Last Updated – March 27, 2023
Microsoft pubCenter Publisher Terms and
Conditions
IF YOUR PRINCIPAL PLACE
OF BUSINESS IS IN THE UNITED STATES, SECTION 19 CONTAINS A BINDING ARBITRATION
CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY
DISPUTE WITH MICROSOFT. PLEASE READ IT.
1. INTRODUCTION. These publisher terms and conditions are an agreement (“Agreement”)
between you ("You") and Microsoft. “Microsoft” means Microsoft Online,
Inc. (6880 Sierra Center Parkway, Reno, NV 89511 USA) unless your principal
place of business is in (a) India in which case “Microsoft” means Microsoft
Corporation (India) Private Limited (Level 10, Tower C, Epitome, Building No.
5, DLF Cyber City, Phase 3, Gurugram 122002 – Haryana, India), (b) Brazil in
which case “Microsoft” means Microsoft do Brasil Importação e Comércio de Software
e Video Games Ltda., enrolled with the CNPJ under No. 04.712.500/0001-07 (Av. Presidente Juscelino Kubitscheck 1909, Torre Sul, 18 Andar, conj. 181 – Vila
Nova Conceição, CEP: 04543-907 São Paulo/SP Brasil), or (c) Europe, the Middle
East,
or Africa
(“EMEA”) or Asia-Pacific (“APAC”) in which case “Microsoft” means Microsoft
Ireland Operations Limited (One Microsoft Place, South County Business Park, Leopardstown, Dublin, Ireland 18, D18 P521).
This Agreement incorporates by reference the terms of the Microsoft
Services Agreement (https://www.microsoft.com/en-us/servicesagreement/);
provided, however, in the event of any conflict
between the terms of the Microsoft Services Agreement that are applicable to
You and this Agreement, the terms of this Agreement shall control. This Agreement applies to Your participation
in or use of one or more of the following offerings available through Microsoft
pubCenter (collectively, "pubCenter
Programs"), including the following Microsoft pubCenter
offerings: (a) the Microsoft pubCenter offering for web publishers (“pubCenter
Program for Web Publishers”); (b) the Microsoft pubCenter
offering for mobile application developers (“pubCenter
Program for Mobile App Developers”); (c) the Microsoft pubCenter
offering for Windows applications developers (“pubCenter
Program for Win App Developers”); and (d) the Microsoft pubCenter
offering for Xbox applications developers (“pubCenter
Program for Xbox App Developers”).
Notwithstanding the foregoing, (a) if You have separately negotiated an
agreement with Microsoft covering a pubCenter
Program, that separately negotiated agreement continues to apply with respect to the applicable pubCenter Program, or (b) if
You have another type of separately negotiated agreement with Microsoft (i.e.,
not specifically covering a pubCenter Program) that
separately negotiated agreement shall apply to the extent it conflicts with the
terms of this Agreement.
2. MICROSOFT
PUBCENTER.
Subject to Your compliance with this Agreement and such other rules, policies, requirements,
and procedures as Microsoft may publish on the pubCenter
website located at http://pubcenter.microsoft.com(the "pubCenter
Site”) or as published at https://about.ads.microsoft.com/en-us/policies/home (“Policies and Guidelines - Microsoft Advertising”) or as otherwise
made available to You from time to time
(the “Policies”), You may access the pubCenter
Programs through the pubCenter website. You may
access the pubCenter Site solely to
manage Your accounts for the pubCenter
Programs (“Accounts”) for the purpose(s) described hereunder. You may
also authorize third parties (“Agents”) to access the pubCenter Site and manage Your Accounts on Your behalf;
provided, however that You will be jointly and severally responsible for the
activities of Your Agents in association with the use of the pubCenter Site.
3. PUBCENTER
CREDENTIALS. You agree not to use any false, inaccurate or misleading information when signing up for
Your Accounts, and You must
protect any passwords or other credentials associated with Your Accounts (“Credentials”), keep the Credentials
confidential and take full and sole responsibility for any use of Your Credentials and any activities occurred under Your Account. You must keep all
required registration and other Account related information up to date at all
times. If You suspect any improper or unauthorized use of Your Accounts or other security issues that may affect a pubCenter Program, You must contact Microsoft immediately
at pubhelp@microsoft.com or another email address specified by Microsoft. If we reasonably suspect that Your Accounts are at risk of
being used by a third party fraudulently (for example, as a result of an
Account compromise), or if Microsoft discovers a security breach that is
affecting a pubCenter Program, Microsoft may take
actions that Microsoft deems necessary to address or minimize the impact of the
security issue, including but not limited to suspending Your Account until You
can reclaim ownership,
requiring you to update your Credentials, or stop delivering advertising. You agree to
cooperate in a timely manner with reasonable requests from Microsoft in connection
with any security or data incidents.
4. USE OF PUBCENTER
PROGRAMS.
a) When accessing and using the pubCenter Programs, You agree to comply with the terms of
this Agreement, the Policies, and all applicable laws and regulations. You may
access and use only the pubCenter Programs for
which You have been approved by Microsoft. Approval for Your access
and use of a pubCenter Program is at Microsoft’s sole
discretion and does not provide You with any right to access and use
any other pubCenter Program without separate Microsoft
approval. In addition, You agree to access and use the pubCenter
Programs, including any associated tags, APIs, or code, (a) only in accordance
with Microsoft’s technical specifications and (b) only with Your websites (“Websites”),
mobile applications (“Mobile Apps”), Xbox applications (“Xbox
Apps”) and Windows applications (“Win Apps”) that have been approved
by Microsoft and properly registered with the pubCenter
Programs. You also agree to the Microsoft API terms of use at https://learn.microsoft.com/en-us/legal/microsoft-apis/terms-of-use, if applicable to your
access or use. For the purposes of this Agreement, Websites, Mobile Apps, Xbox
Apps, and Win Apps are referred to collectively as “Properties.” You acknowledge that Microsoft’s approval
of a Property is not a certification or endorsement of that Property. Your Properties shall at all times comply
with the Policies.
b) Advertisers’ Right to Opt
In or Opt Out. Microsoft may provide advertisers with a
list of Properties and publisher names for the purpose of allowing advertisers
to identify certain Properties and publishers on which it does or does not wish
to place its ads. Microsoft will not be
required to disclose to You whether any individual advertiser chose to exercise
this right with regard to You or Your Properties.
c) Cooperation. You will
provide, via telephone and e-mail, cooperation and assistance that Microsoft
reasonably requests related to customer service, billing and collections for
the advertisers associated with the ads that Microsoft sells within Your Properties.
d) Implementation
Responsibilities. You will:
i) Deploy identifiers or other technologies
designated by Microsoft (“Microsoft Ads SDK”), and provide information that
Microsoft reasonably requests, in accordance with Microsoft’s technical
requirements and instructions;
ii) test on Your Property the
deployment of ad formats and browsers specified by Microsoft;
iii) in a timely manner, make
reasonable efforts to cooperate to resolve problems identified during testing
of Your Property;
iv) incorporate into Your Property all guidance,
specifications, placement guidelines, documentation and other consultation
related to ads (e.g., placement, sizes, experiences, formats, etc.) that
Microsoft provides to You (if any);
v) cooperate in good faith with
Microsoft’s reasonable requests to optimize and test modifications to the Microsoft
Ads SDK to improve performance; and
vi) implement updates that Microsoft
makes to the Microsoft Ads SDK within 60 days after Microsoft makes the update
available to You.
e) Traffic
Quality and Ad Performance.
5. GENERAL PROHIBITIONS. You will not do any of the following:
a) work around any technical limitations of the pubCenter Site or any pubCenter
Program or introduce or use any device, software, or routine that interferes or
attempts to interfere with the operation of the pubCenter
Site or any pubCenter Program, or otherwise attempt
to access either of the foregoing in any ways other than those authorized by
Microsoft;
b) use any pubCenter
Program to display advertising anywhere other than on a Property that has been
approved by Microsoft and properly registered with the applicable pubCenter Program;
c) cache, store, copy, distribute, or redirect any
advertising delivered by any pubCenter Program;
d) directly or indirectly implement or distribute ad inventory, or generate, or authorize or encourage others to generate, revenue hereunder through any automated, deceptive, fraudulent or other
invalid means including but not limited to repeated manual clicks, the use of
robots or other automated query tools or computer-generated search/page
requests, clicks that are prohibited under any guidelines provided by Microsoft
or the terms of this Agreement, or the unauthorized use of other search engine
optimization services or software, or through the use of incentives (e.g. awarding users cash,
points prizes, contest entries, etc.);
e) edit, resize, modify, filter, obscure, hide,
make transparent, or reorder any advertising (including their associated links)
delivered by any pubCenter Program;
f) display advertising from any pubCenter
Program in Properties that do not have distinct, substantial and legitimate
content and purpose other than the display of advertising;
g) collect or use any user identifier created or
provided to You by Microsoft for any purpose other than passing such identifier
to a pubCenter Program as part of Your use of that pubCenter Program;
h) frame, minimize, remove, redirect, delay (e.g.,
insert interstitial ads or pop up windows) or
otherwise inhibit or modify any advertisements served by a pubCenter
Program into your Properties or the display of any web page accessed by the
links included with specific advertising;
i) take any action that imposes an
unreasonably or disproportionately large burden on Microsoft infrastructure,
including the pubCenter Site or a pubCenter
Program;
j)
display advertising from any pubCenter Program
on any portion of your Properties that violate any applicable law, statute,
ordinance or regulation (including export control), or includes materials or
links to materials that are unlawful (including the sale of counterfeit goods
or copyright piracy), obscene, pornographic, discriminatory, misleading,
deceptive, false, gambling related or religious, that constitute hate speech or
defamation, or otherwise contain materials that do not comply with the Policies
or other Microsoft policies; or that infringe on any third party’s proprietary
rights;
k)
display advertising on any portion of your Properties that are generated
by adware, spyware or P2P applications;
l) store,
distribute, copy or otherwise use or repurpose data that You receive from
Microsoft for any purpose other than to display ads in accordance with this
Agreement;
m) display advertising from any pubCenter Program on any portion of your Properties that
would download any type of unauthorized or unlawful program to a computer or
other device, or link a user to a website intended to download this type of
software; or
n) allow any ad tags (within ads served by
Microsoft) or the Microsoft Ads SDK to (A) be used by a third party,
(B) be placed anywhere other than Your Properties, or (C) display ads
anywhere other than on Your Property.
If You
engage in any of the activities prohibited by this Section 5 or otherwise
prohibited by Microsoft, or your Property violates this Section 5 or another
Microsoft requirement or the Policies, then without limiting any other rights
and remedies Microsoft may have under this Agreement, Microsoft may, as Microsoft
deems appropriate under the circumstances, do any of the following including in
order to manage advertiser satisfaction issues: credit advertisers
for ad impressions; receive “make goods” from You; withhold or deduct payments
due to You for the time period within which Microsoft determines, after
reasonable investigation, the prohibited action occurred; or suspend or terminate
Your Account.
6. REPORTS. As part of a pubCenter Program, 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 pubCenter Program. You may
not publicly publish or otherwise distribute or disclose any of these reports
to third parties and may only use these reports for Your internal
business purposes. These and similar reports are considered “Confidential
Information” as defined in Section [30].
7. ADVERTISER
PREFERENCES. As part of some pubCenter Programs, 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 a pubCenter Program, 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.
8. INVOICING AND
PAYMENT.
a) Payments. On a
monthly basis, Microsoft will pay You in arrears on a net-45 basis for
advertising displayed on or in Your Properties based upon the then-current
payment schedules if Your earned balance equals or exceeds $100 USD (the “Payment
Threshold”). If Your earned
balance equals less than the Payment Threshold, Microsoft may elect to defer
such payments (without penalty or late fee) to the next applicable payment date
that the payment due is greater than the Payment Threshold or, if such amount
has not increased in the trailing twelve month period, cancel such payment permanently
without notice. Microsoft may update the timing of the payments, payment
schedules, or minimum payment amounts at any time upon notice. If a negative amount is due to You (for
example, as result of a prior period adjustment for invalid Paid Search Ad
traffic), Microsoft may, in its sole discretion, (i)
invoice You for the negative amount, which You will pay within 45 days of
receipt, or (ii) offset such amount against future payments. 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 Microsoft (or its’ Payment Processor)
in our efforts to do this. Microsoft may also reduce or
offset Your earned balance without notice, to adjust for any previous
overpayment. You acknowledge that the amount You actually receive
will depend in part on the rates and fees imposed by Your bank or the Payment
Processor (as defined herein) and on any applicable tax withholding
requirements by U.S. legislation and the domestic legislation of Your domicile.
You must provide Microsoft (or the 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. 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 of Your Account by Microsoft and forfeiture
of amounts owed to You under this Agreement.
b) Data for Calculating
Payments; Unauthorized or Fraudulent Revenue from Ads
Served by a pubCenter Program. 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 applicable pubCenter Programs will be the sole measurement for
purposes of invoicing and payment.
Impressions, clicks, or other or actions generated by advertising that a
pubCenter Program registers as coming from IP
addresses owned or controlled by You, or clicks associated with Your violation
of this Agreement, the Policies or other applicable Microsoft requirements, are
not valid impressions, clicks, or actions.
In response to Microsoft’s request, You will provide to Microsoft
information relating to the pubCenter Program
for Your Properties, including user IP addresses, referring URL (HTTP
Referrer), user agent, and time of submission (as applicable). Microsoft will determine whether the data calculating the number of clicks,
impressions, or actions is valid, and Microsoft will not owe You payment in
connection with any data that Microsoft judges to have been generated through
invalid means or in any manner that violates the Agreement or is otherwise
inaccurate. MICROSOFT MAKES NO PROMISES
OR GUARANTEES REGARDING (A) THE NUMBER OF ADVERTISEMENTS YOU MAY EXPECT TO BE
DISPLAYED ON OR IN YOUR PROPERTIES BY A PUBCENTER PROGRAM OR (B) THE AMOUNT OF
ANY PAYMENTS YOU MAY RECEIVE.
c) Currency. All amounts owed by Microsoft under this Agreement will be expressed and
paid in the currency chosen by You in your Account; the Account may limit the
choice of currencies available for selection.
If amounts owed by Microsoft under this Agreement are described in this
Agreement in one currency and You choose a different currency, then at time of
payment Microsoft will convert its payment amounts to the equivalent amount in Your
chosen currency
based on Microsoft’s standard practices.
IF
YOU RESIDE IN CHINA,
Microsoft may remit payment to You in US dollars only. You are solely
responsible for obtaining the qualifications and/or completing relevant
necessary filings or registrations with the government authorities as required
by the applicable law, in order to accept payments in U.S dollars and convert
the payment into Your local currency.
9. PAYMENT
PROCESSING.
a) You may only receive payments
if You reside in one of our supported pubCenter
countries that are qualified to receive payments. MICROSOFT TAKES NO
RESPONSIBILITY FOR AND DISCLAIMS ANY OBLIGATIONS TO MAKE PAYMENTS TO PUBLISHERS
WHO ARE OPERATING OUTSIDE OF OUR SUPPORTED COUNTRIES.
b) Third-Party
Payment Processor. All payments are processed by a
Microsoft-designated third-party payment processor (“Payment Processor”). Microsoft may share information about You with the Payment Processor and other
third parties in order to provide
the payments.
i) Terms Applicable to Use of Stripe as Payment Processor. Payment processing services provided by Stripe are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement and using Stripe as Payment Processor, You agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Microsoft enabling payment processing services through Stripe, You agrees to provide Microsoft accurate and complete information about You and its business, and You authorize Microsoft to share such information and transaction information related to Your use of the payment processing services provided by Stripe.
ii) Terms Applicable to Use of Other
Payment Processors. Microsoft
reserves the right to change or add Payment Processors at any time in
Microsoft’s sole discretion. Your
continued engagement in the pubCenter Program may
require Your agreement to additional terms specific to additional or other
Payment Processors.
c) Payment Processor Onboarding. To enable payments, You
must have, or obtain, an appropriate account with a Payment Processor (“Payment
Processor Account”), complete any onboarding requirements the Payment
Processor or Microsoft may have, and connect Your Payment Processor Account
with Your pubCenter Account. Microsoft is not responsible for Payment
Processor’s decisions about whether to create or maintain a Payment Processor
Account for You. You are solely
responsible for maintaining Your Payment Processor Account, including the
accuracy and completeness of all information related to such account, whether
provided to the Payment Processor or to Microsoft. You acknowledge and understand that the
Payment Processor or Microsoft may, in their sole discretion, suspend or
terminate Your ability to receive payments through Your Payment Processor
Account. You must maintain the security
of Your Payment Processor Account and promptly notify Microsoft if You discover
or suspect that someone has accessed Your Payment Processor Account without
permission. You are solely responsible
for all activities that occur under or through Your Payment Processor Account
whether such actions were taken by You or not.
You authorize Microsoft to take certain actions through Your Payment
Processor Account as permitted under the Agreement and the additional terms You
agree to with the Payment Processor including communicating information about
transactions conducted through the Payment Processor Account such as charges,
refunds, adjustments, and the handling of disputes.
d) Violation
of Payment Processor Agreements. If Microsoft
receives notice that Your activity violates its agreements with the Payment
Processor, Microsoft may in its sole discretion take action against Your account
to comply with Microsoft’s obligations to the Payment Processor. Such actions may include canceling
transactions, disabling Your connection to the Payment Processor, and/or
suspending Your access to or use of the pubCenter
Programs.
e) Your Acknowledgment. You agree and acknowledge that:
i) Notwithstanding anything to the contrary
herein (including the section regarding assignment and sublicensing), Microsoft
will have no responsibility or liability for any losses or damages relating to
or arising out of the Payment Processor’s services, including but not limited
to the receipt or transmission of payments, losses or damages from misdirected
or lost payments, breaches of security, chargebacks, fraud, theft of funds,
violations of banking, money-laundering, privacy, or any other laws relating to
or arising out of the use of the Payment Processor’s services;
ii) Nothing herein is intended to limit any rights
You may have against the Payment Processor;
iii) Designation of any Payment Processor does
not represent an endorsement by Microsoft of the Payment Processor or its
services, and You will rely on Your own diligence with regard to the Payment
Processor, and You agree that You will not state or imply any such endorsement
by Microsoft; and
iv) Microsoft is not a bank or other depository
institution, payment institution, a money transmitter or a money services
business and does not offer any banking, money transmission or payment
services.
10. TAXES. Each party will
bear its own taxes in connection with the transactions under this Agreement,
and all such taxes (including but not limited to net income or gross receipts
taxes, and taxes arising from sales between a party and its customers) will be
the financial responsibility of the party who is obligated by operation of law
to pay such tax. Each party will pay to
the other party any sales, use or value added taxes that are owed by that party
solely as a result of entering into this Agreement and which are required to be
collected under applicable law. A party
may provide to the other party a valid exemption certificate, in which case the
other party will not collect the taxes covered by such certificate. If any taxes are required to be withheld on
payments made by one party to the other, the paying party will deduct such
taxes from the amount otherwise owed and pay them to the appropriate taxing
authority. The paying party will secure
and deliver to the other party an official receipt for those withholdings and
other documents reasonably requested by the other party in order to claim a
foreign tax credit or refund. The
parties will use reasonable efforts to ensure that any taxes withheld are
minimized to the extent possible under applicable law.
11. DATA AND TRADEMARKS.
a) Microsoft will collect data
about Your use of a pubCenter Program and
its performance in connection with Your Properties. As between You and
Microsoft, Microsoft owns and controls all data collected in connection with pubCenter Programs or from Microsoft online properties,
apps, and other technology like our tags, pixels, or other unique tracking codes
(“pubCenter Data”). You understand and
acknowledge that Microsoft uses pubCenter Data for
its own purposes, including to (a) generate aggregated reports that may be
viewed by Microsoft’s clients and partners, (b) improve the pubCenter
Program and other Microsoft advertising products and services and optimize
their performance and (c) provide campaign reporting to advertisers whose
advertising was displayed on Your Properties or otherwise related to reporting
and performance analysis. In addition, with respect to the pubCenter Program for Mobile App Developers and the pubCenter Program for Win App Developers, Microsoft will
have the right to, without any additional consent or approval from You, share
with advertisers and partners (e.g., ad networks or exchanges)
information specific to Your Mobile Apps and Win Apps including, without
limitation, the Mobile App’s or Win App’s name, Your name as publisher of the
Mobile App or Win App, impression data and targeting availability. You expressly agree to worldwide
disclosure and transfer of data described in this Section 11 to Microsoft
without any charge. If Microsoft makes
available to You reports or other information related to Your Properties, upon
Microsoft’s request, You will provide screenshots or other
representations of such reports and information to Microsoft, and You agree
that Microsoft may copy, distribute and otherwise use these reports and
information solely to provide and promote the pubCenter
Program, and promote Microsoft’s relationship with You to potential advertisers. Microsoft does not share personal information
that may be contained in pubCenter Data collected as
a result of Your use of pubCenter Programs with third
parties in any way that identifies individuals personally. To the extent such pubCenter Data is also personal information, we collect,
use, and disclose such data as described in the Microsoft Privacy Statement
available at https://privacy.microsoft.com/en-us/privacystatement.
b) You grant to Microsoft a
worldwide, nonexclusive, royalty-free, fully paid-up license to display and
otherwise use Your trademarks and trade names that You provide to Microsoft in
writing (including via email) (the “Publisher
Marks”) for the purposes of providing and promoting the pubCenter Programs. Microsoft will comply
with Your trademark usage guidelines that You provide to Microsoft in
writing. All goodwill, rights, and benefits in the Publisher Marks
that arise from Microsoft’s use under this Agreement will inure solely
to You.
12. PRIVACY. Nothing in this Agreement
provides for the collection or transfer between You and Microsoft of
any personally identifying information of an end user without the
express consent of the end user. You must maintain and comply with a posted
privacy policy on Your Properties and must use the pubCenter Programs and all other Microsoft technologies in
a manner consistent with this privacy policy. You assume all liability for the
collection, use and disclosure of data related to users of Your Properties
and You will comply with all applicable laws and regulations in Your
collection, use and disclosure of this data. Microsoft does not intend to share
any personally identifying information under this Agreement with You.
However, to the extent that Microsoft does share any information with You that
could be considered “personal information” or “personal data” under the
California Consumer Privacy Act ("CCPA”), the General Data
Protection Regulation (“GDPR”), or any other applicable privacy law, You
are prohibited from: (i) selling or sharing such personal
information unless the consumer is first provided notice and an opportunity to
opt out of the sale or sharing in the United States; or (ii) retaining, using,
or disclosing such personal information for any purpose other than for the
specific purpose intended when it was shared. You will comply with all
applicable obligations under the CCPA, GDPR and other applicable privacy laws
and will provide the level of privacy protection required of your business. You
will notify Microsoft if you determine that you can no longer comply with this section
of the Agreement, and you will maintain reasonable security procedures and
practices appropriate to the nature of the personal information to protect the personal
information from unauthorized or illegal access, destruction, use,
modification, or disclosure.
13. CONSUMER NOTICES. You will maintain a privacy
policy, along with consumer privacy notices that refer
to Your privacy policy, that are all prominently visible on or in Your
Properties and all of Your websites. Your privacy policies and notices must be
based on then-current laws, regulations and industry best practices and must
include at a minimum: (a) a full, accurate and clear disclosure regarding the
placement, use and reading of cookies (if applicable) and related technologies,
and any collection, sharing and use of data related to activity by users; (b)
Your use of Microsoft and/or other third party ad providers and a pubCenter Program for the delivery of advertising and data
collection by Microsoft and/or other third party ad providers in connection
with the pubCenter Program; (c) explicitly
obtain affirmative user consent prior to collecting or using user-related
information; and (d) a disclosure that users may choose to not participate
in Microsoft’s or other third-party ad providers’ personalized advertising
services, along with a clear, meaningful and prominent link (such as in the
footer of its website) to Microsoft-specified web address at https://choice.live.com/AdvertisementChoice/ or other industry
opt-out tools approved by Microsoft where users may "opt out" of such
personalized advertising services. Currently approved industry
opt-outs include without limitation, www.networkadvertising.org/ or the
Self-Regulatory Program for Behavioral Advertising Consumer Choice opt-out page
located at www.AboutAds.info for the US and Canada or http://www.youronlinechoices.eu/ for Europe, or the
applicable laws and regulations in the People’s Republic of China in this
regard. If at any time after acceptance of these terms specific US
and/or legislation of any country applicable to You or Your Properties provides
for additional legal requirements to Your Properties or relevant activities
(e.g., data collection), You agree to immediately adjust Your Properties so
that they become compliant with all applicable legislation regardless of any
notice from Microsoft in this regard. You agree that You are solely
liable for complying with any and all applicable legislation from the countries
where Your Properties are developed and intended to be made available or
legislation that is otherwise applicable to You.
14. SUPPORT AND
FEEDBACK. Microsoft
is not obligated to provide any technical or other support to You for
the pubCenter Programs. If You give
feedback about the pubCenter Programs 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 14 will survive
any termination of this Agreement or any termination of Your rights to use the pubCenter Programs. In addition, if You receive
any feedback, comments, or complaints from users of Your Properties about any
advertising delivered by the pubCenter Programs, You
will promptly forward this information to pubhelp@microsoft.com.
15. USE OF THIRD-PARTY
ADVERTISING PLATFORMS. You have the
option of authorizing the serving of ads from third-party advertising serving
platforms (e.g., Google AdSense) with whom you have an account (the “Third Party Platform Program”). If you would like to participate in the Third
Party Platform Program, you will need to configure the settings for ad
placement in your Account, supply the requested authentication and
authorization, and comply with the third party platform’s applicable terms and
policies (including privacy rules). If
you have elected to participate in the Third Party Platform Program, you will
be prompted to log into your account with the third party platform and to
authorize Microsoft to have access to such account and data to facilitate ad
serving and other related activities (e.g., reporting). Microsoft will have no
responsibility or liability for any losses or damages relating to or arising
out of use of the Third Party Platform Program or its functionality in
connection with a pubCenter Program.
16.PUBLICITY/INFORMATION
REQUESTS. You
may not 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 Microsoft’s prior written consent.
In addition, You may not use Microsoft’s name, trade name, service
marks, trademarks, trade dress or logo in publicity releases, advertising or
similar activities without Microsoft’s prior written consent and compliance
with the Microsoft Trademark Guidelines.
17. RESERVATION OF
RIGHTS. Microsoft retains
ownership of all intellectual property rights associated with the pubCenter Programs and the pubCenter
Site, its technology and any enhancements or modifications thereof. As between
Microsoft and You, You retain all intellectual property rights in the contents
of Your 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.
18. WARRANTIES. At all times during the term of this Agreement, You
represent, warrant and undertake to Microsoft that:
a) You have the power and authority to enter into
this Agreement and to fully perform Your obligations under this Agreement;
b) You are a business or sole
proprietor and not a consumer;
c) You are authorized to act on behalf of any third
party for which You facilitate participation in the pubCenter
Programs;
d) 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 a pubCenter
Program on or in Your Properties, including without limitation, the internet
content provider permit, as applicable;
e) Your Properties, including all activities
carried on or through Your Properties, comply with all applicable laws and
regulations;
f) Your Properties (including the content available
on or through Your Properties) do not infringe, misappropriate or otherwise
violate any third-party intellectual property right;
g) Your Properties do not violate the rights of any
person or entity, including, without limitation, rights of publicity or
privacy, and are not defamatory, misleading,
false, libelous, obscene, unlawful, or injurious to any third party;
h) Your transfer and disclosures of data to
Microsoft are compliant with all applicable data protection laws; and
i) The
information You provide to Microsoft under or in connection with this
Agreement is true, accurate, current, and complete and not misleading.
If
the person agreeing to these terms is an individual acting on behalf of a
business or sole proprietorship, such person hereby represents and warrants
that they are authorized to act on behalf of such business or sole
proprietorship and that they are at least the older of 18 years of age or the
age of majority in their applicable jurisdiction.
19. BINDING
ARBITRATION AND CLASS ACTION WAIVER IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN
THE UNITED STATES. We hope we never have a dispute, but if we
do, You and we agree to try for 60 days to work it out informally. If we can’t,
You and we agree to binding individual arbitration before the American
Arbitration Association (“AAA”) under the Federal Arbitration Act, and not to
sue in court in front of a judge or jury. Instead, a neutral arbitrator will
decide. Class action lawsuits, class-wide arbitrations, private
attorney-general actions, and any other proceeding where someone acts in a
representative capacity aren’t allowed. Nor is combining individual proceedings
without the consent of all parties. This Section applies to any
dispute EXCEPT DISPUTES RELATING TO
THE ENFORCEMENT OR VALIDITY OF YOUR, YOUR LICENSORS’, MICROSOFT’S, OR
MICROSOFT’S LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The term
“dispute” means any dispute, action, or other controversy
between You and Microsoft concerning the pubCenter
Programs (including their price) or this Agreement, whether in contract,
warranty, tort, statute, regulation, ordinance, or any other legal or equitable
basis. “Dispute” will be given the broadest possible meaning allowable under
law.
The complete Arbitration Agreement and Class
Action Waiver contains more terms and is at https://about.ads.microsoft.com/en-us/resources/policies/class-action-waiver-and-binding-arbitration. You and we agree to it. Please read it.
20. DISCLAIMER
OF WARRANTIES. MICROSOFT PROVIDES THE
PUBCENTER SITE AND PUBCENTER PROGRAMS "AS-IS," "WITH ALL
FAULTS," AND "AS AVAILABLE." YOU BEAR THE RISK OF USING THE
PUBCENTER SITE AND PUBCENTER PROGRAMS TO DISPLAY ADVERTISING ON OR IN YOUR
PROPERTIES. TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAW, MICROSOFT EXCLUDES
ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF
PRODUCT LIABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT, RELATING TO THE PUBCENTER SITE AND PUBCENTER PROGRAMS. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THESE
TERMS IS INTENDED TO AFFECT THOSE RIGHTS, IF THEY ARE APPLICABLE. WITHOUT LIMITING ANY OF THE FOREGOING, YOU ACKNOWLEDGE THAT COMPUTER AND
TELECOMMUNICATIONS SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME
OCCUR. MICROSOFT
EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE
PUBCENTER SITE AND PUBCENTER PROGRAMS WILL BE UNINTERRUPTED, SECURE, OR ERROR
FREE.
IF YOU LIVE IN
AUSTRALIA, there are guarantees that are implied under the Australian Consumer
Law that may apply to the goods and services supplied to You as part
of the pubCenter Programs (the “AU Guarantees”).
Should the AU Guarantees apply to You, then these AU Guarantees are not
included in the disclaimers and exclusions specified by this Section 20. For
those pubCenter Programs that include services
(rather than goods), should Microsoft breach any of the AU Guarantees, Your
remedy is limited to receiving the supply of the service again or the payment
of the cost of having the services supplied again. For those pubCenter Programs that includes goods (which includes
computer software), the goods come with AU Guarantees that cannot be excluded
under the Australian Consumer Law and You are entitled to a replacement or
refund for a major failure and compensation for any other reasonably
foreseeable loss or damage. You are also entitled to have the goods repaired or
replaced if the goods fail to be of acceptable quality and the failure does not
amount to a major
failure. In the case of software, the repair of goods may not be practicable,
and a replacement will be provided if this is the case. For
any AU Guarantees related issues, please contact pubhelp@microsoft.com.
21. EXCLUSIONS AND LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, IN NO EVENT WILL MICROSOFT BE LIABLE TO YOU 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 MICROSOFT HAD BEEN ADVISED OF
THE POSSIBILITY 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 OR LOSSES OF ANY CLASS OR KIND IN EXCESS OF AMOUNTS REMAINING DUE AND
PAYABLE TO YOU UNDER A PUBCENTER PROGRAM. HOWEVER, NONE OF THE FORGOING
LIMITATIONS WILL APPLY TO MICROSOFT’S INDEMNIFICATION OBLIGATION UNDER SECTION
22 (INDEMNIFCATION). NOTHING IN THIS
SECTION 21 WILL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER TO EXCLUDE OR
RESTRICT LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM MICROSOFT’S
NEGLIGENCE, FRAUD, OR GROSS NEGLIGENCE OR WILLFUL INTENT. SOME OR ALL OF THESE
LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IF YOUR STATE,
PROVINCE, OR COUNTRY DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL,
CONSEQUENTIAL OR OTHER DAMAGES.
22. INDEMNIFICATION.
a) By You. You will defend,
indemnify and hold Microsoft and Microsoft’s affiliates, agents and employees,
harmless from all losses, damages, liability and expenses (including reasonable
attorneys' fees) from any third-party claims, proceedings or suits resulting
from or related to (i) any improper use by You or
Your Agents of the pubCenter Programs, (ii) any
access or use by third parties of the pubCenter
Programs through Your Account or with Your Credentials; (iii) any improper use
of any tags, IDs, code, or the Microsoft Ads SDK related to the pubCenter Programs that are provided to You, (iv) Your breach
of the Policies, Your warranties or any other term or provision of this
Agreement; (v) Your Properties and (vi) Your collection, use and disclosure of
user related data.
b) By Microsoft. Microsoft will defend, indemnify and hold You
harmless from and against any and all losses, damages, liability and expenses
from any third-party claims, proceedings, or suits that arise out of a claim
that the pubCenter Programs or pubCenter
Site, when accessed or used in accordance with this Agreement and all
applicable Microsoft policies and technical requirements, 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 (through mutually agreed counsel) to answer
and defend the claim. The Indemnifying Party will not settle the claim against
the Indemnified Party without the Indemnified Party's prior written consent. The Indemnifying Party will not be
responsible for any settlement made by the Indemnified Party without the Indemnifying
Party’s consent.
The Indemnified Party (at its cost) may participate in the defense and
settlement of the claim with counsel of its own choosing.
23. TERM AND
TERMINATION. The
term of this Agreement will become effective upon Your access of
either the pubCenter Site or a pubCenter
Program and continue until terminated by either You or Microsoft as provided by
this Section 23. You may cancel Your Accounts and terminate this
Agreement at any time by providing written notice to Microsoft. Microsoft will
have the right to terminate or suspend, entirely or in part, Your use of the pubCenter Site and pubCenter
Programs at any time upon notice with respect to either all or some of Your
Properties without cause or explanation. In addition, if Microsoft reasonably
believes that You have breached this Agreement or that any of Your Properties
are in violation of any applicable laws, regulations or Microsoft policies
(whether internal or external), then Microsoft will have the right to
immediately terminate or suspend, entirely or in part, Your use of the pubCenter Site and pubCenter
Programs with respect to either all or some of Your Properties. Except for
payments due and payable to You under a pubCenter
Program, Microsoft will have no liability to You for any termination or
suspension under this Section 23.
24. 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 through the pubCenter
Site. Microsoft may provide notice to You via email or through the pubCenter Site. All notices that You provide to
Microsoft under this Agreement must be sent to pubhelp@microsoft.com. Microsoft may
disclose Your or Your designated agent’s business contact information
as necessary for Microsoft to administer this Agreement through its affiliates
and other third parties that help Microsoft administer this Agreement.
25. ASSIGNMENT AND
SUBLICENSE. Microsoft
may assign this Agreement to a Microsoft affiliate at any time. You may not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of Microsoft. Microsoft may also delegate 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.
26. VENUE, CHOICE OF LAW. If you live in (or, if a
business, your principal place of business is in) the United States, the laws
of the state where you live (or, if a business, where your principal place of
business is located) govern all claims, regardless of conflict of laws
principles, except that the Federal Arbitration Act governs all provisions
relating to arbitration. If your principal place of business is in any other
country, Nevada, USA law governs, regardless of conflict of laws
principles. You and Microsoft 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 or a pubCenter Program that are heard in court (not arbitration
and not small claims court).
27. 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 pubCenter Programs or any
other Microsoft product or service to any third party.
28. UPDATES. Microsoft may update
this Agreement at any time in its sole discretion by
providing You with notice of the update (“Update Notice”).
Following Microsoft’s provision to You of an Update Notice, by
continuing to access and use either the pubCenter
Site or a pubCenter Program You agree to be bound by
the updated version of this Agreement referenced in the Update Notice.
If You do not agree with an update, do not continue to access and use
the pubCenter Site and pubCenter
Programs and immediately notify Microsoft that You are terminating this
Agreement. Your continued access or use of either the pubCenter
Site or a pubCenter Program binds You to
any updates to this Agreement specified in an Update Notice.
29. LANGUAGE. It
is the express wish of the parties that this Agreement and all related
documents be in English. C’est la volonté expresse des parties que
la présente convention ainsi que les documents qui s’y rattachent soient
rédigés en anglais.
30. Confidentiality. Neither
party will disclose the other’s Confidential Information to third
parties. Each party will use the other’s Confidential Information
only for purposes of the business relationship. Each party agrees to take
reasonable steps to protect the other’s Confidential Information. A
party may disclose the other’s Confidential Information to its affiliates,
employees and contractors only, so long as the disclosing party remains
responsible for any unauthorized use or disclosure. These disclosures may be
made only on a need-to-know basis, subject to the obligations of this Section.
“Confidential Information” means non-public information, know-how and
trade secrets in any form, which is designated as confidential, or a reasonable
person reasonably should understand to be confidential. The following types of
information, however marked, are not confidential information: information that
(i) is, or becomes, publicly available without a
breach of this Agreement; (ii) is lawfully known to the receiver of the information
without an obligation to keep it confidential; (iii) is received from another
source who can disclose it lawfully and without an obligation to keep it
confidential; (iv) is independently developed without reference to the other
party’s Confidential Information; or (v) is a comment or suggestion one party
volunteers about the other’s business, products or services. Each
party may disclose the other’s Confidential Information if required to comply
with a court order or other government demand that has the force of law. Before
doing so, the receiving party must seek the highest level of protection
available and, when possible, give the disclosing party enough prior notice to
provide a reasonable chance to seek a protective order for its Confidential Information.
If You and Microsoft
Corporation have entered into a standard Microsoft Corporation Non-Disclosure
Agreement (“NDA”), then the terms most favorable to Microsoft between
this Agreement and the NDA will prevail.
31. Export Controls. The
Parties acknowledge that the devices, services, software, and related
technology (“Items”) may be subject to U.S. and other countries’ export
jurisdictions. Each Party will comply with all laws and regulations applicable
to the import or export of the Items, including but not limited to trade laws
such as the U.S. Export Administration Regulations and International Traffic in
Arms Regulations, and sanctions regulations administered by the U.S. Office of
Foreign Assets Control (“OFAC”) (“trade laws”). You will not take any action
that causes us to violate U.S. or other applicable trade laws. In the event that you learn of a potential violation of
trade laws relating to the performance of this Agreement, or a potential
violation of the terms in this subsection, it will alert us as soon as
possible, but in no event more than 14 days after acquiring this knowledge. We
may suspend or terminate this Agreement to the extent that we reasonably
conclude that performance would cause us to violate U.S. or other applicable
trade laws, including those described above, or put it at risk of becoming the
subject of economic sanctions under such laws. For additional information
related to exporting, see http://www.microsoft.com/exporting.
32. Anti-Bribery/Anti-Corruption. You represent and warrant
that you have reviewed and will comply with the Anti-Corruption Policy for
Microsoft Representatives available at http://www.microsoft.com/en-us/Legal/Compliance/anticorruption. You will provide annual
training to your employees who resell, distribute, or market Microsoft products
or services on compliance with Anti-Corruption Laws. You represents and warrants that this Anti-Corruption training
has been provided to its employees and, if not, you agree to participate
annually in online Anti-Corruption training made available free of charge
by us and certify its completion, understanding, and compliance with the
Anti-Corruption Policy for Microsoft Representatives.