EMEA Advertising Terms and Conditions
Yahoo offers advertisers a suite of mobile, online, audio, connected television, email, digital out of home and retail advertising products that can be purchased via insertion orders or online via our ad platforms. The below terms govern the sale of or access to such advertising when you execute an insertion order or DSP cover page referencing these terms. This Advertising Agreement is effective upon the earlier of the signing of an insertion order or DSP cover page referencing these terms.
1. INTRODUCTION AND DEFINITIONS.
We provide you and, if applicable, Authorized Users, access to our products, services, exchanges, platforms, and programs (each, a “Program”) for your use, subject to your compliance with these Advertising Terms and Conditions and any applicable Program Terms (the “Advertising Terms and Conditions”). These Advertising Terms and Conditions, together with: (a) any insertion order provided by us or, where permitted, by you ( “IO”) or, if required, a rider to an IO executed by you and us (“IO Addendum”) or a campaign confirmation statement issued by us (“Campaign Confirmation Statement”), that you enter into that specifically references these Advertising Terms and Conditions, (each an “IO Document”); or (b) DSP cover page that specifically references this URL (“cover page”), are collectively the “Advertising Agreement.” In the Advertising Agreement, (i) an “Ad” is a promotional message that may consist of text, graphics, audio, video, or any combination thereof, and that is displayed on the Distribution Network for the purpose of promoting your products or services, (ii) “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, where “control” means the power to direct the management and policies of such entity, or ownership of at least fifty percent (50%) of the common stock or other voting interests of such entity, (iii) “Approved Third-Party Vendor” means an entity identified at https://scdn.uc.atwola.com/3rd_Party_Vendor_List.pdf (or a successor link) approved to serve Ads, deliver Ads, or provide campaign measurement and reporting, (iv) “Audience Data” means first-party data (e.g. mobile advertising IDs, hashed email addresses) provided by you to us directly or indirectly, to create custom audiences, for campaign optimization, or for any other purpose in connection with advertising campaigns; (v) “Authorized Users” means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf, (vi) “Device-Identified Information” or “DII” means any information that is linked to a particular browser or device, or linked to a series of browsers or devices associated through cross-device linking (if that information does not, by itself, directly identify a particular individual), and may include unique identifiers, such as a cookie or advertising identifier and IP address if such information is not linked to PII, (vii) “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which your Ads are distributed, whether on or off the Yahoo Company Sites, (viii) “Information” is, individually and collectively, all information or content you or an Authorized User provide, approve, or use (including our suggestions that you adopt) in connection with the Advertising Agreement, including without limitation and for the avoidance of doubt, all creative, images and videos in which name and likeness rights or rights of personality exist, titles, descriptions, trademarks, listings, abstracts, keywords, bids, ad target options, domain names, content of Ads, Audience Data, embedded technology (e.g. pixels, tags), and URLs, (ix) “Personally-Identifiable Information” or “PII” means personal data that by itself can directly identify a particular individual, including name, address, telephone number, email address, financial account number, or government-issued identifier, (x) “Personal Information Data” or “PID” means personal information and personal data as defined by Privacy Laws, Sensitive Information, Personally Identifiable Information, and Device-Identified Information, (xi) “Sensitive Information” means information that relates to any person’s race or ethnicity, religious or philisophical beliefs, data concerning a person’s sex life or sexual orientation, medical records, data concerning health, political opinions or affiliation, trade-union membership, government issued identifiers, genetic data, biometric data for the purpose of uniquely identifying a natural person, financial or insurance account numbers, and information related to minors, (xii) “we,” “us,” and “our” and “Yahoo” mean Yahoo EMEA Limited, a company registered in Ireland (registered number 426324) with its registered office at 5-7 Point Square, North Wall Quay, Dublin, 1, D01 CF99, Ireland, (xiii) a “Yahoo Company” means Yahoo or an Affiliate of Yahoo, (xiv) “Yahoo Entities” are the Yahoo Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, third-party service or data providers, and third parties distributing your Ads via the Distribution Network, (xv) “Yahoo Company Sites” means all the website pages or mobile applications that are owned, operated, authorized, or hosted by or for the Yahoo Companies, (xvi) “Yahoo Code” is proprietary software code (e.g. pixels, tags) that we may offer to you in connection with a Program, and which are part of such Program, (xvii) “you,” “your,” and “Advertiser” mean the company named in the applicable IO Document or cover page or accepting these terms electronically through a Yahoo system. Terms used but not defined herein have the meanings given to such terms in any IO Document, or cover page, as applicable. Terms used in any IO Document or cover page, but not defined therein, have the meanings given to such terms in these Advertising Terms and Conditions. All definitions apply both to their singular and plural forms, as the context may require. You agree that the Advertising Agreement will commence either on the date (i) we issue you with a written confirmation that your IO has been accepted by us, or (ii) we start displaying your Ad(s) on the Distribution Network or otherwise first provide you with access to one or more Programs (whichever is earlier), and will continue until terminated in accordance with its terms. You agree that the Advertising Agreement is duly formed in Ireland, the country where Yahoo is incorporated.
2. CHARGES, FEES, AND PAYMENT.
For any advertising offering we provide or Program you use, you will pay us all charges and fees you incur based on the metrics and currency set forth on the applicable IO, IO Document, cover page, or in your online account. Our measurements are the definitive measurements under the Advertising Agreement and will be used to calculate your charges. We will not charge you for any clicks or impressions that we determine are fraudulent. We will either submit an invoice to you at the email address on the IO, cover page, or in your online account, or debit the payment method associated with your account. Any portion of a charge not disputed in good faith must be paid in full within thirty (30) days of the invoice date (unless other payment terms are expressly stated in writing on the Advertising Agreement and/or on the invoice) . If we agree to your request to send an invoice to a third party on your behalf, such third party will timely pay the invoice, and if such party does not pay the invoice, you will immediately pay all such amounts. We will determine a credit limit for your spend that we may revoke or revisit at any time. You must submit to us any disputes about charges to your account(s) in writing within thirty (30) days of the invoice date, otherwise you waive such dispute and such charge will be final and not subject to challenge. If you fail to make any payment as set forth herein, (i) we may suspend access to your account and (ii) you will pay all reasonable expenses (including attorneys’ fees and third-party collection costs, if applicable) incurred by us in collecting such charges. Charges and fees do not include any applicable sales, use, value-added, digital, withholding, excise, or any other taxes, tariffs, or government charges (collectively “Indirect Taxes”), which are payable by you and are in addition to any amounts due us hereunder. We shall provide you with a valid invoice for such Indirect Taxes. All payments of service fees and unused promotional credits are non-refundable and our property. We will close accounts with no activity for more than twenty four (24) months and will assess an account closing fee not to exceed the lesser of EUR €25 (or its equivalent) or the balance in the account. Upon account closing, or for any other reason that we seek to refund money to you, we will attempt to do so by using any contact or bank account information of yours on file. If a balance remains (other than unused promotional credits), we will attempt to refund any portion of such balance that you may be owed. If we are still unable to issue a refund, we will dispose of the balance pursuant to our policies and procedures. All payments shall be made free and clear of and without deduction or withholding for any and all present and future taxes, levies and withholdings including withholding tax, stamp and documentary taxes, (collectively "Taxes") save as required by law. If you are required by law to deduct any Taxes from or in respect of any amount paid or payable hereunder, such amount shall be increased as necessary so that Yahoo receives a net amount after the deduction or withholding equal to the sum it would have received had no such deduction been required. You shall pay the deduction or withholding to the relevant taxing authority in accordance with the applicable law and promptly provide acceptable evidence of such payment.
a. 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 any Program, the Yahoo Company Sites, 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 Sites (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 Sites, Programs, or systems, or (iv) use or combine our Programs or offerings with software offered under an open source licence that creates any obligations on us, or grant to any third party any rights to, or immunities under, our intellectual property or proprietary rights in our offerings.
b. You may provide access to our offerings or systems, including your password(s) related to your account(s), solely to Authorized Users and to no other third party. 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 Advertising 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.
c. You may use data made available to you in connection with a Yahoo system, platform, or exchange, including data that may be obtained, collected, or derived as a result of any targeting parameters provided by us, solely to manage your advertising account(s) with us and you will not publish such data, create profiles of our users, augment your own user profiles, attempt to identify an end user, reverse engineer, or use such data for retargeting, except as expressly permitted through our Programs. In order to improve our offerings, we frequently test traffic, implementations, and features, and you will pay for all charges as set forth in the applicable IO, cover page, or your online account (in respect of e.g. impressions, clicks) during those tests, but not, for clarity, for the tests themselves.
d. We may redesign or modify the organization, specifications, structure, and appearance of any location where your Ads may be displayed, but such redesign will not materially affect any ongoing ad campaign. Further, we reserve the right to modify or discontinue offering any Program or part thereof. Your Information and Ads must comply with our policies and specifications, which we may change from time to time.
e. If you have been granted API Access, you will be bound by the API Access Program Terms currently located at https://legal.yahoo.com/us/en/yahoo/terms/advertising/apiaccess/index.html (or a successor site), as amended by us from time to time in our sole discretion.
4. YOUR SITE AND INFORMATION; USE OF INFORMATION.
a. The Yahoo Companies are not responsible for any aspect of your or any third-party website(s). You represent, warrant, and covenant that: (i) all your Information is, and will be updated to remain, current and accurate, and (ii) your Information is either original to you or you have secured all necessary rights and licences for its use as contemplated by the Advertising Agreement, and you are responsible for clearance of the same including, without limitation all royalties, payments, and fees (e.g. synchronization, master use and performing rights society fees) and obtaining all usage rights with respect thereto. None of the Yahoo Entities will have any liability for your Ads or Information.
b. In order to participate in any Program, you grant the Yahoo Entities a non-exclusive, royalty-free, worldwide licence in connection with all Programs to: (i) use, copy, reproduce, represent, adapt, reformat, recompile, truncate, and modify any part of the Information for public performance, public display, and distribution, (ii) access, index, and cache the website(s) to which your Ads link, or any portion thereof, by any means, including web spiders and crawlers, (iii) create and display in connection with your Ad copies of any text, images, graphics, audio, and video on the websites to which your Ads link, and (iv) distribute your Ads through the Distribution Network. Notwithstanding the foregoing, and except as set forth below, we will not reformat, truncate, or modify any Ad creative you provide us for premium display advertising. A Yahoo Entity may refuse, reject, cancel, or remove any Ad, Information, or space reservation in its discretion at any time. Your Ads may be subject to inventory availability, and the final decision as to relevance is ours. Except as may be set forth in the relevant Program Terms or on an IO (in respect of e.g. Premium Ads), we do not guarantee that your Ads will be placed in, or available through, any part of the Distribution Network, nor do we guarantee that your Ads will appear in a particular position or rank.
b. In relation to the activities contemplated by the Advertising Agreement: (i) Yahoo will comply with all applicable Irish Privacy Laws; (ii) you will comply with all applicable Privacy Laws, where “Privacy Laws” means data protection, data security, and privacy laws, statutes, directives, regulations, ordinances, or treaties (including without limitation all Applicable Data Protection Law), and any Yahoo policies or guidelines that Yahoo provides or makes clearly available to you, and (iii) to the extent that European Economic Area or UK Personal Data (as defined under the EU General Data Protection Regulation) is used, collected, or processed under the Advertising Agreement, the terms and conditions, including all Annexes, Schedules, and Exhibits thereto, currently located at https://legal.yahoo.com/ie/en/yahoo/terms/dpa/index.html (or a successor site) (the “Yahoo Data Processing Terms and Conditions” or “DPA”) apply as amended by us from time to time and are hereby incorporated into the Advertising Agreement. If there is a conflict between the DPA and any other part of the Advertising Agreement, the DPA shall prevail. Unless otherwise defined in these Advertising Terms and Conditions, capitalised terms used in this Section 6 have the meanings given to them in the DPA. You will provide a valid generic email alias, which will be monitored and used for data protection enquiries and Data Subject requests. The Yahoo generic email address is as follows: firstname.lastname@example.org.
c. You will not make available to us or our Affiliates any PII or Sensitive Information of your visitors, users, or customers in connection with any advertising offering or Program. However, by using the Programs, you and Authorized Users may provide Yahoo with PII of your employees (e.g. media or billing contacts). By entering into the Advertising Agreement and providing such data, you agree (and shall ensure that each other relevant person agrees) to our use of such data: (i) in accordance with our privacy policies (as may be amended by us from time to time) including as set forth under Section 6(c), below, and (ii) for the purposes of providing you with the Yahoo Company Sites and Programs and to administer your account (including contacting you about the Yahoo Company Sites, the Programs, your account, the Advertising Agreement, and any of our products or services or our Affiliates from time to time), and for the same purposes you agree to our disclosing such data to other Yahoo Entities (and the transfer of that data to countries that may not afford the same level of protection of such data as the countries in which you initially access the Yahoo Company Sites or Programs).
e. Audience Data/Yahoo Code and Analytics. If you use Analytics or a Yahoo Code on your website(s) or mobile application(s), or provide us Audience Data, the Analytics Program Terms apply and you agree to comply with the Yahoo Pixel and Custom Audience Policy currently located at: https://legal.yahoo.com/xw/en/yahoo/privacy/enterprise/pixelandcustomaudience/index.html (or a successor site) and Analytics Program Terms currently located at https://legal.yahoo.com/us/en/yahoo/terms/advertising/apiaccess/index.html (or a successor site) both of which we may change from time to time.
a. We represent, warrant, and covenant that (i) we have sufficient authority to enter into the Advertising Agreement, (ii) the Yahoo Company Sites are offered free of viruses, spyware, malware, or other malicious code, (iii) we will comply with all applicable laws, statutes, directives, ordinances, treaties, contracts, regulations, and Yahoo Company policies and guidelines (collectively, “Laws”), and (iv) we will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities relating to your advertising campaigns.
a. Subject to Section 10, below, you will indemnify, defend, and hold harmless the Yahoo Entities from all third-party claims against a Yahoo Entity, whether actual or alleged, that arise out of or in connection with your Information and Ads, your or Authorized Users’ use of any Program, Yahoo Company Site, your website, or your or Authorized Users’ breach of the Advertising Agreement (collectively, “Your Claims”). You are solely responsible for defending any of Your Claims, subject to such Yahoo Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all of Your Claims, 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.
b. Subject to Section 10, below, we will indemnify, defend, and hold you harmless from all third-party claims against you, whether actual or alleged, arising from infringement of any valid U.S. copyright or trademark by our technology that generates and places Ads, as a result of using the Yahoo systems in accordance with the Advertising Agreement, excluding data generated by Analytics, the content of searches, Ads, results we serve, and/or content contained therein, any content submitted or approved by you or a third party, including other of our advertisers or end users, and/or any technology of yours and/or a third party, (collectively, “Yahoo Claims”). We are solely responsible for defending any Yahoo Claims, subject to your right to participate with counsel of your own choosing, at your own expense, and for payment of all judgments, settlements, damages, losses, costs, and expenses, including reasonable attorneys’ fees, resulting from the foregoing to you, provided that we will not agree to any settlement that imposes any obligation or liability on you without your prior written consent. Notwithstanding any other provision in the Advertising Agreement, we will have no liability or indemnification obligation under the Advertising Agreement with respect to any Yahoo Claim to the extent it is based on or arises out of: (i) the modification of any Program, Yahoo Company Site, and/or technology by you, an Authorized User, or a third party, (ii) the combination or use of any Program and/or technology with software, services, products, or technology of yours or a third party, or (iii) misuse of the Programs and/or Yahoo Company technology.
c. The indemnified party(ies) (i) will give the indemnifying party prompt notice of the relevant claim (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent prejudiced by such failure or delay), and (ii) cooperate reasonably with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim.
9. WARRANTY DISCLAIMER.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE AND YOU DISCLAIM ON BEHALF OF EACH OF OURSELVES (AND, IN OUR CASE, ALL YAHOO ENTITIES) ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE DISTRIBUTION NETWORK, YAHOO COMPANY SYSTEMS, PLATFORMS, EXCHANGES, WEBSITES, CODE, PROGRAMS, 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.
10. LIMITATION OF LIABILITY.
EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTIONS 5 (CONFIDENTIALITY), ABOVE, AND ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY LIABILITY OF YOU OR THE YAHOO ENTITIES IN CONNECTION WITH THE ADVERTISING AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE GREATER OF THE AMOUNT ALREADY PAID OR OWED BY YOU TO US PURSUANT TO THE ADVERTISING AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM AND EUR €250,000 (OR ITS EQUIVALENT). EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTIONS 5 (CONFIDENTIALITY), ABOVE, AND ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ABOVE, IN NO EVENT WILL YOU OR ANY YAHOO ENTITY BE LIABLE FOR LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATED TO: LOSS OF PROFITS; LOSS OF SALES OR BUSINESS OPPORTUNITY; LOSS OF AGREEMENTS OR CONTRACTS; LOSS OF ANTICIPATED SAVINGS; OR LOSS OF OR DAMAGE TO GOODWILL, REGARDLESS OF WHETHER ANY OF THESE TYPES OF LOSS OR DAMAGE ARE DIRECT, INDIRECT, CONSEQUENTIAL AND ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE ADVERTISING AGREEMENT. YOU WILL NOT HOLD A YAHOO COMPANY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE ADVERTISING AGREEMENT, INCLUDING WITH RESPECT TO CLICKS AND IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY. NOTWITHSTANDING THE LIMITATIONS STATED IN THIS SECTION 10, YOU WILL REMAIN RESPONSIBLE FOR ANY AND ALL PAYMENT OBLIGATIONS ARISING UNDER SECTION 2 OF THESE ADVERTISING TERMS AND CONDITIONS, WHICH AMOUNTS WILL NOT COUNT TOWARD THE MAXIMUMS STATED IN THIS SECTION. NOTHING IN THIS SECTION 10 OR THE AGREEMENT SHALL LIMIT OR EXCLUDE THE LIABILITY OF EITHER PARTY FOR: (A) DEATH OR PERSONAL INJURY; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY LIABILITY THAT CANNOT OTHERWISE BE LIMITED OR EXCLUDED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, OUR MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO SECTION 8 (INDEMNIFICATION) WILL NOT EXCEED THE LESSER OF (I) THE TOTAL AMOUNT PAID BY YOU TO US UNDER THIS ADVERTISING AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE FIRST LIABILITY AROSE OR (II) EUR €500,000 (FIVE HUNDRED THOUSAND EUROS).
11. CANCELLATION AND TERMINATION.
a. Cancellation. Different advertising offerings carry different cancellation periods. If your account is managed by us, you may cancel: (i) Non-guaranteed Ads (including run-of-network, Native Ads, and video) on two (2) business days’ notice, (ii) standard Xbox placements on two (2) business days’ notice unless they are associated with a custom Xbox solution, such as a landing page, in which case both the custom Xbox solution and the standard Xbox placements cannot be cancelled, (iii) Cooler Screens/RDOOH Ads on seven (7) days’ notice,site (iv) guaranteed or premium display Ads on fourteen (14) calendar days’ notice, and (v) homepage or log-in takeovers on thirty (30) calendar days’ notice (except during certain holiday periods that may be longer but will be identified on the IO or your online account before you commit). Custom offerings, including Xbox custom solutions, Production Content, or any offering joined with a research study, cannot be cancelled. If you manage your own account via online access, you may be able to cancel Ad campaigns or individual line items more quickly. No matter the cancellation period, you remain responsible for all clicks or impressions actually delivered until such time as the cancellation is effective. In each instance, any required notice must be given to us in writing (email is acceptable).
b. Termination. At any time, for any or no reason, you or we may terminate the Advertising Agreement or your participation in any Program, and we may suspend or limit your participation in any Program or part thereof, including by removing your Ads. The Yahoo Entities will not have any liability regarding the foregoing decisions. If you seek to terminate the Advertising Agreement during the term of an IO or when using Management Services, we will treat your notice of termination as a request to cancel such IO or Management Services (as defined in the DSP Program Terms), but (i) you remain responsible for all clicks or impressions actually delivered until such time as the cancellation and/or termination is effective, and (ii) any licences you have granted us to display your Ads shall remain in effect until such time as cancellation and/or termination is effective. Upon termination of the Advertising Agreement or the suspension or discontinuation of your participation in any Program, your outstanding payment obligations incurred under the Advertising Agreement will become due and payable upon receipt of an invoice from us. Sections 2, 3c, 4a(ii), and 5 through 15 (inclusive) of these Advertising Terms and Conditions, the defined terms of the Advertising Agreement, and any terms identified in a rider as surviving, will survive termination of the Advertising Agreement.
We may give general business notices to you by posting on the applicable Yahoo Company Site, in your online account with us, or by email to the address provided by you. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. We will send all legal notices to you regarding indemnification, Confidential Information, and/or breach of the Advertising Agreement (“Legal Notices”) via recognized overnight courier, certified mail, return receipt requested, to the physical address set forth on the applicable IO, cover page, or in your online account, but if not therein identified, via email to your address on file. You will send all Legal Notices to us via recognized overnight courier or certified mail, return receipt requested, to: Yahoo EMEA Limited, 5-7 Point Square, North Wall Quay, Dublin 1, D01 CF99, Ireland, Att: General Counsel.
13. CHOICE OF LAW; VENUE.
The terms of the Advertising Agreement and any dispute relating thereto or between you and us will be governed by the laws of the Republic of Ireland, 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 Advertising Agreement. You and we agree to submit to the exclusive jurisdiction of the courts of the Republic of Ireland. 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.
14.1 The Advertising Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all proposals, representations, claims, and communications in all forms of media (including all instructions and messages), written and oral, regarding the subject matter contained herein. No terms or conditions other than those set forth in these Advertising Terms and Conditions, cover page(s), or IO Document(s), will be binding on us unless expressly agreed to in writing by us. Each party acknowledges that in entering into this Advertising Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of this Advertising Agreement at any time before its signature (together "Pre-Contractual Statements"), other than those which are set out in this Advertising Agreement. Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements. Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term(s) or condition(s) of the Advertising Agreement. No waiver by you or us of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision.
14.2 If there is a conflict between the Advertising Terms and Conditions, and any IO Document or cover page, the conflict will be resolved according to the following order of precedence: (1) IO Addendum (where applicable), (2) Campaign Confirmation Statement (where applicable), (3) IO/cover page, (3) Program Terms, and (4) these Advertising Terms and Conditions. Notwithstanding the foregoing, an IO Document or cover page may amend the Advertising Terms and Conditions only if the amended terms contained in such IO Document or cover page: (i) apply only to the placements listed in the IO or online account, and (ii) apply only to that IO/account and not to any other IO(s) or account(s).
14.3 If any provision of the Advertising Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Advertising Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect.
14.4 Neither we nor you will have any liability under the Advertising Agreement by reason of any failure or delay in the performance of our or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet or electrical outages or brownouts, computer viruses, acts of God, war, governmental action, or any unforeseeable cause that is beyond our or your reasonable control.
14.5 You and we are independent contractors and nothing in the Advertising Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us. Except as otherwise set forth in the Advertising Agreement, neither you nor we will have any right, power, or authority to create any obligation or responsibility on behalf of the other and the Advertising Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in any person who is not named at the date of this Agreement as a party to it and neither party may declare itself a trustee of the rights under it for the benefit of any third party. Notwithstanding the foregoing, you acknowledge and agree that the Yahoo Companies will be third-party beneficiaries of the Advertising Agreement and will be entitled to directly enforce, and rely upon, any provision in the Advertising Agreement that confers a benefit on, or rights in favour of, them.
14.6 You may not assign, sub-licence, or transfer the Advertising Agreement or any right or duty under the Advertising Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14.6 will be void and of no force or effect. We and our subsequent assignees may assign, delegate, sub-licence, or otherwise transfer from time to time the Advertising Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity such as to our Affiliate(s).
14.7 Our advertising offerings, Programs, systems, platforms, and exchanges are proprietary to us and are protected by the applicable state, federal, and international intellectual property laws and we retain all rights, title, and interests in them, together with all derivative works, modifications, enhancements, and upgrades, but excluding your Information. You hereby assign to us all right, title, and interest in and to any feedback or suggestions you provide to us regarding a Program. Any rights not expressly granted in the Advertising Agreement are reserved by you or us, as applicable, and all implied licences are disclaimed.
14.8 As used in the Advertising Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
14.9 In each instance in the Advertising Agreement wherein we reserve the right to change policies or specifications, you will only be held to such changes if we provide them to you or make them conspicuously available to you. We reserve the right to revise these Advertising Terms and Conditions and Program Terms but any such revisions will only apply to new or revised IOs or cover page(s) entered into after the date of any such revision (i.e., not IOs that are running).
14.10 Services and obligations to be performed by us hereunder may be performed by other Yahoo Companies and third-party service providers.
a. If you are an advertising agency, reseller, or other entity representing advertisers (“Agency”), “you,” “your,” and “Advertiser,” as used throughout the Advertising Agreement, shall mean both (i) the Agency that executes an IO Document or logs into a Yahoo system, platform, or exchange, and (ii) the Advertiser that you represent and/or that you allow to execute an IO Document or to log into a Yahoo system, platform or exchange.
b. Agency shall ensure that all provisions of this Advertising Agreement are complied with by both Agency and the Advertiser which it represents. Agency shall be directly liable to us for any act or omission in this regard. Other than Authorized Users, Agency shall ensure that only Agency deals with us.
c. Agency represents, warrants, and covenants that: (i) it is the authorized representative of the Advertiser and has the legal authority to enter into and perform the Advertising Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts, (ii) Agency will not, without our prior written consent: (a) make any representation, guarantee, condition, or warranty concerning any Program or Yahoo Entity, including that Agency 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 obligations of a Yahoo Entity, or that are inconsistent with the Advertising Agreement, or (d) engage in any telesales or telemarketing in connection with any Program, (iii) Agency will perform its duties pursuant to the Advertising Agreement in a professional manner consistent with the requirements established by us, and (v) Agency shall disclose to Advertisers any incentives or discounts provided to Agency by us (to the extent permitted by law). Upon our request, Agency will immediately deliver to us each agreement that authorises Agency to act on the Advertiser’s behalf in connection with the Advertising 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 with respect to its Ads, and Agency will no longer have API Access for such Advertiser’s accounts. Agency will not at any time use data or information received in connection with the Advertising Agreement (i) to conduct any marketing efforts targeted at our existing advertisers, or (ii) with an Advertiser other than the one in connection with which the data or information was received.
d. Payment Liability. Without limiting any other provision of the Advertising Agreement, Agency and each Advertiser shall be jointly and severally liable for all payment obligations pursuant to Section 2 (Charges, Fees, and Payment). Agency acknowledges that we may directly contact any Advertiser represented by Agency, including if we have not received payment for such Advertiser’s account by the due date for payment (as stated in the applicable invoice or otherwise communicated by us through the relevant Yahoo Company Site).
16. TRADE COMPLIANCE. To participate in any Program or advertising offering, you must comply with the export laws and regulations of the United States and trade controls of other applicable countries, including the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security, and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Unless authorized under a U.S. government licence, you agree that you will not transfer any items, software, technology, or other deliverables that the Yahoo Companies provide to you under the Advertising Agreement to: (i) countries, nationals, and governments subject to U.S. or other applicable country embargo, or (ii) entities identified on U.S. or other applicable government export exclusion lists, including the Denied Persons, Entity, and Specially Designated Nationals Lists.
17. ANTI-CORRUPTION COMPLIANCE. To participate in any Program or advertising offering, you must comply with all applicable anti-corruption laws, including but not limited to the Foreign Corrupt Practices Act and the Irish Criminal Justice (Corruption Offences) Act 2018, in relation to the Advertising Agreement. You will not offer to pay, or pay, anything of value to anyone, including foreign governmental officials or related persons or entities, on a Yahoo Company’s behalf to corruptly (i) influence any official act or decision, (ii) secure any improper advantage, (iii) obtain or retain business, or to direct business to any person or entity, or (iv) induce or reward any favourable action in any matter related to the subject of the Advertising Agreement or the business of a Yahoo Company.
DISPLAY ADVERTISING PROGRAM TERMS – If you purchase display Ads (including video and Native Ads) on an IO basis, the following terms also apply. Your Ads must comply with our then current policies and specifications currently located at https://adspecs.yahooinc.com/ (or a successor site), which we may change from time to time. We will use commercially reasonable efforts to (a) deliver impressions in the amounts and locations as specified in an IO, and (b) provide a reasonably balanced delivery of the Ads set forth on an IO, where applicable.
1. DEFINITIONS. “Non-guaranteed Ads” are Ads that are displayed on a space-available basis and are not guaranteed to appear; you pay only for Non-guaranteed Ads that are delivered. Non-guaranteed Ads include Native Ads, run-of-network Ads, and dynamically priced Ads (such as dCPM or oCPM). Desired KPIs for Non-guaranteed Ad campaigns may appear on an IO, but you agree that any listed KPIs are targets only and do not affect your payment obligation. Ads with the Pricing Type of “dCPM,” “oCPM,” “dCPC,” or “oCPC” are dynamically priced Ads whose delivery is optimised by Yahoo. dCPM and oCPM mean the average price per thousand impressions, and dCPC and oCPC mean the average price per click. Yahoo will bill you based upon the actual number of impressions or clicks delivered, as applicable, without exceeding the budget specified. When you use a Yahoo pre-approved third-party ad server that cannot account for dynamic pricing, we will report the total cost to you so you can accurately determine your effective CPM. “Premium Ads” are those Ads that are reserved by you to run on specific sites at specific times (e.g. on Yahoo Sports during the playoffs).
2. DELIVERY. At your direction, we may optimize your campaign by modifying the line items of an IO. We must approve in advance in writing the serving of Ads by anyone other than us. You may only use an Approved Third-Party Vendor to serve Ads, deliver Ads or for campaign measurement and reporting. For Ads in an IO that specify frequency caps, we will use commercially reasonable efforts to comply with such frequency caps, provided that you agree that we are not liable if your Ads are viewed in excess of the frequency cap. For dynamically priced campaigns, we may adjust the location of, and price for, your Ads in an effort to meet your stated target goals (e.g. CPC, CPA). For Premium Ads, if your Information, including any updates, is not given to us three (3) days prior to its anticipated distribution or does not conform to our policies and specifications, (i) we are not required to fulfill the Premium Ads portion(s) of the IO, and (ii) you are still responsible for the media purchased pursuant to the IO. The Yahoo Companies may provide free clicks, free impressions, credits, and discounts, including in connection with contests, incentives, promotions, or donations.
3. MAKE GOODS. For Premium Ads only, if we fail to deliver, by the end of the period specified in the IO, the aggregate number and type of impressions as agreed in the IO, or the impressions are delivered in the wrong location, then (a) you will only be billed for the impressions actually delivered under the terms of the IO, and (b) your sole and exclusive remedy is limited to the following: delivery of the remaining impressions at a later time in a comparable position as determined by us, and/or an extension of the term of the IO to allow for delivery of the remainder of the impressions, in each case at prevailing rates. Make goods are not available in connection with Non-guaranteed Ads, cost-per-day or flat fee Ads, or with line items identified as “Added Value” on the IO.
4. DATA USAGE. In addition to the restrictions set forth above in these Advertising Terms and Conditions, you and we agree as follows:
a. Definitions. (i) “Aggregated” means a form in which data gathered under an IO Document is combined with data from numerous campaigns of numerous advertisers and precludes identification, directly or indirectly, of any particular Advertiser, (ii) “IO Details” are details set forth in an IO Document but only when expressly associated with you or us, including ad pricing and placement information, Ad description, and Ad targeting information, (iii) “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to an IO (e.g. number of impressions, interactions, and header information), but excluding Site Data or IO Details, (iv) “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of an IO Document, (v) “Site Data” is any data that is (a) our pre-existing data used by us pursuant to an IO Document, (b) gathered pursuant to an IO Document during delivery of an Ad that identifies or allows identification of us, Yahoo Company Sites, brand, content, context, or users, or (c) entered by users on any Yahoo Company Site, other than User Volunteered Data, and (vi) “User Volunteered Data” is personally identifiable information collected from individual users by us during delivery of an Ad pursuant to an IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
5. AD TARGETING. Unless otherwise set forth on an IO Document, when geographic targeting is employed, all Yahoo placements are targeted to the countries specified in the IO Document only.
6. HOMEPAGE AND EMAIL LOGIN TAKEOVERS; FLAT-FEE BUYS. All Yahoo homepage and email login takeover (as opposed to rotational buys) impressions may be displayed on a PC, smartphone, tablet, and/or other device, and we will only be responsible for the aggregate delivery of the total number of impressions across all devices on the date(s) set forth on the IO, notwithstanding any line-level impression numbers stated on the IO. Line items identified as flat-fee or fixed-price placements are sold on a cost-per-day basis, regardless of the number of impressions or clicks delivered. Notwithstanding anything to the contrary set forth on an IO Document, (i) any impression levels listed in connection with the flat-fee line(s) are merely estimates and are not guaranteed, and (ii) no make goods will be made available to Advertiser in connection with any such impression levels.
7. NATIVE AD BUYS. For Ads delivered in the stream of content via Yahoo’s native ad server or otherwise (“Native Ads”) (i) such Ads are Non-guaranteed Ads and will be served by Yahoo, (ii) Yahoo measurements will be used for billing purposes, (iii) on some placements where space is limited, we may only show certain elements of your Native Ad, and (iv) at your direction, we may optimize your account by modifying campaigns, including changing the price of your bids and your budget type.
8. BRAND SAFETY. Except as otherwise expressly agreed between the parties, positioning of Ads within the Distribution Network is at our absolute discretion and we may display Ads for any product or business which competes with your product or business in any part of the Distribution Network. Without prejudice to Yahoo’s rights under the Advertising Agreement, in the United Kingdom, the Digital Trading Statement & Brand Safety Policy — UK currently located at https://emea.adspecs.yahooinc.com/pages/policies-guidelines/UK-Digital-Trading-Statement (or a successor site) (as amended by us from time to time in its sole discretion) will apply to the placement of Ads.
9. VIEWABLE ADS (vCPM). a. Notwithstanding anything to the contrary stated or referenced herein, for any line item set forth herein designated as subject to a viewability guarantee in the placement name (except for added value companion banners) (“vCPM Ads”), Yahoo will deliver no less than the percentage of impressions set forth on the IO for each such line item as “Viewable” in accordance with the most recent Viewable Ad Impression Measurement Guidelines, prepared by Media Ratings Council, Inc. (“MRC”) (“Viewability Minimum”) and as measured and invoiced based on reports produced by us or an Approved Third-Party Vendor that is certified by the MRC to measure vCPM Ads. If you use an Approved Third-Party Vendor, you agree to either (i) provide Yahoo with daily access to reporting for vCPM Ads directly from the Approved Third-Party Vendor during the campaign term or (ii) provide daily reporting from the Approved Third-Party Vendor directly to Yahoo. If you fail to provide such access or reports as set forth in the foregoing sentence, Yahoo may (i) pause the vCPM Ads until such access or report is provided, and/or (ii) proceed with the campaign using Yahoo’s reports for measurement and invoicing purposes. Yahoo will calculate the total number of billable vCPM Ads for which to invoice you each month during the term of the IO by multiplying the total percent of Viewable impressions, as determined by us or Vendor (as applicable), by the total delivered impressions as measured by us or a third-party ad server (as applicable). Yahoo may over-deliver the vCPM Ads to achieve the Viewability Minimum; provided however, Yahoo will not invoice you in excess of the budgeted vCPM Ads for the applicable placement. Yahoo reserves the right to dispute any Vendor measurements and you and we agree to reconcile any such dispute within ten (10) days. Yahoo is not responsible for any fees incurred by Advertiser from Vendor and/or third-party ad server (as applicable).
b. Unless otherwise set forth on the IO, Yahoo will not guarantee viewability on the following inventory, and the above vCPM terms are not applicable to the following placements: all homepage and mail login buys, Production Content, premium formats (including wallpaper, pushdown, mobile, iPad), roadblocks and sponsorships, and certain video placements including: branded syndication products, audience guarantees, mobile, connected TV, companion banners, overlay Ads, Moments buys, and CPC, CPV, and CPCV offerings.
10. COST PER COMPLETED VIEW (CPCV). All Ads set forth on a line bearing a CPCV billing metric will be billed at the rate specified on the IO for each video that runs to completion with at least 50 percent of the pixels in view, as measured and invoiced by us or a third-party vendor that has been approved by us. CPCV Ads are Non-guaranteed Ads, so no make goods are available, but you are only billed for CPCV Ads that play to completion
11. COST PER VIEW (CPV). All Ads set forth on a line bearing a CPV billing metric will be billed at the rate specified on the IO for each video that runs for at least three (3) seconds with at least fifty (50) percent of the pixels in view, as measured and invoiced by us or a third-party vendor that has been approved by us (provided that Native Ads are always served by us and billed on our numbers). CPV Ads are Non-guaranteed Ads, so no make goods are available, but you are only billed for CPV Ads that play for at least three (3) seconds.
12. COST PER COMPLETED LISTEN (CPCL). All audio Ads set forth on a line bearing a CPCL billing metric will be billed at the rate specified on the IO for each such Ad that runs to completion, as measured and invoiced by us or a third-party vendor that has been approved by us. CPCL audio Ads are Non-guaranteed Ads, so no makegoods are available, but you are only billed for CPCL audio Ads that play to completion.
13. MANAGED DSP BUYS. If the IO includes placements for managed buys on the Yahoo Demand Side Platform (“DSP”), the following terms will also apply to such DSP placements (note: the following terms only apply when the DSP placements are set forth on the IO and Yahoo will be managing the campaign within the Platform on your behalf; a signed DSP cover page would be required if you desire to access and manage campaigns within the DSP user interface directly on a self-service basis): Yahoo, on your behalf, shall have the ability to launch and edit advertising campaign(s) during the flight dates, increase or decrease maximum bids for advertising inventory, set flight dates and frequency limitations, pause/start advertising campaigns, configure optimization objectives and pacing, upload media, access reporting, create retargeting and conversion pixels, and choose placements and targeting.
14. XBOX. All Xbox placements will be served by us and our numbers will be used for billing. With respect to any Xbox custom solution (e.g. an Xbox Mini-Game, Xbox Live Avatar prop/item, or branded destination/landing experience), as between you and us, we own all right, title, and interest in and to such custom solution, any licensed music therein, and its code, but excluding any Information that may be contained therein.
15 FRAUD. We will not charge you for any impressions that we determine are fraudulent.
16 PRODUCTION CONTENT (e.g. RYOT). For any lines on the IO that refer to “Production” or your sponsorship of original custom content created by Yahoo or its Affiliates, such as articles, listicles, infographics, photo galleries, videos etc. which may include Commercial Content and Editorial Content (together “Production Content”), the following terms will apply to such placements:
a. Non-cancellation. All Production Content sponsorships and placements on the IO or IO Document pertaining to the Production Content or “Production” are fully non-cancellable after (i) Yahoo sends a confirmation email to you following receipt of a signed IO or, (ii) where we have permitted you to place IO via a third party booking system, we have accepted the IO you have placed via that third party booking system.
b. Advertiser Branding and Disclosure. Advertiser will be identified as the sponsor of each piece of Production Content, with an appropriate attribution appearing on a Yahoo Company’s sites whenever a piece of Production Content is displayed. Upon expiration of the term of the IO or such other period as detailed in an IO Document, Yahoo may, but will not be obligated to, remove Advertiser’s name or marks from pieces of Production Content on a Yahoo Company’s sites.
c. Approval. Yahoo will have creative control over all Production Content; however, Advertiser shall have the right to final approval of any Production Content which is created to promote Advertiser’s goods or services (the “Commercial Content”), such approval not to be unreasonably withheld or delayed. Commercial Content is subject to additional fees for extra rounds of editorial revisions beyond those stated in the timeline provided to Advertiser on the kick-off call. Such costs will depend upon the scope of additional work needed and any additional fees will be presented to Advertiser before any revisions are made. Advertiser is responsible for ensuring that Commercial Content complies with all Laws, regulations and codes of practice, including but not limited to, regulations relating to financial products, gambling and alcohol. Advertiser understands and agrees that services and obligations to be performed by us may be performed by other Yahoo Companies and/or third-party service providers.
d. Production Content Start Date. Advertiser acknowledges and agrees that the Production Content inventory may have a different start date than that listed in the IO Document. Yahoo will adjust the start date based on your approval of the Commercial Content and/or approval of headlines for any commissioned Editorial Content.
e. Advertiser Marks. Any content, data, logos, trademarks, service marks or other materials provided by Agency or Advertiser (collectively, the “Advertiser Marks”) that are incorporated into the Production Content or otherwise used on Yahoo Company Sites in connection with the sponsorship (including on a Hub) are Advertiser’s Information.
f. Licence of Commercial Content. Except for any Advertiser Marks or images licensed from a third party, as between Advertiser and Yahoo, Yahoo (and its licensors, as applicable) shall own all right, title, and interest in and to the Commercial Content (including the right to create derivative works therefrom). Unless otherwise provided under an IO Document, Yahoo hereby grants Advertiser a royalty-free, non-transferable licence during the term of the IO to publicly display and promote the Commercial Content (excluding third party images) on Advertiser’s owned and operated websites and/or Advertiser-branded social media accounts in the same form and format as provided to Advertiser by Yahoo. Advertiser agrees to provide attribution to Yahoo any time the Commercial Content is used and include an active link back to the Commercial Content on the Yahoo Company Site. The process for any use by the Agency or the Advertiser during the term of the licence granted above shall be as follows:
(i) Any copy alterations require prior approval from Yahoo, and Yahoo retains the right to refuse such alterations if they are likely to misrepresent or alter the views of an expert who has been quoted/ referenced in a piece or the editorial nature of the same;
(ii) Agency shall not, and shall procure that the Advertiser shall not reach out directly or indirectly to any influencers or experts quoted in any article. All such contact must be done via a Yahoo representative, who will use reasonable endeavours to speak with the relevant editor;
(iii) Use of influencer quotes/content by Agency or Advertiser may incur additional fees; and
(iv) A screengrab of the relevant post shall be shared with Yahoo for approval prior to publication.
For the avoidance of doubt, in respect of any musical content or composition comprised in the Commercial Content, wherever in any particular country of use the performance or public broadcast of the Commercial Content requires that a public performance licence or broadcast licence or such other analogous consent is obtained from a Relevant Collection Agency and/or a payment is required to be made to a Relevant Collection Agency in respect of such performance or broadcast, then: (i) nothing herein shall serve to in any way compromise such requirement for consent; and/or (ii) nothing herein shall be deemed to be a prior grant of consent in relation to the same; and/or (iii) nothing herein shall be deemed to be a waiver of any such requirement to make a payment. You shall procure that any and all royalties and/or fees payable in respect of the public performance of the Commercial Content and any and all royalties and/or fees payable in connection with the exercise of all neighbouring rights in respect of any composition comprised in the Commercial Content are paid either by You and/or any third party authorised to exploit the Commercial Content including any and all broadcasters of the Commercial Content. For the purposes of this Agreement, “Relevant Collection Agency” shall mean the from time to time applicable collection society in respect of the broadcast or public performance of musical compositions.
g. Trademark Licence. Solely in connection with the Production Content, during the term of the applicable IO Document, Yahoo grants to Advertiser a limited, non-exclusive, non-transferable, royalty-free licence to use trade names, trademarks, or service marks of Yahoo (“Yahoo Marks”) and Advertiser grants to Yahoo and its Affiliates a limited, non-exclusive, non-transferable, royalty-free licence to use the Advertiser Marks (collectively, together with the Yahoo Marks, the “Marks”); provided that each party: (i) does not create a unitary composite mark involving a Mark of the other party without the prior written approval of such other party, (ii) displays symbols and notices clearly and sufficiently indicating the trademark status and ownership of the other party’s Marks in accordance with applicable trademark law and practice, and (iii) complies with all written guidelines provided to it by the other party related to use of the other party’s Marks. Each party acknowledges the ownership right of the other party in the Marks of the other party and agrees that all use of the other party’s Marks will enure to the benefit, and be on behalf, of the other party. Each party acknowledges that its use of the other party’s Marks will not create in it, nor represent it has, any right, title, or interest in or to such Marks other than the licences expressly granted herein. For the avoidance of doubt any third-party images incorporated within any written Commercial Content are excluded from any licence granted under these Advertising Terms and Conditions unless otherwise agreed in an IO Document.
h. Third Party Usage. If confirmed in the IO Document; Advertiser may (subject to any overriding talent restrictions advised) for the duration of the IO (or such other period of usage as confirmed in the IO Document) publicly display and promote the Commercial Content on certain third-party platforms as indicated in the IO Document (together the “Third Party Platforms”) and in each case (a) provided that such public display and promotion of the Commercial Content on those Third Party Platforms is in the same form and format as provided to Advertiser or Agency (as applicable) by Yahoo; (b) Agency shall procure that Advertiser provides attribution to Yahoo any time the Commercial Content is used, and (c) when used online, the attribution shall include an active link back to the Commercial Content on Yahoo's site. In addition, the public display and promotion of Commercial Content on Third Party Platforms may be subject to third party licence restrictions and applicable terms and conditions of use in respect of those Third Party Platforms and the Commercial Content; and (d) Advertiser and Agency (on behalf of itself and Advertiser) shall each be solely responsible for complying with any such third party licence restrictions and terms and conditions of use in connection with the public display and promotion of Commercial Content on Third Party Platforms and other third party licence restrictions advised by Yahoo; and (e) Agency and Advertiser acknowledge and agree that, to the extent permitted by applicable law, Yahoo accepts no liability in connection with the public display and promotion of Commercial Content on Third Party Platforms.
i. Restrictions. Agency shall not (and shall procure that Advertiser shall not) display the Commercial Content on any website or platform that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category that could negatively impact either or both the parties. Yahoo may request that Agency removes (and procures that Advertiser removes) such item from any websites where Advertiser or Agency has posted such Commercial Content in accordance with the take down procedure set out in the Display Advertising Program Terms – Section 16(j) (Take Down of Commercial Content).
j. Take Down of Commercial Content. Should Yahoo believe that any particular item of Commercial Content could negatively impact either or both of the parties, Yahoo may request that Advertiser remove such item from any websites where Advertiser has posted such Commercial Content and Advertiser shall pull down and cease displaying any such Commercial Content as soon as practicable but in no event later than two (2) business days after such request.
k. Hub. Where Advertiser has sponsored an entire section of a Yahoo Company Site (a “Hub”) on which the Production Content will appear, the following terms will apply:
(i) Editorial Content. Yahoo may post to the Hub third-party, original, and/or curated editorial pieces that are thematically aligned and relevant to the topic of the Production Content (the “Editorial Content”). Yahoo's editorial teams will have sole discretion with respect to the creation, publication and promotion, if any, of the Editorial Content on the Hub. As between Yahoo and Advertiser, Yahoo (and its licensors, as applicable) shall retain all right, title and interest in and to the Editorial Content. Should Advertiser have concerns about any of the Editorial Content, Advertiser may notify Yahoo and the parties will work together in good faith to determine a mutually agreeable solution.
(ii) Sponsorship Name for Hub. Yahoo will clear the rights to the name of the Hub (e.g. “HuffPost Food for Thought”), and such name and any marks associated therewith will be owned by Yahoo. Should Yahoo be unable to clear a Hub name, Yahoo will propose and work with Advertiser to determine a suitable replacement name for the Hub.
(iii) Hub Sponsorship Term. Yahoo may remove Advertiser’s name and logo as the sponsor of the Hub after the IO Document term ends.
17. COOLER SCREENS/RDOOH ADS. If you purchase retail digital out of home (“RDOOH”) Ads to appear on refrigerator door screens in retail locations, the following terms apply: (i) All RDOOH Ads are Non-guaranteed Ads and will be served by us, our measurements will be used for billing purposes, and no frequency caps are available, (ii) all RDOOH Ads are billed on a cost-per-thousand-impression basis, provided that an “impression” occurs when an Ad is displayed for at least one second when an individual is in reasonable proximity to the smart screen (as determined by us), (iii) RDOOH ad creative must comply with the RDOOH ad specifications located at: https://adspecs.yahooinc.com, and must be submitted to us for approval no less than four (4) business days prior to the desired campaign start date, (iv) we will use commercially reasonable efforts to deliver RDOOH placements in the requested amounts/screen sizes, but any overdelivery on one placement will offset underdelivery on another, (v) you consent to us disclosing certain IO Details to our third-party service provider for the limited purposes of creating campaign performance analyses and compliance with legal obligations, and (vi) we will disclose to you campaign effectiveness metrics and other campaign performance analyses, which are our Confidential Information to be used solely for your internal business purposes (i.e., no external use).
18. FRENCH INVENTORY. For Ads running mainly on French inventory and in favour of a French Advertiser (as construed by French case law), the Agency or any other intermediary which signs/accepts the IO Document represents, warrants and covenants that it is appointed by the Advertiser to purchase inventory in the name and on behalf of the Advertiser pursuant to a written mandate agreement according to the French law n°93-122 dated January 29, 1993. Before the start date of the IO, the Agency shall deliver to us the mandate certificate, signed by both the Advertiser and the Agency, authorizing the Agency to act in the name and on behalf of the Advertiser in connection with the IO. If the Agency is also appointed by the Advertiser to pay in the name and on behalf of the Advertiser, we will hold the Agency and the Advertiser jointly and severally liable for the payments due under Section 2. If the Agency breaches or allegedly breaches the representations and obligations contained in this Section 18, the Agency will be solely liable for the payment obligations pursuant to Section 2.
19. EFFECTS OF TERMINATION. Sections 4(b), 16(b) (second sentence only), 16(f) (first sentence only), 18 and this Section 19 of these Display Advertising Program Terms will survive termination or cancellation of the applicable IO.
DSP PROGRAM TERMS – If you participate in the DSP Program, the following Program Terms apply.
1. DEFINITIONS. As used in these DSP Program Terms, the following terms will have the corresponding definitions: “Demand Side Platform” or “DSP” means the platform made available by us through which you may buy Inventory, manage Ad campaigns, target audiences, track Ads, and use any related APIs. “DSP Data” means Yahoo Data, Vendor Data, or other data, including targeting parameters, made available to you by us through the DSP. “Effective Date” means the effective date stated on the cover page. “Inventory” means Ad units made available by Media Sellers for purchase through the DSP, and is included in the Distribution Network definition. “Media Cost” means the total cost of impressions invoiced by us. “Media Seller” means any marketplace, exchange, supply side platform (including the Yahoo Exchange), publisher, and any entity that sells Inventory through the DSP. “Media Sellers’ Policies” means advertising guidelines and other policies established by Media Sellers, made available through the DSP, and applying to the display of your Ads on Inventory. “Delivery Data” means data (e.g. total number of impressions or clicks) related to the delivery of an Ad campaign on Inventory. “Programmatic Guaranteed Ads” or “PGd” means Ads for which campaign parameters are agreed between you and a Media Seller, including the CPM or billing metrics, number of impressions, budget, Ad format, Ad size, and start and end time of the Ad campaign. “Our Vendors” means third-party providers with which we have a contractual relationship for the provision of data and/or other products and services. “Service Data” means the DSP Data, Delivery Data, and any other data obtained and accessed through the DSP. “Vendor Data” means information provided by Our Vendors and made available to you for Ad or audience targeting, including audience, contextual, and behavioral data segments. “Yahoo Data” means audience, contextual, and behavioral segments that are collected and/or created by or for Yahoo, and may be made available to you for Ad targeting. “Your Vendor” means an Approved Third-Party Vendor with which you have an independent contractual relationship for the provision of data and/or other products and services.
2. DSP LICENCE. Provided that you have executed a DSP cover page with us, we grant you a non-exclusive, non-sublicensable, and non-transferable licence to access and use the DSP. You may access and use the DSP (i) only in accordance with applicable law, rules, regulations, and self-regulatory principles, the Policies, Media Sellers’ Policies, and any other applicable policies or documentation that we make available to you from time to time. You acknowledge and agree that we and our Affiliates are not liable for transactions executed in the DSP as a result of errors made by or for you in entering information into the DSP (e.g. incorrectly entering pricing, targeting, or budgeting information). We shall make DSP support available to you during our normal business hours, which, as of the Effective Date, are 9 a.m. to 6 p.m. local time, Monday through Friday (except for legal holidays).
3. USE OF THE DSP.
3.1 Your Ads and Your Use of the DSP. You agree that (1) you are solely responsible and liable for your use of the DSP, and your trafficking and targeting of Ads, and (2) you may only use an Approved Third-Party Vendor to serve Ads, track delivery of Ads, or for campaign measurement and reporting. You will use the DSP only in accordance with the Advertising Agreement, any training provided by us, the referenced materials supplied by us, and our standard security procedures, as may be posted on our website from time to time or otherwise made available to you.
3.2 Parent and sub-accounts. You may designate in writing to us the entity name(s) for each sub-account or parent-account, if any, you request us to create, and/or linked with your DSP account. You are solely responsible and liable for your and your Authorized Users’ access to and use of sub or parent-accounts, and for any links you request us to make between your account and sub or parent-account.
3.3 Creative Materials.
3.3.1 Direct Advertiser. You may rotate in one Ad tag the creative materials of multiple brands that you own. You are required to provide all click-through URLs associated with your Ads in the DSP user interface.
3.3.2 Agent or other representative of advertiser(s). You may not rotate Ads for multiple advertisers in one Ad tag, provided, however, and for the avoidance of doubt, you may rotate in one Ad tag the creative materials of various brands that are owned and controlled by a single direct advertiser that you represent. You are required to provide all click-through URLs associated with your Ads in the DSP user interface.
4. OTHER PRODUCTS AND SERVICES.
4.1 Management Services. If you use Management Services, the following terms will apply:
4.1.1 You hereby grant us and our authorized representatives, the right and authority to facilitate your access and use of the DSP (“Management Services”), which authority includes campaign planning, set-up, and launch, Ad tag generation and trafficking, bidding advice, campaign monitoring, optimization, reporting, and analysis, based on Information you provide to us.
4.1.2 You will pay the applicable fees as provided on the cover page and you agree to cooperate with us in our performance of Management Services. Such cooperation will include fulfilling any implementation requirements, working in good faith with us to implement our recommendations where appropriate, and providing us with campaign parameters and other input or instructions as requested by us.
4.1.3 You will promptly provide us in writing (by email to suffice): (i) all necessary Information, including targeting parameters and segments, Ad campaign limitations including max eCPM, and a total gross budget amount (and updates or changes thereto) to enable us to perform the Management Services, and (ii) all final approvals/authorizations, including for targeting parameters. You will be responsible for any actions that we take based on any approval or authorization provided pursuant to this paragraph, and (iii) provide us with any limitations or parameters we should follow in determining appropriate categorizations/segmentations. We will not be responsible for any action or inaction taken as a result of your failure to provide us updated Information or to notify us of any changes thereto.
4.1.4 Either party may terminate our provision of Management Services upon written notice (by email to suffice) to the other party, however, at your discretion, we will continue to provide Management Services for ongoing Ad campaigns for up to fifteen (15) days following such notice of termination.
4.2 Programmatic Guaranteed Ads.
4.2.1 PGd Ads on Yahoo Company Sites Inventory. If you purchase Inventory on Yahoo Company Sites to place PGd Ads, the following terms will apply:
a. Notwithstanding the terms set forth on the cover page, you will only be billed for the number of PGd Ads impressions actually delivered according to prices agreed to between you and us, and no Platform Fees or Management Services Fees will be charged. We will not provide any makegoods. Notwithstanding anything to the contrary set forth in the Advertising Agreement, deals identified as “Flat Price” (or similar designation) in the DSP user interface are billed on a cost-per-day basis for the full amount agreed between you and us, regardless of the number of PGd Ads impressions or clicks delivered, and any number of impressions provided in connection with “Flat-Price” placements are merely estimates and are not guaranteed.
b. You may cancel, without penalty, a PGd Ad campaign, in whole or in part, by providing us no less than fourteen (14) days’ notice, except for homepage or log-in takeovers, which you may cancel on thirty (30) days’ notice. Custom offerings, including Xbox custom solutions, or any offering joined with a research study, are non-cancelable. No matter the cancellation period, you remain responsible for all PGd Ads impressions actually delivered until such time as the cancellation is effective. In each instance, any required notice must be given to us in writing (email acceptable).
c. All of our homepage and email login takeover impressions (as opposed to rotational PGd Ad impressions) may be displayed on a PC, smartphone, tablet, and/or other device, and we will only be responsible for the aggregate delivery of the total number of PGd Ads impressions across all devices on the date(s) agreed.
4.2.2 PGd Ads on Third-Party Media Sellers’ Inventory. If you purchase a third-party Media Seller’s Inventory on which to place PGd Ads, the following terms will apply:
a. Notwithstanding the terms set forth on the cover page, (i) you will only be billed for the number of PGd Ads impressions actually delivered, according to the prices agreed to between you and the third-party Media Seller, and (ii) Platform Fees will be invoiced as provided by us. We will not provide any makegoods.
b. Programmatic Guaranteed deals identified as “Flat Price” (or similar designation) in the DSP user interface will be charged for the full budget agreed to between you and Media Seller, regardless of the number of PGd Impressions delivered. You acknowledge that any number of PGd Ads impressions listed in connection with the “Flat Price” placements are merely estimates and are not guaranteed.
c. You will be responsible for any acts or omissions of any of employees, agents, vendors, permitted subcontractors, or any other parties that you designate (including data management platforms) to use our account on your behalf on a third-party Media Seller’s platform.
4.3 Cooler Screens/RDOOH Inventory. If you purchase retail digital out of home (“RDOOH”) Inventory to appear on refrigerator door screens in retail locations, the following terms apply: (a) All RDOOH Ads are billed on a CPM basis, provided that an “impression” occurs when an Ad is displayed for at least one second when an individual is in reasonable proximity to the smart screen (as determined by us), (b) all creatives must be submitted to us for approval no less than four (4) business days prior to the desired campaign start date, (c) despite category requests, we are solely responsible for delivering up to the total budget you set, and (d) you consent to us disclosing certain elements of your Ad campaign to our third-party service provider(s) for the limited purposes of creating campaign performance analyses and compliance with legal obligations.
4.4 Additional Products and Services. In addition to the cover page, and if available through our DSP, we may permit you to use products and services provided by Your Vendors. If you elect to purchase, licence, subscribe to, or otherwise use products and services provided by Your Vendors, you shall pay Your Vendors directly for any charges and fees accrued thereby. In no event will we be responsible or liable for any products or services provided by Your Vendors.
5. PAYMENT. You will pay us for all charges, fees, and costs you incur in connection with your use of the DSP as provided in Section 2 of the Advertising Terms and Conditions or as agreed by both parties through email. For clarity, you are responsible for paying any sum in excess of the initial budget you provided in your account if your campaign exceeds such initial budget, unless you are using Management Services, in which case any such overage will be deemed added value and non-chargeable to you.
6. PROPRIETARY RIGHTS. As between you and us, we own and retain all right, title, and interest in and to the DSP, all software, databases, and other aspects and technologies related to the DSP, any enhancements, modifications, or derivative works thereto, any materials made accessible to you by us through the DSP, such as through the user interfaces or otherwise, and all intellectual property and proprietary rights in and to all of the foregoing.
7.1 DMPs. If you use the DSP to target users using third-party interest-based advertising data collected on your behalf (or on your advertisers’ behalf) by a third-party data management platform (“Third-Party DMP”), then you will ensure that the Third-Party DMP will maintain a full membership in good standing with the EDAA, provided, however, that if the Third-Party DMP has applied for EDAA membership but not yet been admitted as of the Effective Date, you will ensure that the Third-Party DMP will use best efforts to obtain such membership within six (6) months of the Effective Date and notify us if the Third-Party DMP has not gained membership within that time.
7.2 Data Usage Rights.
7.2.1 We have the right to use and disclose Information and Service Data: (i) as part of our business operations, to disclose aggregate statistics about the DSP in a manner that prevents individual identification of you (or your advertisers) or the Information, (ii) to the extent necessary to (a) perform our obligations under this Advertising Agreement, (b) to operate, manage, test, maintain, and improve our products and services, and/or (c) protect the DSP from what, in our reasonable determination, is a threat to the DSP, and (iii) if required by court order or law or required or requested by any governmental agency.
7.2.2 You have the right to: (i) use DSP Data solely to create and target audience segments through the DSP, and (ii) if You represent advertisers, to disclose Delivery Data (a) solely to the applicable advertiser to provide performance reporting regarding such advertiser’s Ads campaigns and/or to comply with reporting obligations that might be required by law, and (b) to create aggregate reports (i.e., reports that do not contain PID) for an advertiser regarding the performance of the applicable campaign, provided such reports are not shared with any other third party.
7.2.3 Unless expressly provided hereunder, and whether you receive any of the Service Data directly from us or from any third party, including a Media Seller or your Vendor, you will not, and will not enable or authorize your advertisers (if applicable) or any third party including a Media Seller or your Vendor, to: (i) disclose the Service Data to any third party without our prior written consent, (ii) create derivative works of, adapt, alter or, in any way, modify the Service Data, (iii) create, supplement, or enhance any end user profiles, segments, populations, or any reportable or targetable group of inventory or consumers based on any of the Service Data (including data derived from cookies, device IDs, or IP addresses), unless authorized by us or the applicable Media Seller in writing, or (iv) use device identifiers for cross-device linkages.
7.2.4 You and Your Vendors will, and if you represent advertisers, you will also ensure that your advertisers and their Vendors will: (a) not reverse engineer or otherwise attempt to determine from any Confidential Information or Service Data any PII or other Sensitive Information regarding end users, and (b) not collect, use, transmit, analyze, combine, merge, join, sync, or link any PII with any DII, our Confidential Information, or any of the Service Data, obtained by any means, or otherwise attempt to re-identify an end user.
8. EFFECT OF TERMINATION. Either party may terminate your participation in the DSP Program for any reason or no reason upon written notice of termination to the other party. Upon termination of the DSP Program for any reason, your right to use the DSP will immediately terminate, and Sections 5, 6, 7, 9, 10, this Section 8, any payment obligations existing as of the termination date, all defined terms, and any other provisions that by their nature would continue beyond the expiration or termination, will survive.
9. AGENT RELATIONSHIP TO ADVERTISERS. Under the DSP Program, Section 15 of the Advertising Terms and Conditions does not apply. Rather, if you are an agent or other entity representing advertisers (“Agent”) (i) Agent buys as the principal (to the extent permitted by law) and, in any case, its liability is primary, and not joint or several with its advertiser(s) (except when expressly agreed otherwise), (ii) Agent will not, without our prior written consent: (a) make any representation, guarantee, condition, or warranty concerning the DSP Program, including that Agent is an affiliate or partner of Yahoo, (b) make any commitments (e.g. guarantees as to placement of Ads) to an advertiser or potential advertiser regarding the DSP Program, or (c) negotiate any terms or conditions related to the DSP Program that may affect the rights, protections, and obligations of Yahoo or that are inconsistent with the Advertising Agreement, and (iii) Agent is solely liable to report to its advertisers the information required by law (if applicable).
These Advertiser Terms and Conditions and Program Terms were last updated on September 1, 2021.