The initial term of the TOS will be for a period of one (1) month commencing on the date that you click the "I AGREE, PLACE ORDER" button to the TOS and will automatically renew for successive one (1) month periods, unless terminated by either party according to the terms of the TOS (the "Term"). Either party may immediately terminate the TOS at any time, in its sole discretion; provided, if Yahoo! is the terminating party, then notice will be provided to you, subject to Section 3.1 or 5.3, in the manner described in Section 13 and the termination will be effective upon your receipt of such notice. If you are the party terminating, then you must complete the online process for termination set forth at http://add.yahoo.com/fast/help/us/adcentral/cgi_account and termination will be effective when your request is completely processed. Your Yahoo! ID and password will be required for you to complete the online termination process, and it is your responsibility to remember these.
5.2 Upon termination of the TOS, your Product Feed will be deleted and the funds remaining in your Account, if any, after all charges and fees accrued for the Service have been charged against your Account, will be refunded to the credit card number used to fund your Account. It may take up to four (4) weeks to process your refund and up to twenty-four (24) hours to delete your Product Feed. You will be responsible for payment of all Clicks that occur up to the deletion of your Product Feed. You authorize Yahoo! to keep and use during and after the Term, in accordance with Section 6 below, a record of any information related to your use of the Service.
5.3 Notwithstanding anything to the contrary herein, Yahoo! may, but has no duty to, immediately terminate the TOS with or without notice, and remove a Product Listing or Product Feed if Yahoo! in its sole discretion concludes that: (a) you have provided false information as part of your registration or billing information (including credit card related information); (b) you are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services in conjunction with a Product Listing or Product Feed; (c) you have violated the TOS, the Guidelines, the Privacy Policy; (d) you are engaged in activities or sales that may damage the rights of Yahoo! or others; or (e) your credit card company, financial institution or you have or have attempted to charge back or reverse any fees paid or given to Yahoo! hereunder. Any termination under this section 5.3 will take effect immediately without any opportunity to cure.
5.4 If your Yahoo! ID is terminated for any reason, the TOS and your access to the Service will also be terminated, and you will receive a refund pursuant to Section 5.2.
5.5 The provisions of Sections 3.3, 5.2, 6, 8, 9, 10, 11, 12, 13 and 14 and this section 5.5 will survive any termination or expiration of the TOS.
6.0 PRIVACY AND COMMUNICATIONS.
6.1 Your registration information is subject to our privacy policy as set forth at http://privacy.yahoo.com (the "Privacy Policy"). In accordance with the Privacy Policy, you agree that Yahoo! may share data related to your use of the Service, including any Yahoo! registration or other related information, with Overture Inc. or other Yahoo! affiliates and their contractors or agents for the purpose of supporting your use of the Service and to offer or provide you with other related services from Yahoo! or Yahoo! affiliates.
6.2 As part of your registering for the Service, you agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding your Account, updates to the Service and your Product Feed. In order to opt- out of receiving such communications you must cancel the Service.
6.3 As part of the Service, you agree to receive the first of an ongoing series of product update communications related to the Service ("Product Updates"). Product Updates may include information about new or updated product features, enhanced functionality, new pricing categories, additional distribution opportunities, in addition to other related products and services. Upon receipt of this first Product Update, you will have the opportunity to opt-out of future Product Updates by clicking on unsubscribe links or by following unsubscribe instructions within the communication. Please note that you may also visit your Yahoo! Marketing Preferences page at any time to manage your communication preferences for other optional communication categories.
7.0 RATINGS. Please note that Yahoo! enables users to rate and provide written reviews on you and your products, which will be publicly displayed. By participating in the Service, you agree to be subject to such rating and review features. If you wish not to be rated and reviewed, then you must cancel the Service.
8.0 CONFIDENTIALITY. Except as otherwise expressly provided herein, each party agrees not to disclose Confidential Information of the other party without prior written consent. "Confidential Information" means any confidential, proprietary or trade secret information relating to the Terms or disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") during the Term including the calculation of fees, and any other business, financial or technical information that is not (a) disclosed in public materials or otherwise in the public domain through no fault of the Receiving Party; (b) lawfully obtained by the Receiving Party from a third party without any obligation of confidentiality; (c) lawfully known to the Receiving Party prior to disclosure by the Disclosing Party; (d) independently developed by the Receiving Party; or (e) required or reasonably advised to be disclosed by law as long as the Receiving Party affords the Disclosing Party a reasonable opportunity to seek protective legal treatment of the Confidential Information.
9.0 INDEMNITY. You agree to indemnify, defend, and hold harmless Yahoo!, and its subsidiaries, affiliates, officers, directors, shareholders, employees, agents, and Yahoo! Distribution Network Entities from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your use of the Service; (b) the submission, acceptance or rejection of your Product Feed; (c) the publication of a Product Listing; (d) any content, images, material, product or service of yours to which users can link through the Product Listing; (e) any alleged violation of the TOS, the Guidelines, or the Privacy Policy; or (f) any alleged violation of any rights of others related to your use of the Service, your Product Feed, or the publication of your Product Feed or portions thereof (including without limitation, any claim of patent, trademark or copyright infringement, defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices). Yahoo! reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, which will not excuse your indemnity obligations.
10.0 DISCLAIMER OF WARRANTIES AND LIABILITIES. THE SERVICE, THE YAHOO! NETWORK AND THE YAHOO! DISTRIBUTION NETWORK ENTITIES' SITES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER THE TOS, GUIDELINES, PRIVACY POLICY, YAHOO! TERMS OF SERVICE NOR ANY DOCUMENTATION FURNISHED UNDER THEM ARE INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE.
11.0 LIMITATION OF LIABILITY. YAHOO!, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND YAHOO! DISTRIBUTION NETWORK ENTITIES WILL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF YAHOO!, ITS AFFILIATES OR YAHOO! DISTRIBUTION NETWORK ENTITIES ARE AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM YOUR USE OF OR INABILITY TO USE THE SERVICE, YAHOO!'S ACCEPTANCE, REJECTION, REMOVAL, OR CANCELLATION OF A PRODUCT LISTING OR PRODUCT FEED, PUBLICATION OF A PRODUCT LISTING OR PRODUCT FEED, USERS CLICKING ON A PRODUCT LISTING AND ACCESSING THE LINKED WEB SITE, OR USERS RATING OR PROVIDING PUBLICLY DISPLAYED REVIEWS ON YOU OR YOUR PRODUCTS. YAHOO!'S, ITS AFFILIATES' OR A YAHOO! DISTRIBUTION NETWORK ENTITY'S LIABILITY TO YOU WILL NOT, FOR ANY REASON, INDIVIDUALLY OR IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO YAHOO! UNDER THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 OWNERSHIP. You acknowledge and agree Yahoo! is the exclusive owner of the Yahoo! network and the Service, including, without limitation, any and all intellectual property or proprietary rights therein.
13.0 NOTICES. Any notices or communications under the TOS to you will be addressed to the electronic address specified in your Service registration form or mailing address specified in your Service registration form, as you may update such information from time to time, and will be deemed delivered immediately upon sending in the case of electronic mail and three days after mailing in the case of standard written mail.
14.0 GENERAL. The Terms and the relationship between you and Yahoo! are governed by the laws of the state of California without regard to its conflict of law provisions. Any dispute or claim arising out of or in connection with the Terms will be adjudicated either in the Superior Court of the State of California for the County of Santa Clara or the United States District Court for the Northern District of California. Yahoo!'s failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and agree that the other provisions of the Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, to the Terms, or to your Product Feed or Product Listing must be filed within one (1) year after such claim or cause of action arose or be forever barred. You may not resell, assign or transfer any of your rights or obligations under the Terms to any other entity without Yahoo's express written permission. Neither party to the Terms will be liable to the other for any delay or failure in performance under the Terms resulting directly or indirectly from acts of nature or causes beyond its reasonable control. The section titles in the TOS are for convenience only and have no legal or contractual effect. Any and all press releases and other public announcements related to your participation in the Service must be approved in advance by Yahoo! in writing. The Terms constitutes the entire agreement between the parties with respect to the Service and supersedes all previous proposals, both oral and written, representations, writings, and all other communications between the parties. In the event that the terms and conditions of the TOS conflict or are inconsistent with the Guidelines or the Yahoo! Terms of Service, the terms and conditions of the TOS will be deemed to control.