Last Updated – October 9, 2014
Microsoft pubCenter Publisher Terms and Conditions
IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES, SECTION 22 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 ("Publisher" or "You") and Microsoft Online, Inc., located at 6100 Neil Road, Reno, NV 89511 USA ("Microsoft"). Unless You have separately negotiated an agreement with Microsoft covering a pubCenter Program, this Agreement applies to Your participation in or use of one or more of the following Microsoft pubCenter programs (the following, collectively, “pubCenter Programs”): (a) the Microsoft pubCenter program for web publishers (“pubCenter Program for Web Publishers”); (b) the Microsoft pubCenter program for mobile application developers (“pubCenter Program for Mobile App Developers”); (c) the Microsoft pubCenter program for Windows applications developers (“pubCenter Program for Win App Developers”); and (d) the Microsoft pubCenter program for Xbox applications developers (“pubCenter Program for Xbox App Developers”).
2. MICROSOFT PUBCENTER. Subject to Your compliance with this Agreement and such other rules and procedures as Microsoft may publish from time to time, You may access the pubCenter Programs through the pubCenter website ("pubCenter Site”) located at http://pubcenter.microsoft.com. You may access the pubCenter Site solely to manage Your accounts for the pubCenter Programs (“Accounts”) for the purpose described hereunder only. 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 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 Accounts or 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, You must contact Microsoft immediately at firstname.lastname@example.org.
4. USE OF PUBCENTER PROGRAMS. When accessing and using the pubCenter Programs, You agree to comply with the terms of this Agreement 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. For the purposes of this Agreement, Websites, Mobile Apps, Xbox Apps, and Win Apps are referred to collectively as “Properties.”
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 generate, or authorize or encourage others to generate, impressions or clicks on advertising 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.);
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 or otherwise inhibit or modify the display of any web page accessed by the links included with specific advertising; or
i) take any action that imposes an unreasonably or disproportionately large burden on Microsoft infrastructure, including the pubCenter Site or a pubCenter Program.
6. PUBCENTER PROGRAM FOR WEB DEVELOPERS. When You display, in or on Your Websites, advertising provided by the pubCenter Program for Web Developers, You must at all times comply with the then-current publisher content and implementation policy (“CIP”) currently available at the pubCenter Site. Microsoft may update the CIP at any time upon notice to You. In addition, if You elect to include advertising on or in Your Websites 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 pubCenter Program for Web Developers:
a) Paid Search Ads may not be displayed unless algorithmic results provided by Microsoft are also returned;
b) 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;
c) Paid Search Ads must be attributed to Microsoft in a manner that is clear to the user; and
d) Paid Search Ads may not be displayed simultaneously with any other search advertisements provided by a third party.
7. PUBCENTER PROGRAMS FOR WIN, MOBILE, AND XBOX APP DEVELOPERS..
7.1 All Win Apps and Mobile Apps. The following additional terms and conditions apply to Your display, in or on Your Apps, of advertising provided by the pubCenter Program for Win App Developers or the pubCenter Program for Mobile App Developers, as applicable:
a) Your Mobile Apps may not display more than one advertisement (including both advertisements from the pubCenter Program for Mobile App Developers as well as other advertisements) at any time.
b) Your Mobile Apps and Win Apps may not automatically refresh (including switching between advertising displayed by multiple ad controllers) more frequently than once every 30 seconds for unmetered connections (e.g., WI-FI or LAN connections). For Win Apps, automatic refreshing may occur no more frequently than 1 minute for metered connections (e.g., 3G, LTE connections).
d) Your Mobile Apps must comply with the then-current Application Certification Requirements for Windows Phone (“Mobile App Requirements”) that are available at http://msdn.microsoft.com/en-us/library/windowsphone/develop/hh184843(v=vs.105).aspx including any successor or replacement site. The Mobile App Requirements include, among other things, the application and content policies for Windows Phone applications.
e) Your Win Apps must comply with the then-current Application Certification Requirements for Win Apps (“Win App Requirements”) that are available at http://msdn.microsoft.com/en-us/library/windows/apps/hh694083.aspx including any successor or replacement site. The Win App Requirements include, among other things, the application and content policies for Win Apps.
f) Your Mobile Apps and Win Apps must at all times comply with the then-current Mobile Apps and/or Win App policies specified in the CIP.
7.2 Win Apps Only. Section 7.2 applies only to Your Win Apps (and You in relation to those Win Apps), including Your display, in or on Your Win Apps, of advertising provided by the pubCenter Program for Win App Developers:
a) Additional Requirements. In addition to other requirements of this Agreement, You must comply, and ensure that Your Win Apps comply, with the following: (i) the App Developer Agreement, available at http://msdn.microsoft.com/en-us/library/windows/apps/hh694058.aspx, including any successor or replacement site and (ii) the Microsoft Ad SDK license terms, which are available upon download of the Microsoft Ad SDK. “Microsoft Ad SDK” means Microsoft’s advertising software development kit that Microsoft makes available to Win App publishers, which may be downloaded at http://adsinapps.microsoft.com/sdk, including any successor or replacement site.
b) Publisher Representative. If You represent or manage other publishers, then You agree to provide the terms of this Agreement to each of Your clients whose Win Apps You wish to be submitted under this Agreement. Only Win Apps from Microsoft-approved Publisher clients (each, a “Publisher Client”) may be included under this Agreement as Win Apps. You will ensure that, prior to any Publisher Client submitting a Win App to Microsoft for inclusion under this Agreement, the submitting Publisher Client and the Publisher Client’s Win Apps comply with the terms of this Agreement. Publisher may request to add a Publisher Client by sending a request via email to Your Microsoft representative. The request must include the name of the client, along with any other information that Microsoft requests. If Microsoft agrees to add the client as a Publisher Client, Microsoft will provide its acceptance to Publisher via email.
c) Advertisers’ Right to Opt In or Opt Out. Microsoft may provide advertisers with a list of Win Apps and publisher names for the purposes of allowing advertisers to identify certain publishers and Win Apps 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 Win Apps.
d) 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 Win Apps.
e) Implementation Responsibilities. You will:
i) implement the Microsoft Ad SDK into Your Win Apps no later than 3 days prior to enabling ad delivery in Win App in accordance with Microsoft designated technical requirements that Microsoft provides to You;
ii) test on Your Win Apps 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 Win App;
iv) incorporate into Your Win Apps 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 Ad SDK to improve performance; and
vi) implement updates that Microsoft makes to the Microsoft Ad SDK within 60 days after Microsoft makes the Microsoft Ad SDK update available to You.
f) Prohibited Actions. You will not, and will not authorize or encourage any third party to, do the following (collectively, “Prohibited Actions”): (i) use in connection with ad inventory within Your Win Apps into advertisements may be served (the “Ad Inventory”) any URL re-directs, framing techniques, interstitial ads, pop-up windows, new consoles or other items or techniques that would alter the appearance, presentation or functionality of any ad or the advertiser’s web site to which the ad directs users; (ii) include any Ad Inventory or display any ads on any portion of Your Win Apps that includes materials or links to materials that are unlawful (including the sale of counterfeit goods or copyright piracy), obscene, pornographic, gambling related or religious, that constitute hate speech or defamation, or otherwise contain materials that do not comply with the Win App Requirements; (iii) include any Ad Inventory or display any ads in Your Win App generated by adware, spyware or P2P applications; (iv) store, distribute, copy or otherwise use or repurpose data that You receive from Microsoft, including any user identifier provided by Microsoft, for any purpose other than to display ads in accordance with this Agreement; (v) include any Ad Inventory or display any ads in any part of a Win App 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 (vi) allow any Ad tags (within ads served by Microsoft) or the Microsoft ad SDK to (A) be used by a third party, (B) be placed anywhere other than Your Win Apps, or (C) display ads anywhere other than on Ad Inventory. You will comply with all other Ad Inventory quality requirements (if any) that Microsoft makes available to You.
g) Adjustments for Prohibited Actions. If a Prohibited Action occurs, or if You or Your Win App violates Section 5 above, then without limiting any other rights and remedies Microsoft may have under this Agreement, Microsoft may do or require any or all of the following as Microsoft deems appropriate under the circumstances in order to manage advertiser satisfaction issues: receive additional impressions within Your Win Apps at no charge, 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.
h) Security and Protection. If You become aware of security issues that may affect the pubCenter Program for Win App Developers, You will promptly notify Microsoft at email@example.com, or other email address specified by Microsoft. If Microsoft discovers a security breach that is affecting the pubCenter Program for Win App Developers, Microsoft may take actions (including stop delivering advertising in response to advertising requests) that Microsoft deems necessary to address or minimize the impact of security issue.
i) Approved Apps Changes. You will provide to Microsoft at least 60 days’ advance written notice of all changes to the Ad Inventory or Your Win Apps that will materially affect the quality or quantity of the Ad Inventory, or cause all or some of the Ad Inventory to violate this Agreement. Without limiting any other rights and remedies Microsoft may have under this Agreement, Microsoft reserves the right to receive additional impressions within Your Win Apps at no charge in order to manage advertiser satisfaction issues or receive “make goods” for under-delivering advertising campaigns sold by Microsoft within Win Apps, where the under-delivery was caused by Your material changes to Your Win Apps or Ad Inventory.
j) Windows Store Dashboard Information. Microsoft may make available to You certain reports or other information related to Your Win Apps through the Windows Store Dashboard (collectively, the “Dashboard Information”). Upon Microsoft’s request, You will provide screenshots or other representations of the Dashboard Information to Microsoft, and You agree that Microsoft may copy, distribute and otherwise use these screenshots and representations solely to provide and promote the pubCenter Program for Win App Developers, and promote Microsoft’s relationship with You to potential advertisers.
k) Data Collection and Use. In response to Microsoft’s request, You will provide to Microsoft information relating to the pubCenter Program for Win App Developers as related to Your Win App, including user IP addresses, referring URL (HTTP Referrer), user agent, and time of submission. You will not collect or use any unique user identifier that Microsoft provides to You for any purpose other than passing that identifier to Microsoft as part of Your use of the pubCenter Program for Win App Developers.
l) Confidentiality. If You and Microsoft Corporation have entered into a standard Microsoft Corporation Non-Disclosure Agreement (“NDA”), then the terms of the NDA are incorporated into this Agreement by this reference (except that for purposes of this Agreement, any durational limitation on the protection of confidential information in the NDA is extended to five years from the end of Your participation in the pubCenter Program for Win App Developers), regardless of any earlier or subsequent termination or expiration of the NDA. If the parties have not executed an NDA, then the following terms apply. 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.
m) Trademark License. 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 connection with the pubCenter Program for Win App Developers in writing (including via email) (the “Publisher Marks”) for the purposes of providing and promoting the pubCenter Program for Win App Developers. 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.
n) Conflicts. The terms of Section 7.2 are in addition to and not a replacement for the other terms of this Agreement that apply to Win Apps; however, if any of the terms in Section 7.2 conflict with the other terms of this Agreement, then the terms of Section 7.2 will control.
7.3. Xbox Apps Only. Section 7.3 only applies to Your Xbox Apps (and You in relation to those Xbox Apps), including Your display, in or on Your Xbox Apps, of advertising provided by the pubCenter Program for Xbox App Developers.
a) Conflicts. To the extent anything in this Agreement directly conflicts with any of the terms in your signed Xbox Application Provider Agreement (“Xbox APA”) that applies to Your Xbox Apps, the terms of the Xbox APA will control.
8. ADVERTISING RESTRICTIONS. Your Win Apps must have an age rating of at least 12+ in the Win App Marketplace to receive advertising. If Your Mobile App is made available in the “kids + family” category of the Windows Phone App Marketplace, or Your Win App is made available in the “Books& References + Kids,” “Games + Kids” or “Games + Family” categories of the Win App Marketplace, then You must not select any of the following advertising categories or sub-categories for display in Your Mobile App or Win App:
· Food & Drink: “Cocktails/Beer, Wine” sub-category only
· Hobbies& Interests: “Cigars” sub-category only
· Law, Govt & Politics: All sub-categories
· Health& Fitness: All sub-categories
· Society: All sub-categories
· Religion: All sub-categories
· Style & Fashion: “Body Art” sub-category only
If You do not comply with the restrictions specified in Section 8, Microsoft will have the right to, at its sole and complete discretion and without advance notice to You, (i) stop serving advertising to Your Mobile App or Win App, (ii) remove Your Mobile App or Win App from the applicable app marketplace, (iii) not pay You, or deduct from future amounts due to You, any amounts that would otherwise be due to You from the display by Your Mobile App or Win App of any adds from these categories, and/or (iv) close Your pubCenter account.
9. 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.
10. 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.
11. 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 pubCenter payment policies (“Payment Policies”) currently available at the pubCenter Site. You must comply with the Payment Policies. Microsoft may update the Payment Policies at any time upon notice.
12. PAYMENT PROCESSING. You may only receive payments if You reside in one of our supported pubCenter countries that are qualified to receive payments. Supported pubCenter countries are further described in the Payment Policies. MICROSOFT TAKES NO RESPONSIBILITY FOR AND DISCLAIMS ANY OBLIGATIONS TO MAKE PAYMENTS TO PUBLISHERS WHO ARE OPERATING OUTSIDE OF OUR SUPPORTED COUNTRIES. Microsoft is not responsible for delay, loss or misapplication of funds due to incorrect or incomplete information supplied by You, a bank or any other financial institution or payment platform to which Microsoft sends your payments at your request (each, a “Payment Platform”) or for failure of a bank or Payment Platform 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 bank or Payment Platform and on any applicable tax withholding requirements by U.S. legislation and the domestic legislation of Your domicile. 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 of 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 Microsoft (or its third-party 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.
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.
13. TAXES ON PAYMENTS. Subject to applicable laws, amounts paid to You by Microsoft are inclusive of any applicable taxes. You will be responsible for all taxes (including, without limitation, net income or gross receipts taxes and any sales, use, value added, goods and services taxes) that arise as a result of, or are related to, the amounts provided to You by Microsoft under this Agreement. In addition, You agree to indemnify, defend and hold Microsoft harmless from any and all taxes or claims, causes of action, costs (including reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related to taxes payable by You. 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. Microsoft will use reasonable efforts to minimize withheld taxes to the extent permissible under applicable law.
14. IMPRESSION, CLICK, OR ACTION TRACKING. 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 or clicks 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 CIP or the Mobile App and/or Win App Requirements, are not valid impressions or clicks. MICROSOFT MAKES NO PROMISES OR GUARANTEES AND GIVES NO UNDERTAKE 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.
15. DATA. Microsoft will collect data about Your use of a pubCenter Program 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 pubCenter Program and other Microsoft advertising products and services and optimize their performance and (b) provide campaign reporting to advertisers whose advertising was displayed on Your Properties. 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 Section 15 to Microsoft without any charge.
18. SUPPORT AND FEEDBACK. Microsoft is not obligated to provide any technical or other support to You for the pubCenter Programs. If You give additional 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 Section 18 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 firstname.lastname@example.org.
19. 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.
20. 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.
21. 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 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 are at least 18 years of age; (and, if You reside in a jurisdiction where the “age of majority” is greater than 18 years of age, You are at least the age of majority);
e) 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;
f) Your Properties, including all activities carried on or through Your Properties, comply with all applicable laws and regulations;
g) Your Properties (including the content available on or through Your Properties) do not infringe, misappropriate or otherwise violate any third-party intellectual property right;
h) Your Properties do not violate the rights of any person or entity, including, without limitation, rights of publicity or privacy, and are not defamatory;
i) Your transfer and disclosures of data to Microsoft are compliant with all applicable data protection laws; and
j) The information You provide to Microsoft under or in connection with this Agreement is true, accurate, current, and complete and not misleading.
22. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES. 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.
(a) Notice of Dispute. In the event of a dispute, You or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. A form is available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245499). Microsoft will send any Notice of Dispute to You by U.S. Mail to Your address if we have it, or otherwise to Your email address. You and Microsoft will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, You or Microsoft may commence arbitration.
(b) Small Claims Court. You may also litigate any dispute in small claims court in the county of Your principal place of business or King County, Washington, USA. if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not You negotiated informally first.
(c) Binding Arbitration. If You and Microsoft do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”). You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
(d) Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor Microsoft will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
(e) Arbitration Procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. If the value of the dispute is $75,000 or less, its Supplementary Procedures for Consumer-Related Disputes will also apply even though You are a business and not a consumer. For more information, see www.adr.org or call 1-800-778-7879. To commence arbitration, submit the form available on the Legal and Corporate Affairs (LCA) website (http://go.microsoft.com/fwlink/?LinkId=245497) to the AAA. You agree to commence arbitration only in the county of Your principal place of business or in King County, Washington, USA. Microsoft agrees to commence arbitration only in the county of Your principal place of business. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to You individually as a court could. The arbitrator may award declaratory or injunctive relief only to You individually, and only to the extent required to satisfy Your individual claim.
(f) Arbitration Fees and Incentives.
(f)(1) Disputes Involving $75,000 or Less. Microsoft will promptly reimburse Your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If You reject Microsoft’s last written settlement offer made before the arbitrator was appointed (“Microsoft’s last written offer”), Your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards You more than Microsoft’s last written offer, Microsoft will give You three incentives: (i) pay the greater of the award or $1,000; (ii) pay twice Your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless You and Microsoft agree on them.
(f)(2) Disputes Involving More Than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
(f)(3) Disputes Involving Any Amount. In any arbitration You commence, Microsoft will seek its AAA or arbitrator’s fees and expenses, or Your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Microsoft commences, Microsoft will pay all filing, AAA, and arbitrator’s fees and expenses. Microsoft won't seek its attorney’s fees or expenses from You in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.
(g) Conflict with AAA Rules. This Agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.
(h) Claims or Disputes Must Be Filed Within One Year. To the extent permitted by law, any claim or dispute to which Section 22 applies must be filed within one year in small claims court (Section 22(b)) or in arbitration (Section 22(c)). The one-year period begins when the claim or Notice of Dispute first could be filed. If such a claim or dispute isn't filed within one year, it's permanently barred.
(i) Rejecting Future Arbitration Changes. You may reject any change Microsoft makes to Section 22 (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in Section 22(a). If You do, the most recent version of Section 22 before the change You rejected will apply.
(j) Severability. If the class action waiver in Section 22(d) is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 22 won't apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section 22 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 22 remaining in full force and effect.
(k) Third-Party Beneficiaries. Affiliates of Microsoft Online, Inc. are not party to this Agreement but are third-party beneficiaries of Your and Microsoft Online, Inc.’s agreement to resolve disputes through informal negotiation and arbitration. If Your dispute is with an Affiliate of Microsoft Online, Inc., such Affiliate agrees to do everything Microsoft Online, Inc. agrees to do in Section 22, and You agree to do everything regarding the Affiliate that Section 22 requires You to do regarding Microsoft Online, Inc. Mail a Notice of Dispute with an Affiliate to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. For purposes of this paragraph, “Affiliate” means any legal entity that a party owns, that owns a party, or that is under its common ownership. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.
23. DISCLAIMER OF WARRANTY. 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 IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE OF PRODUCT LIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, AND NON-INFRINGEMENT, RELATING TO THE PUBCENTER SITE AND PUBCENTER PROGRAMS. WITHOUT LIMITING ANY OF THE FOREGOING, MICROSOFT EXPRESSLY DISCLAIMS ANY WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF THE PUBCENTER SITE AND PUBCENTER PROGRAMS WILL BE UNINTERRUPTED 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 22. 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 email@example.com.
24. 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 25 (INDEMNIFCATION). NOTHING IN SECTION 24 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.
(a) By You. You will defend, 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) 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, or code related to the pubCenter Programs that are provided to You, (iv) Your breach of the CIP, Mobile App or Win App Requirements, 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 third-party claims, actions, losses, damages, liability, costs and expenses 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 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.
26. 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 Section 26. 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 Section 26.
27. 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 firstname.lastname@example.org. 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.
28. 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 providing prior written notice to Microsoft of such assignment. 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.
29. VENUE, CHOICE OF LAW. If Your principal place of business is in the United States or Canada, the laws of the state or province where Your principal place of business is located govern the interpretation of this Agreement, claims for breach of it, and all other claims (including consumer protection, unfair competition, and tort claims), regardless of conflict of law principles, except that the FAA 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).
30. 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 on any other Microsoft product or service to any third party.
31. 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.
32. 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