Microsoft pubCenter Publisher Agreement
This agreement (“Agreement”) contains the terms of the relationship between you (the “Publisher” accepting this Agreement) and Microsoft Corporation and its affiliates (“Microsoft”) relating to your use of the Microsoft pubCenter service ( “Service”) for the display of advertising on or in your websites, applications or widgets (“Properties”).
By clicking “I accept” and/or by using the Service, Publisher represents that the person accepting this Agreement has the requisite authority to accept this Agreement on behalf of Publisher and is at least 18 years old. In addition, Publisher agrees to be bound by the terms and conditions contained in this Agreement as of the date of such acceptance (the “Effective Date”).
1. Term and Termination. This Agreement begins on the Effective Date and will continue until terminated by either you or Microsoft. Microsoft will have the right to terminate or suspend your use of the Service at any time for any or no reason without notice with respect to either all of your Properties or specific Properties. You may cancel your account at any time by providing written notice to Microsoft.
2. Use of Service. When using the Service, you agree to comply with the terms of this Agreement, all applicable laws and regulations and the then current Microsoft pubCenter Rules (“Rules”). The current version of the Rules is available here. Any references to “sites” or “websites” in the Rules or any other requirements provided to you by Microsoft will be deemed to apply to any websites, applications, and widgets that you use in connection with the Service to the fullest extent possible.
3. Technical Requirements. You will access and use the Service, including any tags, APIs or code provided to you by Microsoft, only (a) in accordance with Microsoft’s technical specifications and (b) with Properties that has been approved by Microsoft and properly registered with the Service. In addition, for Properties made available on mobile devices, you will only pass to the Service, without modification, valid user locational data that has been accessed and used by your Properties with the user’s consent.
4. Paid Search Ads. If you elect to include advertising on or in your Properties that is delivered in response to a search query initiated by a user (“Paid Search Ads”), the following additional requirements will apply to you and your use of the Service:
· Paid Search Ads may not be displayed unless algorithmic results provided by Microsoft are also returned;
· you must display both Paid Search Ads and algorithmic results on the same page and in a manner that clearly identifies which of the results are advertisements;
· Paid Search Ads must be attributed to Microsoft in a manner that is clear to the user; and
· Paid Search Ads may not be displayed simultaneously with any other search advertisements provided by a third party.
5. Mobile Properties. For Properties made available specifically for mobile devices, the following additional requirements will apply to you and your use of the Service:
· no more than one advertisement may be displayed within your Property at any time; and
· auto-refreshing of advertising (including switching between advertising displayed by multiple ad controllers) may not occur more frequently than once every 30 seconds.
6. Prohibitions. You may only use the Service as expressly permitted in this Agreement and you must comply with any technical limitations of the Service that allow you to use it only in certain ways. You will not do any of the following with respect to the Service:
· work around any technical limitations of the Service or introduce or use any device, software, or routine that interferes or attempts to interfere with the operation of the Service or otherwise attempt to access the Service in any manner other than those authorized by Microsoft;
· use the Service to display advertising on or in any website, application or widget other than a Property that has been approved by Microsoft;
· cache, store, copy, distribute, or redirect (to any Property other than to the Property for which an ad is originally targeted by the Service) any advertising delivered by the Service;
· directly or indirectly generate impressions or clicks on an advertising, or authorize or encourage others to do so, through any automated, deceptive, fraudulent or other invalid means or through the use of incentives (e.g. awarding users cash, points prizes, contest entries, etc.);
· edit, resize, modify, filter, obscure, hide, make transparent or reorder any advertising (including their associated links) supplied by the Service;
· display advertising in Properties that do not have distinct, substantial and legitimate content and purpose other than the display of advertising;
· collect or use any user identifier created or provided to you by Microsoft for any purpose other than passing such identifier to the Service as part of your use of the Service; or
· frame, minimize, remove, redirect, delay or otherwise inhibit or modify the display of any web page accessed by the links included with specific advertising.
7. Service Accounts. Microsoft will provide you with an account for your use of the Service (your “Account”). Only you may use your Account and you must keep all required registration and account related information up to date at all times. You must keep your Account and associated password confidential and not allow any third party to access or use the Service or any of its components through your Account or otherwise. You must contact Microsoft immediately at email@example.com if you suspect misuse of your Account or any security breach in the Service.
8. Reports. As part of the Service, Microsoft may provide you with access to online reporting systems to view and use a variety of online reports related to your use of the Service. You may only use these reports for your internal business purposes and you may not share them with third parties.
9. Advertiser Preferences. As part of the Service, Microsoft may provide you with functionality and features that allow you to specify your preference regarding the display of advertising from certain advertisers or groups of advertisers on or in your Properties. If this functionality is provided through the Service, it will be your responsibility to specify and maintain your preferences. However, Microsoft does not guarantee that all advertising served on or in your Properties will meet or otherwise be subject to the preferences that you specify.
10. Invoicing and Payment. On a monthly basis, Microsoft will pay you for advertising displayed on or in your Properties based upon the then-current payment schedules if your earned balance exceeds the then-current minimum payment amounts specified by Microsoft. Payment schedules and minimum payment amounts are further described in the payment policy (“Payment Policy”), a current copy of which is available here.
11. Payment Processing. Microsoft is not responsible for delay, loss or misapplication of funds due to incorrect or incomplete information supplied by you or a bank or for failure of a bank to credit your account. If you are outside of the United States of America, Microsoft may remit payment to you in the local currency of your address for payment using Microsoft’s then current rates for converting USD into your local currency. You acknowledge that the amount you actually receive will depend in part on the rates and fees imposed by your financial institution and on any applicable tax withholding requirements. You must provide Microsoft (or its third party payment processor) with all financial, tax and banking information requested in order to make payment of amounts owed under this Agreement. Microsoft will notify you of any changes to the required information via updates to the Payment Policy. Failure to provide such information within 60 days after creation of your Account or failure to keep such information current and accurate may result in the closing or your Account by Microsoft and forfeiture of amounts owed to you under this Agreement. In addition, if you receive a payment that was not due to you, Microsoft may reverse or seek return of that payment and you agree to cooperate with us in our efforts to do this. Microsoft may also reduce your earned balance without notice to adjust for any previous overpayment.
12. Taxes on payments. You are responsible for your own taxes, including taxes unique to where you reside, related to payments you may receive under this Agreement. If taxes are required to be withheld on any amounts to be paid by Microsoft (and, if applicable, its third party payment processor) to you, Microsoft will deduct such taxes from the amount owed and pay them to the appropriate taxing authority and will secure and deliver to you an official receipt for any such taxes withheld.
13. Impressions. To the extent that payment is based on the number of clicks, impressions, or actions generated by advertising that is displayed on or in your Properties, reports generated by the Service will be the sole measurement for purposes of invoicing and payment. Impressions or clicks that the Service registers as coming from IP addresses owned or controlled by you, or clicks associated with your violation of this Agreement or any of the Rules, are not valid impressions or clicks. Microsoft makes no guarantee regarding (a) the number of advertisements you may expect to be displayed on or in your Properties by the Service or (b) the amount of any payments you may receive.
14. Confidentiality Obligation. During the term of this Agreement, and for five (5) years thereafter, you will hold in confidence, and will not use or disclose to any third party (other than in response to lawful requests from law enforcement authorities or to permitted contractors to the extent they are performing your obligations under this Agreement subject to confidentiality obligations that are at least as protective as those contained in this Section 13), any Confidential Information. The term “Confidential Information” means all non-public information that Microsoft designates, either in writing or verbally, as being confidential, or which, under the circumstances of disclosure, ought to be treated as confidential. Confidential Information includes information relating to (i) Microsoft’s business policies or practices, (ii) Microsoft’s customers or suppliers and (iii) information received from others that Microsoft is obligated to treat as confidential, but does not include information that was known to the you prior to disclosure by Microsoft, or information that becomes publicly available through no fault of yours. With respect to the Service, all of the information and materials that you receive or are given access to on the non-public portions of the Service’s website, (including, without limitation, the portions demonstrating the performance of the Services), and any other web page associated with those portions of the site, are Confidential Information. If you have any questions as to what information is Confidential Information, you agree to consult with Microsoft.
15. Data. Microsoft will collect data about your use of the Service and its performance in connection with your Properties. Microsoft may use this data to generate aggregated reports that may be viewed by Microsoft’s clients and partners. Microsoft may also use this data to (a) improve the Service and optimize its performance and (b) provide campaign reporting to advertisers whose advertising was displayed on your Properties. In addition, for Properties made available specifically for mobile devices, Microsoft will have the right to share with advertisers and partners information specific to the Properties including, without limitation, the Property’s name, impression data and targeting availability.
18. Support and Feedback.Microsoft is not obligated to provide any technical or other support to you for the Service. If you give additional feedback about the Service to Microsoft, then you grant to Microsoft, without charge, the right to use, share, and commercialize your feedback in any way and for any purpose. You also grant to third parties, without charge, any patent rights necessary for their products, technologies and services to use or interface with any specific parts of a Microsoft software or service that incorporates your feedback. You will not give feedback that is subject to a license that requires Microsoft to license its software or documentation to third parties because Microsoft includes your feedback in our software or documentation. These rights that you grant to Microsoft and third parties in this Section 17 will survive any termination of this agreement or any termination of your rights to use the Service. In addition, if you receive any feedback, comments, or complaints from users of your Properties about any advertising delivered by the Service, you will promptly forward this information to firstname.lastname@example.org.
19. Publicity/Information Requests.Neither you nor Microsoft may cause or permit to be released any publicity, advertisement, news release, public announcement, or denial or confirmation of the same, in whatever form, regarding any aspect of this Agreement or the relationship between you and Microsoft, without the other party’s prior written approval. In addition, neither you nor Microsoft may use the other party’s name, trade name, service marks, trademarks, trade dress or logo in publicity releases, advertising or similar activities without the prior written consent of the other party.
20. Reservation of Rights. Microsoft retains ownership of all intellectual property rights associated with the Service, its technology and any enhancements or modifications thereof. As between Microsoft and you, you retain all intellectual property rights in the contents of the Properties, other than such content as Microsoft or its clients may supply. Microsoft’s clients will retain all right to the advertising displayed on your Properties.
21. Warranties. You represent and warrant to Microsoft that:
· You have the power and authority to enter into this Agreement and to fully perform your obligations under this Agreement;
· You have obtained any and all consents, approvals or licenses (including written consents of third parties where applicable) required for the display of advertising by the Service on or in your Properties; and
· The information you provide to Microsoft under or in connection with this Agreement is true, accurate, current, and complete.
22. DISCLAIMER OF WARRANTY. MICROSOFT PROVIDES THE SERVICE "AS-IS," "WITH ALL FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING THE SERVICE TO DISPLAY ADVERTISING ON OR IN YOUR PROPERTIES. TO THE EXTENT PERMITTED BY LOCAL LAW, MICROSOFT EXCLUDES ANY IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE SERVICE. WITHOUT LIMITING ANY OF THE FOREGOING, MICROSOFT EXPRESSLY DISCLAIMS ANY WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
23. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR THAT RELATE IN ANY WAY TO THIS AGREEMENT OR ITS PERFORMANCE. THIS EXCLUSION WILL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED, WHETHER THE PARTIES HAD BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, OR WHETHER APPLICATION OF THE EXCLUSION CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. IN ADDITION, MICROSOFT WILL NOT BE LIABLE TO YOU FOR DAMAGES IN EXCESS OF AMOUNTS REMAINING DUE AND PAYABLE TO YOU UNDER THIS AGREEMENT. HOWEVER, NONE OF THE FORGOING LIMITATIONS WILL APPLY TO A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 23 (INDEMNIFCATION) OR A PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13 (CONFIDENTIAL INFORMATION).
(a) By Company. You will indemnify and hold Microsoft and Microsoft’s affiliates, agents and employees, harmless from all loss, liability and expense (including reasonable attorneys' fees) from any third-party claims, proceedings or suits resulting from or related to (i) your use of the Services , (ii) any access or use by third parties of the Services through your account; (iii) the use of any tags, IDs, or code related to the Service that are provided to you, (iv) your breach of the Rules or any other term or provision of this Agreement; (v) the Properties and (vi) your collection of user related data.
(b) By Microsoft. Microsoft will defend, indemnify and hold Company and its Clients harmless from and against any and all third-party claims, actions, losses, damages, liability, costs and expenses that arise out of a claim that the Service, when used in accordance with this Agreement, infringes the intellectual property rights of any third party.
(c) Requirements for indemnification. In connection with any claims subject to the indemnification obligations above, the party receiving indemnification (“Indemnified Party”) will (i) give the other party (“Indemnifying Party”) prompt written notice of the claim, (ii) cooperate with the Indemnifying Party (at the Indemnifying Party's expense) in connection with the defense and settlement of the claim, and (iii) permit the Indemnifying Party to control the defense and settlement of the claim with counsel reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle the claim against the Indemnified Party without the Indemnified Party's prior written consent. The Indemnified Party (at its cost) may participate in the defense and settlement of the claim with counsel of its own choosing.
25. Contacts and Notice. You must identify an individual to serve as the primary contact under this Agreement. This primary contact will be the default administrator for this Agreement and will receive all notices unless you change the primary contact by updating your Account information at https://pubcenter.microsoft.com/. All notices that you provide to Microsoft under this Agreement must be sent to email@example.com. Microsoft may disclose your contact information as necessary for Microsoft to administer this Agreement through its Affiliates and other third parties that help Microsoft administer this Agreement.
26. Assignment and Sublicense. Microsoft may assign this Agreement at any time. You may not assign this Agreement or any rights or obligations hereunder without providing prior written notice to Microsoft of such assignment. Microsoft may sublicense its rights under this Agreement to third parties to assist Microsoft in performing its obligations under this Agreement, provided that Microsoft will be responsible for the performance of those third parties subject to the terms of this Agreement.
27. Venue, Choice of Law. This Agreement is governed by the laws of the state of Washington, USA, which apply to the interpretation of this Agreement and to any claims for breach of it, regardless of conflict of laws principles. You irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in King County, Washington, USA for all disputes arising out of or relating to this Agreement. Any claim related to this Agreement or to the Microsoft Service must be brought within one year of the event giving rise to the claim. If it is not filed within that time, then the claim is permanently barred. This applies to you and your successors and to Microsoft and our successors and assigns.
28. Survival; Non-Exclusivity. Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive. This Agreement is nonexclusive, and nothing in this Agreement may be construed as restricting Microsoft from offering the Service to any third party.
29. Updates. Microsoft may update this Agreement at any time in its sole discretion. Microsoft recommends that you review this Agreement for updates each time you use the Service. By continuing to use the Service, you agree to be bound by the terms and conditions contained in the Agreement then in effect on the date of submission. If you do not agree with an update, do not continue to use the Service and immediately notify Microsoft that you are terminating this Agreement. Your continued use of the Service binds you to any changes to this Agreement.