YAHOO! ADVERTISING – TERMS AND CONDITIONS
1.1 All supplies and services that we provide in connection with your advertising on the Yahoo! network are subject exclusively to: (i) the following terms and conditions (the “General Terms and Conditions”), (ii) the special provisions for the specific programme to which you subscribe for your advertising (the “Programme”), (the “Special Provisions”), and (iii) the terms and conditions of the specific order, that we have agreed upon for the special advertising measures (the “Order”). The General Terms and Conditions, applicable Special Provisions and the Order together form the “Agreement”. Each Order for each campaign constitutes a legally self-contained Agreement with its own agreement term.
1.2 The terms defined in the Order and the applicable Special Provisions are also applicable to these General Terms and Conditions unless other definitions of terms are explicitly agreed upon hereinafter. The specially defined terms are used in the singular or plural form, as the context may require. Headings used in the Agreement are for orientation and do not constitute a component of this Agreement.
1.3 The term of the Agreement shall commence with conclusion of the Agreement and shall end through termination or expiry of the term in accordance with the terms and conditions of this Agreement (the “Term of the Agreement”).
1.4 In the Agreement, the following definitions have the following meaning: (i) "Yahoo!" or "We" means Yahoo! Deutschland GmbH, Theresienhöhe 12, 80339 Munich, (ii) "Yahoo! Company (Companies)” means Yahoo! or any affiliate of Yahoo!, Affiliated company (iii) “Yahoo! Member(s)” means the Yahoo! companies, their officers, employees or vicarious agents as well as the Yahoo! network, (iv) “Yahoo! Website(s)” means the websites operated by the Yahoo! companies, (v) “Yahoo! Network” means the network of the Yahoo! websites and third party products through which we distribute advertiser materials, (vi) “Third Party Product(s)” means websites, properties, content, applications and/or e-mails of third parties that make advertiser materials available, (vii) “you” means the client of Yahoo!, (viii) “Affiliate(s)” means affiliated companies in terms of the Aktiengesetz [German Companies Act], (ix) “Authorised User(s)” means your employees and vicarious agents acting on your behalf with respect to execution of the Agreement, (x) “Advertiser Materials” means the advertisements we published on your behalf on the Yahoo! network as well as your website(s) and all other information, data, advertising material, content, URLs (including the referenced web pages) and trademarks you provide in connection with this Agreement, (xi) “Intellectual Property Rights” means copyrights, design rights, database rights, patents, trademarks or other intellectual property or proprietary rights (whether they can be registered or not) or other equivalent forms of protection globally, (xii) “Technical Specifications” is a collective term for the information regarding execution of the Agreement, to which we grant you access on the basis of the registration or Order process prior to conclusion of the Agreement by way of content, documents or references to websites with relevant information.
2. PAYMENT CONDITIONS, PROVISIONS
2.1 Our charges shall be paid in the currency, manner and form required by us.
2.2 Insofar as reports, findings or stipulations are applicable within the framework of contractual obligations, the following shall be applicable:
2.2.1 Stipulations by Yahoo! are always in accordance with its best judgement.
2.2.2 The procedures and technologies used by Yahoo! with respect to factual findings have been verified and certified by independent third parties. Findings by the software or hardware used by Yahoo! are considered as correct and complete for accounting purposes with the proviso that proof of incorrectness shall be provided by you. Upon your request and at your expense such discrepancy shall be examined by an independent third party, sworn to secrecy. This party may only inform you of the results of the examination, but not of any other data and information accessible within the framework of the examination.
2.3 Invoices shall, at the discretion of Yahoo! and as required by applicable legislation, be forwarded electronically or by mail to the address stated on the Order and are payable immediately net (without deduction), unless otherwise agreed in the Order. You shall also, without warning, be in arrears with payment 30 days after due date and receipt of the invoice. The prices mentioned by Yahoo! exclude statutory sales tax (V.A.T.). This is accounted for separately on the invoice in the legally applicable amount on the day of invoicing and shall be borne by you.
2.4 Your set-off against our claims is only permissible if your underlying counterclaims are uncontested or legally established. This is also applicable to assertion of retention rights – also commercial – and in particular to the abatement of regular payments to Yahoo!, arising from alleged shortcomings of our services. In this case you are entitled to claim back pay, refunds under unjust enrichment law, or compensation for damages in this respect, as stipulated in the Agreement.
2.5 If we, on your request, address the invoice to a third party, this does not relieve you from liability for payment.
2.6 We are entitled to withhold services under an Agreement, or arising from claims against you under other legal circumstances.
2.7 § 649 BGB [German Civil Code] is excluded. Reports, bank statements, bookings or invoices are regarded as confirmed unless you raise an objection within two months after receipt. After expiry of this term, objections that may have been resolved in this period are excluded.
2.8 In case of default, we will charge default interest at the legally stipulated rate (currently 8 percentage points above prime rate). We reserve the right to claim for further damage arising from default.
2.9 We reserve the right to update our published charges at any time. Updates shall be announced in an appropriate way. Such changes do not affect agreements already concluded.
3. ACCESS RIGHTS
3.1 You are not entitled, without our written consent, to(i) use automated means to access your customer account or the Yahoo! Websites, (ii) bypass facilities on the Yahoo! Websites that prevent automatic access, (iii) interfere with the flow of the Yahoo! Websites or Programmes (iv) use the Programmes in connection with open source software in any way which would justify obligations of use or third party rights with respect to our intellectual property rights or Programmes and (v) use our Programmes in connection with any activity which may, directly or indirectly, cause material damage, death or personal injury or be injurious to health. You shall take suitable measures to prevent aforementioned actions by third parties.
3.2 Your right to access your account is non-assignable and subject to the conditions published by Yahoo! from time to time. You shall not allow any third party to make use of our Programmes, except your Authorised Users as stipulated in the Agreement.
3.3 You are obliged to notify us immediately in writing should you become aware of an actual or potential breach of security relating to your account. You shall ensure that Authorised Users comply with the provisions of the Agreement. Regardless of negligence or fault, you are liable for all acts or omissions of your Authorised Users as for own acts or omissions.
3.4 Data or information made available to you in connection with a Programme is intended solely for internal use and management of your account, in accordance with the Agreement. In particular, you may not publish such data nor create profiles of our users.
4. YOUR WEBSITE AND THIRD PARTY WEBSITES
We accept no responsibility for your website or websites of third parties.
5. API ACCESS
If we grant you API access in connection with a Programme, the following provisions shall apply to your use of API access and the API code (as defined below) associated with such programme:
5.1 “API Access” is the ability, via the API code, to access certain information or features in your account and to execute commands for your account. You may only use your API Access, including any associated available data, exclusively for the duration of your participation in the Programme and exclusively to manage the specific account and for no other purposes. We may, within the framework of technical changes to the Yahoo! Websites, also limit, modify or terminate your API Access, notwithstanding that such modifications may require you to change, at own expense, the API code for continued API Access. “API Code” is software developed by you or us using an XML/SOAP interface specified by us, enabling API Access.
5.2 You are granted a non-exclusive, revocable, non-transferable, non-sub-licensable, limited usage right to the API Code or software for inclusion into API Code, for use exclusively for internal purposes in accordance with the Agreement, provided by us to enable API Access during the term of the applicable Programme. You shall make the API Code available to us for inspection upon our request and notify us of the features and functionalities of such API Code and the applications which the API Code accesses. Use of the API Code shall not exceed access frequency limits stipulated by us. If you act as an agency (as defined below), API Access is granted exclusively to you, not to your client advertisers. Should you already have concluded another agreement with a Yahoo! Company, granting you API Access, use of your API Access is subject exclusively to the provisions of such other agreement. You are not granted additional API Access in accordance with the provisions of this section.
6. USE OF INFORMATION
6.1 For the duration of the term, you shall grant each Yahoo! Member the revocable, non-exclusive, royalty-free, worldwide right to: (i) use, copy and/or modify, adapt, re-compile, disassemble, reverse engineer and/or manipulate, fully or in part, the Advertiser Materials provided by you, on the entire Yahoo! Network for purposes of display and marketing and distribution of your Advertiser Materials in accordance with the Agreement, and (ii) for the aforementioned purposes, to access and, by technical means, including web spiders and/or crawlers, index, cache and/or map the websites to which your Advertiser Materials link.
To clarify: The above section entitles Yahoo! to such modifications as required for the display of the Advertiser Materials in the agreed form. Unless specifically agreed otherwise in the Order or the Special Provisions (e.g. truncated presentations), Yahoo! is not entitled to significantly deviate from the presentation form agreed upon.
6.2 Should you use a proposal for modification or improvement related to your Advertiser Materials, made by a Yahoo! member outside of our contractual obligations, any arising or related liability of Yahoo! Members is excluded.
6.3 All Advertiser Materials shall comply with our Technical Specifications and require our approval. Refer to the Technical Specifications for details. If Advertising Materials are in contradiction with the Agreement, we are entitled but not obliged to delete or disable these at any time and/or to terminate the Order pursuant to Section 12. We specifically do not accept a legal obligation to check the Advertising Materials and any review and/or approval on our part does not constitute acceptance or approval of such Advertiser Materials.
6.4 We do not guarantee that your Advertiser Materials (i) will appear in all sections of the Yahoo! Network or (ii) in a particular position or rank, unless specifically agreed to in the Order. Inclusion and placement of the Advertiser Materials is subject to our best judgement, compliant with the Technical Specifications.
6.5 All rights to (i) any software or hardware, (ii) the Programmes and (iii) any data, information and content of the Yahoo! Websites, Programmes or other websites of the Yahoo! Network are reserved and entitlement is exclusively to Yahoo! and its licensors worldwide.
7. CONFIDENTIALITY AND DATA PRIVACY
7.1 “Confidential Information”, in terms of the Agreement, comprises any information of whatever nature we disclose to you, directly or indirectly, in connection with the Agreement, other than clearly non-confidential information or information verifiably in your possession without confidentiality restrictions or in the public domain prior to disclosure by us. You shall desist to: (i) disclose Confidential Information to third parties (other than to your Authorised Users who shall be bound in writing by confidentiality clauses which are no less severe than the provisions of this Section and who require such Confidential Information in connection with the Agreement) or (ii) access or use such Confidential Information unless imperative for the purpose for which such information is disclosed to you.
7.2 You may disclose Confidential Information if required by law, provided that (i) you notify us promptly prior to such disclosure and (ii) at our request, assist us in preventing or restricting such disclosure and (iii) limit any disclosure to the extent necessary for compliance with legal requirements.
7.3 All embodiments of confidential information shall be released to us at any time upon request and also without request, promptly upon termination of the Agreement.
7.4 Within the framework of using the Yahoo! Websites and Programmes it may happen that you or the Authorised Users provide Yahoo! with personal data. We shall use such data for purposes of operating the Yahoo! Websites and Programmes and to administer your account and may, if required for this purpose, disclose such data to third parties. Details on the use personal data are provided in our
Privacy Policy.
Usage of your personal data is subject to current applicable legal provisions, in particular the Bundesdatenschutzgesetz [German Federal Data Protection Act] and the Telemediengesetz [German Telemedia Act]. Should we use data for a purpose requiring your consent in accordance with these provisions, we shall in each case request your explicit consent. You may revoke such consent at any time, with future effect, and/or object to future use of your data. Registration, use of our services or recognition of these General Terms and Conditions does not obviate your explicit declaration of consent.
7.5 You undertake not to issue press releases or other publications relating to the Agreement or individual provisions thereof without our prior written consent.
8. YOUR DUTIES
You represent that:
8.1 You undertake, throughout the full term of the Agreement, to ensure and accept liability: (i) that, by entering into the Agreement, you are acting in a commercial or independent business capacity and not as a consumer, (ii) that all Advertiser Materials and use of the Yahoo! Websites and Programmes will be free of viruses or other computer programmes that may be harmful or abusive, including such that change user settings or generate series of pop-up windows or the like, (iii) that you will not engage in spamming, phishing or any manipulative data processing with respect to a Yahoo! Website, (iv) that any personal data you collect on the Yahoo! Network will be collected and used (this means processing and using) strictly in accordance with the applicable data protection laws and that such personal data will, in particular, not be combined or compared with data collected by other means, via cookies or click streams, and (v) that the Advertiser Materials as well as all your acts and omissions in connection with the Order:
8.1.1 do not violate any applicable legal or regulatory provisions (collectively “Laws”),
8.1.2 do not violate intellectual property rights or other third party rights,
8.1.3 do not contain misleading, defamatory or otherwise offensive or threatening content and
8.1.4 do not potentially tarnish the reputation of a Yahoo! Company.
8.2 You shall refrain, without our prior written consent, from (i) modifying, adapting, making available to third parties, reverse engineering, disassembling, de-compiling, copying or creating derived products, using Yahoo! Websites, Programmes or Confidential Information or (ii) altering or removing notices pertaining to identification, trademarks, copyrights or other references in the Programmes.
8.3 You shall take suitable measures to ensure that acts prohibited to you in accordance with aforementioned provisions, shall also not be performed by third parties.
9. YOUR DUTY TO INDEMNIFY
9.1 You shall fully indemnify all Yahoo! Members, regardless of negligence or fault, from all claims by third parties and claims under public law, in each case including the legal fees (collectively “Claims”), arising from or in connection with the Agreement and its execution, with the exception of (i) our duty to pay taxes on our income and (ii) claims arising from breach of Agreement by Yahoo! for which Yahoo! is liable in accordance with this Agreement. You agree to accept responsibility for defending any Claims against any Yahoo! Member at your own expense, if such Claim arises from a circumstance for which you would be responsible according to the previous sentence. The right of Yahoo! Members to assume own responsibility for legal defence remains unaffected. Any settlement of Claims against a Yahoo! Member requires the consent of such Yahoo! Member.
10. SCOPE OF SERVICES AND LIMITATION OF WARRANTY
10.1 The scope of Yahoo! services is based on the Technical Specifications. We explicitly do not guarantee uninterrupted access to the Advertiser Materials or usage of the Yahoo! Network. Any warranty, liability or responsibility of Yahoo! for (a) technical limitations insignificantly restricting usage and/or (b) failures or limitations that (i) are based on your supplies or failure of public communication networks or computers controlling Internet data flow, or are not (ii) cumulatively excessive – regardless of failures or limitations mentioned in lit. (a) and (b)(i), is excluded. This regulation does not constitute a quality warranty.
10.2 The following shall be applicable in the case of potential defects of quality or defects of title:
10.2.1 We in principle reserve a right to two attempts at supplementary performance unless this is unacceptable in a given case. We reserve the right to choose the type of supplementary performance. Unless we exercise our right of choice within a reasonable period stipulated by you, it is subrogated to you.
10.2.2 Rights with respect to defects of quality or defects of title are excluded if the deviation from quality specifications is only insignificant and/or the suitability of the delivery or service is only insignificantly limited in the agreed application.
10.2.3 You shall examine services within the framework of the Agreement without delay and give notice of defects or deviations. Unless you give notice of defects without delay regarding deviations evident after proper examination, such deviations shall be deemed approved as supplied. Notice of defects is regarded as “without delay” provided we receive same within 14 days.
10.2.4 We are in any event entitled to rectify limitations or interruptions to the availability of Advertiser Materials by extending the agreed insertion time of the campaign accordingly. This is not applicable if you should have no further interest after expiry of the agreed insertion time but prior to the extended insertion time, such as in the case of event-related advertising, for instance.
10.2.5 Quality warranties always require our specific explanation.
11. LIABILITY, LIMITATION
11.1 Contractual or non-contractual liability for damages on the part of Yahoo! exists only if the damage is caused by gross negligence or intent. With respect to culpable injury to life, limb or health of a natural person, we are liable also in the case of ordinary negligence only. In addition, we are also liable in the case of ordinary breach of a significant contractual obligation, limited however to the amount of the loss of assets which Yahoo! should have been aware of, at the time of concluding the Agreement, as potentially arising from such breach.
“Fundamental Contractual Obligations” in the aforementioned sense are obligations prerequisite to proper execution of the Agreement and to achieve the intention of the Agreement and the observance of which you may routinely rely on considering the content and purpose of the Agreement.
With regard to damages associated with the loss of data we are only liable insofar as these may have been unavoidable by daily, alternating data backup. We are also not liable for damages arising from delivered items insofar as such damages may have been avoided by checking the output of same at regular intervals.
Liability by Yahoo! for external content is further limited in accordance with the Telemediengesetz [German Telemedia Act]. Insofar as we provide telecommunication services within the framework of the Agreement, the liability of Yahoo! for financial losses that were not caused intentionally over and above the liability limitation stated in the previous sections, is limited to EUR 12, 500.00 in an individual case. This maximum liability amount is proportionally reduced if the total amount of liability claims by all aggrieved parties arising from a damage event exceeds an amount of EUR 10,000,000.00.
11.2 Liability limitations of Yahoo! which are agreed to in the Agreement, are also applicable to potential personal liability of Yahoo! Members. Possible mandatory product liability claims pursuant to the Produkthaftungsgesetz [German Product Liability Act], as well as claims arising from possible quality warranties, remain unaffected by the aforementioned limitations.
11.3 Claims with respect to defects in deliveries or services within the framework of this Agreement lapse after one year. The statutory right of withdrawal also lapses with expiry of the agreed statute of limitation. The aforementioned statute of limitation is also applicable to compensation claims arising from a defect. For claims:
- arising from maliciously concealed defects or
- arising from intent, gross negligence or culpable injury to life, limb or health of a natural person,
- pertaining to quality guarantees as well as
regarding the right to withdraw from the Agreement following a violation of duty which is not a defect and for which Yahoo! is responsible, the statutory statute of limitation is always applicable. The statutory provisions are always applicable to the commencement of the limitation.
12. TERM AND TERMINATION
12.1 The term of the Agreement is stipulated in the Order or in the Special Provisions. You may terminate the Agreement only in accordance with the Agreement; § 649 BGB [German Civil Code] is excluded.
12.2 Subject to deviating arrangements in the Special Provisions or the Order, the Agreement may be terminated as follows:
12.2.1 We are entitled to duly terminate the Agreement at any time, subject to a notice period of one month to the end of a calendar month.
12.2.2 You are entitled to terminate the Agreement at any time.
12.2.3 The right of extraordinary termination remains unaffected.
12.2.4 We are, in particular, entitled to suspend performance of the Agreement or – as far as required by law and after prior warning – to extraordinary termination of the Agreement should you violate duties or obligations pursuant to Section 8 or 6.3.
12.3 Termination does not affect arising claims preceding such point in time. After termination, such provisions of the Agreement remain applicable which, in terms of their intention and spirit, should apply also after termination, in particular the provisions in Sections 1, 6, 7, 11, 12, 14 and 15 of these General Terms and Conditions.
12.4 Following termination of this Agreement you agree to immediately cease using the Yahoo! Websites, Programmes, Third Party Products as well as Confidential Information, especially user names or passwords, and to destroy all copies of Confidential Information and to promptly confirm same in writing, if requested to do so. With regard to legal obligations to retain data, the information shall be blocked for other uses instead of being destroyed.
13. NOTICES
13.1 All notices addressed to you in connection with this Agreement will be in writing (e-mail is also deemed as written form) and forwarded to the address specified by you in the Agreement. It is your responsibility to ensure that your contact and account information is current and correct and to notify us of any changes.
13.2 Notices to Yahoo! shall be sent to: Yahoo! Deutschland GmbH, Theresienhöhe 12, 80339 Munich or by fax/e-mail to your contact person.
14. CHOICE OF LAW AND JURISDICTION
The contractual relations between the Parties are governed by German law with the exception of the UN Sales Convention. All disputes arising under or in connection with the Agreement, the Order, the Special Provisions or the General Terms and Conditions, shall be exclusively under the jurisdiction of the courts of Munich, to the extent that you are a commercial entity, a corporate body under public law or a special fund under public law. The same shall apply if, at the time the claim is submitted, your domicile or usual residence is not in Germany or not known. In any event the general place of jurisdiction is also applicable.
15. OTHER
15.1 Changes
15.1 You acknowledge and agree that, with the exception of the limitations pursuant to Section 6: (i) the Yahoo! Members have complete editorial freedom in terms of the content, layout and technical aspects of the Yahoo! Websites and the Programmes and distribution of your Advertiser Materials and (ii) the specifications, availability and/or appearance of any Yahoo! Websites, Third Party Products or other technical means provided by a Yahoo! Member may be modified at any time at the discretion of the Yahoo! Members, provided compliance with the Agreement is not thereby affected.
15.2 The Agreement and components of the Agreement explicitly mentioned therein constitute all and the final agreements between the Parties in connection with the subject matter of the Agreement. There are no subsidiary agreements. Negotiations or statements by the Parties or their representatives or assistants pre-dating the conclusion of the Agreement are only components of the Agreement if explicitly agreed upon in the Agreement. Liability arising from to potential default in Agreement negotiations remains unaffected.
15.3 In the event of conflict between the General Terms and Conditions, the Special Provisions and/or the Order, these shall be applicable in the sequence below, whereby the document mentioned first has precedence over the documents mentioned thereafter: (1) the Order with the proviso that (i) it has precedence only if signed by representatives of both Parties and (ii) any deviation from the Special Provisions or General Terms and Conditions in such Order shall only apply to the subject matter of the specific Order and (2) the Special Provisions and (3) the General Terms and Conditions.
15.4 Insofar as Yahoo! does not enforce claims or rights under the Agreement or law in an individual case, this does not constitute a waiver of such rights or claims.
15.5 If a provision of the Agreement is or becomes invalid or unenforceable, the validity of the Agreement shall for the rest remain unaffected.
15.6 The Agreement grants neither Party the right to represent the other in legal matters. Irrespective of the fact that the Agreement refers to the Yahoo! Companies or Members, a contractual relationship exists exclusively between you and Yahoo!. Insofar as the Agreement includes obligations on your part with respect to Yahoo! Companies and Members, e.g. in Section 9, then directly enforceable contractual rights against you are granted to the individual Yahoo! Companies and Members themselves (agreement to the benefit of third parties).
15.7 You may only assign rights of the Agreement – with the exception of payment claims – after prior consent by Yahoo!. Consent may only be refused for good cause.
15.8 Yahoo! is entitled to appoint subcontractors for all services in accordance with the Agreement; liability by Yahoo! towards you remains unaffected. You acknowledge and accept, in particular, that services pursuant to this Agreement may be provided by the Yahoo! Companies.
16. AGENCIES
16.1 If you, as an advertising agency or other service provider, issue Orders in your name but for the account of advertiser clients (each a “Third Party”), this Section applies to you (“Agency”):
16.1.1 As an Agency you agree to ensure that all provisions of this Agreement are complied with by yourself as well as by the third party you represent. Regardless of negligence or fault, you are liable for all acts or omissions of the third party as for your own acts or omissions. With the exception of the Authorised Users, you as the Agency shall ensure that third parties do not access your account or contact us with regard to the execution of the Agreement.
16.1.2 As an Agency you may not, without our prior written consent: (i) make any promises with respect to the Programme, which are contrary to the Technical Specifications, towards the third party, (ii) in the course of commercial transactions purport to act on behalf of a Yahoo! Company or to be associated with a Yahoo! Company under corporate law or (iii) offer any telesales or telemarketing in connection with any Yahoo! Website or Programme.
16.1.3 You undertake not to use Confidential Information to which you had access in connection with the Agreement, during and following expiry of the Agreement term, particularly to solicit our advertisers.
16.1.4 During the Agreement term and for 12 months after termination thereof, you shall not, directly or indirectly, solicit active employees of Yahoo! or vicarious agents of Yahoo!, insofar as these employees were each involved in the conclusion of the Agreement, for the benefit of another independent or employed activity, whereby this excludes general job offers, vacancies and the like, not specifically directed at such employees.
Munich, January 2009
Yahoo! Deutschland GmbH
SPECIAL PROVISIONS – SPONSORED SEARCH
1. USE
1.1 These special provisions – Sponsored Search (the “Special Provisions”) -apply to the publication of Advertiser Materials within the framework of the Sponsored Search programme (called “Programme”) according to the technical specifications for this Programme (the “Technical Specifications”). You are granted access to the Programme subject to provisions in the Agreement only.
1.2 In the event of contradictions between these Special Provisions and the provisions of the relevant Order and/or the General Terms and Conditions, the Agreement provisions shall apply in the sequence stipulated in Section 15 of the General Terms and Conditions.
1.3 Terms defined in the General Terms and Conditions shall have the same meaning as these Special Provisions. In addition, within the framework of these Special Provisions, (a) “Account” means your user account with us to use the Programme and (b) “Customer Selection” collectively means (i) the keywords selected by you (including certain deviations in spelling, singular/plural and other search terms based on your selected search terms, that we may allocate to your Advertiser Materials), and (ii) your Advertiser Materials. For example, if you select the search term “book”, your Advertiser Materials may also appear in response to the search terms “books” or “buy books”. At the discretion of the individual Yahoo! Members, Advertiser Materials may include titles, description, text and/or graphics.
1.4 By enrolling in the Programme, you agree that your Advertiser Materials may be included in pages of the Yahoo! Network in accordance with the Technical Specifications.
2. SUBMISSION OF THE ADVERTISER MATERIALS
2.1 Unless specifically agreed otherwise, we may present your Advertiser Materials in accordance with the Technical Specifications in any products and services. If you wish to only include Advertiser Materials in particular products or services, withdraw Advertiser Materials or make changes to your bids or budgeting, you must do so using the account management procedure or other methods we provided you with.
2.2 Termination of your participation in this Programme or withdrawal of Advertiser Materials from parts of the Yahoo! Network is permitted subject to written notice in accordance with Section 12 and 13 of the General Terms and Conditions.
2.3 You may submit or change Advertiser Materials by visiting the relevant pages of the participating Yahoo! Websites. These are currently located at http://marketingsolutions.yahoo.com/en_DE. Refer to the Technical Specifications for details.
2.4 We assist you with submission of the Advertiser Materials against payment of a special fee up-front. Refer to the Technical Specifications for details. The Payment Provisions under the Agreement are applicable.
3. FEES AND BUDGET
3.1 FEES
To utilise the Programme, you are required to pay a non-refundable initial deposit into your account with us. The Payment Provisions of the Agreement are applicable. Refer to the Technical Specifications for details. Accruing fees are off-set against the initial deposit; credits are refunded at the end of the Agreement in accordance with Section 4.
Prior to launching of the campaign, we shall request you to pay the initial deposit for the campaign:
3.1.1 You may then specify that you do not wish us to overdraw your account, in which case presentation of your Advertiser Materials will be suspended when your account has insufficient funds.
3.1.2 If you do not specify anything pursuant to Section 2.1, we shall, if required, overdraw your account by a specific amount, provided your account has sufficient funds for up to three days (based on your historical account spend).
The required or maximum allowable amount of the initial deposit and overdraws is based on the Technical Specifications. Unless you specify a different overdraw amount or proceed in accordance with Section 3.1.1, the overdraw amount will be the same as the advance payment.
Your payments include, besides applicable administration fees and costs, a fee for all clicks on your Advertiser Materials. This fee is variable and limited only by a specified maximum bid and/or a budget pursuant to Section 3.2. All fees are additional to possible fees for other programmes. Monthly minimum turnovers may be applicable.
3.2 BUDGET
3.2.1 If you specify a monthly budget for a specific customer selection, we shall calculate this and suspend presentation of the relevant Advertiser Materials in the Yahoo! Network when and if necessary to remain within the budget. Section 3.2.3 is applicable.
3.2.2 The budget is calculated on the basis of any 30 consecutive days. This period starts anew with each input or change to your budget.
3.2.3 Upon written request, Yahoo! will reimburse you pro-rata with booked fees which exceed your stipulated monthly budget by more than 10%. Reimbursement of the aforementioned fees is your sole and exclusive legal remedy if your monthly budget is exceeded.
4. CLOSING OR BLOCKING ACCOUNTS
4.1 We reserve the right to close accounts that have been dormant for more than two years. A possible credit balance will be reimbursed less a reasonable administration fee in accordance with the Technical Specifications.
4.2 We reserve the right to block or suspend your access to the Yahoo! Websites or the Yahoo! Network unless and until you have paid amounts owing. During these periods your Advertiser Materials will not be published.
5. MINIMUM AND MAXIMUM BIDS, BIDDING PROCEDURE
5.1 The current minimum bids are applicable regarding the variable fee per click. You may stipulate a maximum bid for the variable fee per click.
5.2 If the bids by other advertisers exceed your bid for the same search term, Yahoo! is entitled, at its own discretion and in consideration of factors such as the relevancy of your Advertiser Materials, to automatically increase your bid to an amount exceeding the bid for the position you required at the time by € 0.01, but without exceeding your maximum bid.
6. Positioning your Advertiser Materials
Yahoo! will compare your bid for the search terms relating to your Advertiser Materials against all other advertisers bidding on the same search terms. Yahoo! shall, taking into account certain criteria such as relevancy of your Advertiser Materials and your bid amount, determine the position in which your Advertiser Materials will appear. The position of your Advertiser Materials and how your Advertiser Materials are placed is to Yahoo!’s best judgement, unless the Agreement contains binding specifications. Refer to the Technical Specifications for details.
6.2 Yahoo! is entitled to provide search terms to more than one bidder. You acknowledge and agree that (i) other advertisers may bid for the same search terms and (ii) your Advertiser Materials may not be displayed if fewer display positions are available than there are advertisers’ bids for the specific word or phrase.
6.3 In individual forms of display in the Yahoo! Network it may occur, for technical reasons and/or to adapt to the look & feel of the Yahoo! Network that Advertiser Materials are presented in modified or shortened (truncated) form. Refer to the Technical Specifications for details.
7. ANALYSES
If required within the framework of the Programme, we may provide you with our own software programmes and tools (collectively, “Yahoo! Code”) for insertion into your websites - to enable the application of certain analytical tools of your account (“Analysis”). If you install the Yahoo! Code, it may be required for technical reasons that software code is downloaded to the Internet browser of users of your websites in the course of their interaction with your sites. Subject to the terms of the Agreement, we grant you a non-exclusive, always revocable, non-transferable, non sub-licensable, limited-use right of use of the Yahoo! Code on your websites during the term of the internal purposes as stated in Section 7, within the framework of the Programme. Refer to the Technical Specifications for details.
You agree that during the Analysis we may append certain parameters to the URL associated with your Advertiser Materials to enable such Analysis. It is incumbent upon you not to change or delete such parameters. This would affect the Analysis and render inaccurate results.
8. YAHOO! CODE
Relating to the implementation of the Analysis and/or the use of the Yahoo! Code on your websites, you agree (a) to obtain all rights and permissions that may be required in accordance with the relevant laws to enable the Yahoo! Companies to use the analysis results and the associated monitoring technologies (cookies, web beacons etc.) in accordance with the Agreement and (b) to maintain and adhere to a privacy policy in compliance with the relevant laws, accessible via a clear and conspicuous link from the main page of your website and any other pages where visitors may provide personal identifiable information, and which points out to visitors (i) the implementation of the Analysis and (ii) options to disable the monitoring technologies used.
9. PROVISIONS REMAINING IN EFFECT
Section 12.3 of the General Terms and Conditions is applicable.
10. OTHER PROVISIONS
It is incumbent upon you to ensure that the Advertiser Materials, including their presentation, are acceptable to you and your advertisers. This includes the assurance that URLs and hyperlinks submitted by you are functional and that the Advertiser Materials comply with all the provisions of the General Terms and Conditions. This is also applicable should we have participated in the creation or submission of the Advertiser Materials.
Munich, January 2009
Yahoo! Deutschland GmbH
SPECIAL PROVISIONS – DISPLAY ADVERTISING
1. USE
1.1 These Special Provisions Display Advertising (the “Special Provisions”) apply to the publication of Advertiser Materials within the framework of the Display Advertising programme (“Programme”), subject to the technical specifications for this Programme (the “Technical Specifications”).
1.2 In the event of any contradictions in these Special Provisions, the Order and/or the General Terms and Conditions, the Agreement provisions shall apply in the sequence stipulated in Section 15.3 of the General Terms and Conditions.
1.3 Terms defined in the General Terms and Conditions shall have the same meaning as in these Special Provisions.
2. PRESENTATION OF THE ADVERTISER MATERIALS
Unless explicitly agreed otherwise in the Order, positioning of the Advertiser Materials within the Yahoo! Network shall be at our best judgement and we reserve the right, in particular, to display advertising for any goods or services competing with your own in any part of the Yahoo! Network.
3. USAGE STATISTICS
3.1 Your Advertiser Material usage statistics are available in our Ad Centre at http://advertiser.yahoo.com. User name and password access will be provided to you 48 hours after the start of the insertion period.
3.2 For the rest, Section 2.2 of the General Terms and Conditions is applicable in respect of usage statistics.
4. PROVISION OF ADVERTISING MATERIAL
4.1 You must provide all materials and insertion documentation (“Advertising Material”) required to set up the advert and process the Order in good time. You must comply with the Technical Specifications, available at http://de.media.yahoo.com/werben_mit_yahoo/werbeformen.html, the provisions of the General Terms and Conditions and the deadline for Advertising Material submission. We are not obliged to execute Agreements in which the Advertising Material does not meet the aforementioned requirements.
4.2 Unless specifically agreed otherwise in the Agreement, the following shall apply:
4.2.1 You must submit the Advertising Material according to the following schedule in good time prior to the campaign launch:
- three working days in the case of a new Order;
- two working days to replace Advertising Material for a running Order;
- five working days in the case of Rich Media Advertising Material.
4.2.2 We decide at our best judgement, based on the Technical Specifications, whether and possibly to what extent we display Advertising Material or parts thereof.
4.3 You are obliged to provide Advertising Material in accordance with Section 4 in this document. Should you submit Advertiser Materials in violation of the requirements pursuant to Section 4.1, or after expiry of the dates agreed on in Section 4.2, or not at all by the start of the insertion period agreed upon, you shall compensate us for consequential damage, unless you are cannot be held responsible for same. The damage to be compensated for includes, in particular, possible additional costs for inserting the Advertiser Materials as well as our lost additional profit under the Agreement, had the Advertising Material been submitted as required.
5. ADDITIONAL PAYMENT TERMS
5.1 Additional payment terms may arise from the Order. Charges may, for instance, be calculated according to the number of (a) submitted Advertiser Materials (ad impressions) or (b) clicks on the Advertiser Materials (cost per click – CPC) or (c) other user actions (cost per order – CPO, cost per acquisition – CPA or cost per lead – CPL).
5.2 If a total budget is agreed upon for a specific period, you must spend at least 20 % and no more than 33 % of this budget during each quarter of this period, provided relevant positions are available.
6. CLASS 2 ADVERTISER MATERIALS
6.1 If your Order relates to Class 2 Advertiser Materials, the following is paramount:
6.2 Section 5.2 of these Special Provisions is not applicable.
6.3 No liability or guarantee can be agreed upon in the Order with respect to the number of ad impressions, clicks or other events in terms of Section 5.1.
6.4 The Order may specify upper limits, for instance of gross costs you are willing to pay. You only pay if the Advertiser Material was actually inserted, however.
6.5 We can only make a reasonable effort to adhere to the times, dates or positions specified in the Order. This is only applicable with the proviso that (a) we cannot guarantee compliance with the times, dates and/or positions of the Advertiser Materials and reserve the right to changes, (b) we cannot guarantee that the Advertiser Materials will not be displayed after the specified end date.
6.6 Within the framework of CPC (cost per click) based Class 2 Orders, the amount payable to Yahoo! per click is applicable to all specified positions.
7. SPECIAL TYPES OF ADVERTISER MATERIALS
7.1 Booking a “Microsite” means that Yahoo! sets up the microsites agreed in the Order using the Advertising Material submitted by you.
7.2 Where booking refers to “development fees”, we develop Advertiser Materials, Advertising Material or other content for you for the specified fee.
7.3 Booking of a “Sponsorship Type A” means that Yahoo! will provide a branded masthead with medium rectangle on pages in the Yahoo! Website specified in the Order, on which this advertising means exists.
7.4 Booking of a “Sponsorship Type B” means that Yahoo! will provide all advertising forms on the homepage of the Yahoo! Website specified in the Order.
7.5 Booking of a “Sponsorship Type C” means that the words “sponsored by” are displayed in connection with the Yahoo! Website specified in the Order.
7.6 Booking of a “Sponsorship Type D” means that Yahoo! will change the background colour of the Yahoo! Website specified in the Order. The background colour will be agreed upon between Yahoo! and yourself.
7.7 Booking of an “IMV” (Messenger world) means that Yahoo! will set up the IMV agreed in the Order using the Advertising Material submitted by you and implement this in the current Yahoo! Messenger version.
8. LIMITATION OF LIABILITY AND LIMITATION OF WARRANTY
8.1 If we fail to publish Advertiser Materials in accordance with the Agreement or do not achieve the number of ad impressions or click-throughs as agreed in the Agreement, your claim for supplementary performance will be limited to the following, whereby we reserve the right to select the method of supplementary performance:
8.1.1 We can re-insert the Advertiser Materials or substitute Advertising Material provided by you in positions and for periods to be agreed upon, until the required number of ad impressions or click-throughs is achieved or other shortcomings are remedied, or
8.1.2 Your fee can be correspondingly reduced pro-rata and we shall refund possible pre-payments pro-rata.
8.2 If you provide your Advertiser Material via a third party server, (a) the third party is your vicarious agent regarding performance of the Agreement and we shall not be liable or responsible for his services, (b) the reports provided by us in accordance with Section 2.2 of the General Terms and Conditions are considered correct and complete (c) we reserve the right to terminate the right of the third party to submit your Advertiser Materials to the Yahoo! Network at any time, should he not meet the technical or legal requirements under the Agreement. Unless, following a termination, you appoint another third party acceptable to us, we shall serve the Advertiser Materials via our servers.
9. RENEWAL OF THE AGREEMENT, TERMINATION, CONSEQUENCES OF TERMINATION
9.1 Unless specifically agreed otherwise in the Order, we are not obliged to accept extensions for Advertiser Material placements. The rates applicable at the time shall apply in case of agreed extensions.
9.2 You may only terminate Agreements in accordance with the Sections 9.2.1 et seq. below, unless otherwise agreed in the Order; § 649 BGB [German Civil Code] is excluded:
9.2.1 You may cancel a booking, free of charge, by no later than 4 weeks prior to the agreed insertion date;
9.2.2 In the event of cancellations between 4 weeks and one week prior to the agreed insertion date a cancellation fee of 30 % of the booking volume shall be applicable;
9.2.3 In the event of cancellations within a period of one week prior to the agreed insertion date a cancellation fee of 50 % of the booking volume shall be applicable;
9.2.4 In the event of cancellations after the agreed insertion date, a cancellation fee of 50 % of the booking volume not yet supplied at this point in time shall be applicable.
9.3 In the event of termination, these Sections 9 and 8 of these Special Provisions shall remain in force.
Munich, January 2009
Yahoo! Deutschland GmbH
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