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 pubhelp@microsoft.com.
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).
c)
If Your Mobile Apps or Win Apps pass locational
data and/or other user-related information (e.g., user identifier, profile
data, behaviorally tracked user information) to the Microsoft Advertising SDK
for Windows Phone or Win App, then
Your Mobile App or Win App must (1) notify end users that it will be collecting
and using locational data and/or user-related information and providing this
information to Microsoft for Microsoft’s advertising use (2) explicitly obtain
affirmative user consent (e.g., the user clicks an “Accept” or continue
“Install” button) for this upon download of the Mobile App or Win App and (3)
provide in Your privacy policy and/or terms of use a link that provides users
with the ability to opt out of Microsoft interest based advertising at the following
location https://choice.live.com/AdvertisementChoice/.
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 pubhelp@microsoft.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.
16. PRIVACY. Nothing in this
Agreement provides for the collection or transfer between You
and Microsoft of any personally identifying information of an internet
user without the express consent of the end user. You must maintain and comply
with a posted privacy policy on Your website 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.
17. CONSUMER
NOTICES. You will
maintain an online privacy policy, along with consumer privacy notices that
refer to Your online privacy policy, that are all
prominently visible on Your business website and all of Your Websites. In
addition, Your Mobile Apps and Win Apps must have either a clear and prominent
privacy notice within the Mobile and Win Apps or a link to Your
online privacy policy and notices as applicable. 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/
for Your Mobile Apps and Win Apps, or for Websites 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/ if located in 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 Your country provides for additional
legal requirements to Your Properties,
You agree to immediately adjust Your Properties so that they become in
compliance 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
country where Your Properties are developed and intended to be made available.
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 pubhelp@microsoft.com.
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 pubhelp@microsoft.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.
25. INDEMNIFICATION.
(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 pubhelp@microsoft.com. Microsoft may disclose Your contact information as necessary for Microsoft to
administer this Agreement through its affiliates and other third parties that
help Microsoft administer this Agreement.
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