You (¨Publisher¨) and Yahoo Inc., a Delaware corporation, of 701 First Avenue, Sunnyvale, CA 94089 (¨Advertiser¨ or ¨Yahoo¨) have each entered into separate service agreements with Commission Junction, Inc. (¨CJ¨). Publisher has entered into a ¨Publisher Service Agreement¨ with CJ for its participation in CJ's Network Service. These Advocate Program Terms (¨Advocate Program Terms¨) are applicable to Publisher's membership in Advertiser's Yahoo Small Business Advocate Program (¨Program¨ as defined in the Publisher Service Agreement) and modifies certain terms and conditions of the Publisher Service Agreement with respect to Publisher's participation in Advertiser's Program only. Publisher acknowledges that it may participate in Advertiser's Program only under the terms and conditions set forth below, and that subsequent to Publisher accepting these Advocate Program Terms, Advertiser will, in its sole discretion, determine whether or not to accept Publisher into Advertiser's Program. If Advertiser rejects Publisher's application, Publisher may reapply to the Program at any time. Any Advertiser content, trademarks, logos, service marks, trade dress, slogans, copyrighted or other proprietary material, or links contained therein, that are authorized by Advertiser to be provided to Publisher through the Network Service is considered ¨Advertiser Content.¨
For value received, Publisher covenants to CJ and Advertiser as follows:
The introductory paragraph above is incorporated herein, and any capitalized term herein that is not defined will have the meaning set forth in the Publisher Service Agreement.
2. ORDER OF PRECEDENCE
In the event of an inconsistency between the Publisher Service Agreement and these Advocate Program Terms, these Advocate Program Terms will control.
3. ONGOING COMPLIANCE
Publisher's continuing compliance with these Advocate Program Terms is a condition of continuing participation in the Program. Advertiser reserves the right to review and audit Publisher's web site from time to time to determine if Publisher is in continued compliance with these Advocate Program Terms. Publisher's web site must be and remain fully functional. Advertiser may reject or terminate Publisher if its Web site is not live or under construction, or if Publisher's web site is a personal homepage or personal web site.
4. NO CONCURRENT PARTICIPATION IN OTHER ADVERTISER PROGRAMS
While Advertiser may offer more than one Program in CJ's Network Service, Publisher may only participate in one Program at a time (i.e, Publisher may not participate in both the Advocate Program and Small Business Affiliate Program at the same time). Publisher may, however, move from one Program to another, so long as Publisher removes itself from the first program before participating in another Program.
The applicable commission payable to Publisher is based upon a percentage of eligible subscription fees actually received by Yahoo, as set forth on the detail page within the CJ members' area of the Network Service, until such subscription is cancelled or terminated. Such percentage is subject to decrease upon 7 days prior written notice to Publisher, and percentage increase immediately. To be a subscription eligible for commission, the subscription must:
- be a new Yahoo Small Business subscription (i.e., not a subscription by a Visitor who is already a Yahoo Small Business customer); and
- be continuously valid for at least 60 days following the start of the subscription, provided that Yahoo is able to track and record a 60 day cookie (e.g., Visitor does not delete the cookie during such 60 day period); and
- not otherwise be cancelled, refunded, charged-back, terminated, or otherwise invalidated, at anytime during such 60 days following the start of the subscription; and
- not have resulted from fraud, misuse, duplicate submission, or invalid payment, or be in violation of applicable law rules or regulations, or of any Yahoo terms, policies or guidelines; and
- not be the result of unreasonable re-subscription activity by Visitors clicking from the applicable Publisher; and
- in the case where a Visitor has been referred by both Publisher and another third party participant in the Advocate Program, such User was referred most recently by Publisher and otherwise meets the conditions above.
Subscription fees actually received by Yahoo will not be eligible for commission, and subject to offset against other eligible commissions, if:
- any portion of the subscription fee is refunded or charged-back, or otherwise invalidated. In addition, if subscription is later upgraded or downgraded to any other Yahoo Small Business product or service; or
- Yahoo terminates such subscriber or discontinues the applicable Yahoo Small Business Product; or
A subscription will automatically cease to be eligible for initial or recurring commissions upon cancellation or termination of the subscription, or upon Publisher's withdrawal or termination from the Advocate Program. Subscription fees generated by subsequent purchases of other Yahoo Small Business products or services by the same Visitor are not eligible for commissions.
Publisher acknowledges that notwithstanding anything to the contrary in the Publisher Service Agreement, there may be up to 14 days of delay in between the reporting of an eligible subscription and the reporting of Publisher's commission through Publisher's Account page in the Network Service.
6. ADULT CONTENT AND OTHER UNACCEPTABLE CONTENT
Publisher may not post adult-oriented content on any page on which the Advertiser Content appears. Advertiser considers content to be ¨adult¨ if it contains nudity, is sexually explicit, pornographic, lewd material, obscenity, primarily intended for sexual gratification or is otherwise inappropriate for minors, as determined in Advertiser's sole discretion. Publisher may not post any offensive or incorporate images or content that is in any way harmful, threatening, obscene, harassing or racially, ethnically or otherwise objectionable, or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, as determined in Advertiser's sole discretion.
7. USE OF ADVERTISER CONTENT
Notwithstanding Section 4.1 of the Publisher Service Agreement entitled, ¨Proprietary Rights and Licenses¨, Publisher agrees that it is sublicensed only the exact Advertiser Content provided by Advertiser through the Network Service and only in the form and manner available from and as specified in the Network Service. Advertiser shall have complete discretion to evaluate Publisher's use to decide whether that use violates any applicable terms and conditions.
- Publisher may not distribute, transfer, sublicense or otherwise use Advertiser Content in a manner inconsistent with these Advocate Program Terms.
- Publisher acknowledges that Advertiser owns and will retain all right, title, and interest in the Advertiser Content, including, without limitation, any proprietary rights which may be developed in the future.
- Publisher will ensure that the presentation of the Advertiser Content is consistent with Advertiser's own use of the Advertiser Content in comparable media.
- Publisher will not present or use Advertiser Content: (i) in a manner that could be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of Advertiser, or Advertiser's representatives; (ii) in a manner that is misleading, defamatory, libelous, obscene, or otherwise objectionable, in Advertiser's reasonable opinion; (iii) in a way that infringes, derogates, dilutes, or impairs the rights of Advertiser Content; or (iv) as part of a name of a product or service of a company other than Advertiser.
- Publisher may not bid on keywords available from web sites, search engines or other directory or referral services (e.g., Overture, Google, and Yahoo)
- Publisher will not publish any prices, special offers or discounts in connection with the Advertiser Content on its web site, unless such prices, special offers or discounts were included by Advertiser in the unmodified Advertiser Content.
- ALTERING OR ANY UNAUTHORIZED USE OF THE ADVERTISER CONTENT IS STRICTLY PROHIBITED AND WILL RESULT IN TERMINATION FROM THE PROGRAM WITHOUT PAY. ALL RIGHTS NOT EXPRESSLY GRANTED BY ADVERTISER ARE RESERVED.
8. RESTRICTIONS ON PUBLISHER EMAIL ACTIVITIES & REWARDS/INCENTIVE PROMOTION
With respect to any advertising delivered via e-mail, Publisher agrees that it will not distribute any emails or newsletters containing Advertiser Content or promoting Advertiser without the prior written permission of Advertiser. If Publisher desires to conduct an email or e-newsletter campaign containing Advertiser Content or promoting Advertiser, Publisher must contact Advertiser and complete a Publisher Email Campaign Application, and if approved by Advertiser, Publisher will be required to enter into a supplemental agreement that will be appended to and incorporated into these Advocate Program Terms. Similarly, any Publisher that seeks to reward or compensate Visitors through any means or method (e.g ¨incentive site¨) must contact Advertiser for prior written approval, and provide Advertiser with a full description of the Publisher's business model, promotional methods and any other pertinent information to enable Advertiser to decide whether to permit Publisher to promote Advertiser using such means or method. If Advertiser provides written approval, Publisher will comply with Advertiser's guidelines for such ¨incentive site¨ Programs. Advertiser reserves the right to refuse to permit Publisher to reward or compensate Visitors in relation to promoting Advertiser, and Advertiser may reject immediately or terminate its relationship with Publisher with immediate effect based upon Publisher's activities, reward or incentive business model and/or methods. Publisher forfeits any monies resulting from any breach of this Section 7, and is subject to termination, pursuant to Section 10 below.
9. LIMITED TO U.S. TARGETED USERS
Publisher will be allowed to participate in the Program so long as Publisher's web site primarily services or targets U.S. residents. Publisher acknowledges that Advertiser's service under the Program is for U.S. residents only, and that Visitors who subscribe to our service must pay in U.S. dollars.
Publisher will not collect personally identifiable or aggregated data from Visitors, except by way of the Visitor's explicit permission for Publisher to collect such data solely in connection with ¨incentive site¨ Programs which have been approved in writing by Yahoo. Any such Visitor data permitted to be collected will be in compliance with Advertiser's guidelines for ¨incentive site¨ Programs. Notwithstanding the foregoing, any Visitor data generated by Publisher's promotion of Advertiser through the Program will be the sole property of Advertiser.
11. MATERIAL BREACH
In addition to the list of material breaches in Section 2.3 (numbered a-k) of the Publisher Service Agreement, Publisher agrees that Advertiser may terminate Publisher from its Program and that Publisher forfeits all monies resulting therefrom, if:
- Publisher has become or is likely to become a litigant in an action which will materially and adversely affect Advertiser's business; or
- Publisher (as determined by Advertiser in its sole discretion): spams to Advertiser's users, hijacks, provides false account information, falsely increases the number of Transactions and/or acts; or
- Non-compliance with these Advocate Program Terms or the Publisher Service Agreement.
12. NO REPRESENTATIONS
For the avoidance of doubt, the last sentence of Section 4.1 of the Publisher Service Agreement does not apply to the Advertiser-Publisher relationship. Further, Publisher agrees that it shall not, without the express written consent of Advertiser, make statements that it is doing business with any Advertiser entity or to use any brand features of Advertiser with any such permitted statement, and Publisher agrees to not make any representations, warranties or other statements concerning Advertiser, Advertiser's web site, product or services (including but not limited to pricing information, special offers, discounts, and testimonial text), Advertiser Content, or Advertiser's policies.
13. TERM AND TERMINATION
The term of these Advocate Program Terms shall be continuous, unless and until either party properly terminates these Advocate Program Terms, in accordance with the following: (i) Advertiser shall provide Publisher with seven (7) days notice, except as provided for in 12(iii) below; (ii) Publisher uses the automated system within the Network Service to drop the Program; and (iii) notwithstanding Section 2.3 of the Publisher Service Agreement, Publisher agrees and acknowledges that if Publisher breaches any provision of these Advocate Program Terms Advertiser may immediately terminate Publisher from Advertiser's Program. Upon termination of these Advocate Program Terms, Publisher must immediately remove from Publisher's web site(s) and cease using any Program Links. Advertiser intends to terminate this Agreement with any Publisher that fails to generate commissions during any consecutive 120 day period. Following termination of these Advocate Program Terms, Publisher agrees to refund any amounts that were earned from Advertiser in breach of this Agreement or the Publisher Service Agreement.
14. RESPONSIBLITY FOR SITE/INDEMNIFICATION
Publisher will be solely responsible for the development, operation, and maintenance of its web site(s) and for all content that appears on Publisher's web site(s). For example, Publisher will be solely responsible for:
- technical operation of Publisher's web site(s) and all related equipment;
- placement of Links to Advertiser as described above;
- accuracy, timeliness and appropriateness of content posted on Publisher's web site(s) (including, among other things, all of Advertiser's offers);
- any product or service offered by Publisher, including any promotions, discounts, special offers, etc., related thereto;
- ensuring that materials posted on Publisher's web site(s) do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights); and
- ensuring that content posted on Publisher's web site(s) is in compliance with these Advocate Program Terms, and not libelous or otherwise illegal.
Advertiser disclaims all liability for these matters. Further, Publisher agrees to indemnify and hold Advertiser, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from all claims, damages, demands, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of Publisher's site, use of the Advertiser Content, violation of these Advocate Program Terms, or violation of any right of another party. Publisher will permit Advertiser, at its election, to assume and control the defense of any such claim.
Advertiser may modify any provision(s) of these Advocate Program Terms upon seven (7) days notice by notifying Publisher in writing, which may be through the CJ Network Service. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures, and Program rules. If any modification is unacceptable to Publisher, the only recourse for Publisher is to terminate these Advocate Program Terms. Publisher's continued participation in the Program and compliance with such change(s) following Advertiser's notification will constitute binding acceptance of such change.
The Publisher Service Agreement, the Advertiser's detail page on CJ's Network Service and this Agreement constitute the entire agreement between Publisher and Advertiser and govern participation in the Program, superseding any prior agreements between Publisher and Advertiser. These Advocate Program Terms and the relationship between Publisher and Advertiser shall be governed by the laws of the State of California without regard to its conflict of law provisions. Notwithstanding the choice of venue in the Publisher Service Agreement, Publisher and Advertiser agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California. The failure of Advertiser to exercise or enforce any right or provision of these Advocate Program Terms shall not constitute a waiver of such right or provision. If any provision of these Advocate Program 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 the other provisions of these Advocate Program Terms remain in full force and effect. Publisher will not assign, transfer, sublicense, or otherwise delegate its rights under these Advocate Program Terms without the prior written consent of Advertiser. Any such assignment, transfer, sublicense or delegation in derogation of this provision shall be null and void.