EXHIBIT 10.7
ADVERTISER TERMS AND CONDITIONS
1. INTRODUCTION:
Overture Services, Inc. ("Overture") provides you access to the
Overture Marketplace (defined below), as available through the Overture
Distribution Network (as defined below), subject to your compliance with the
terms and conditions below (the "Agreement"). Please read this Agreement
carefully. By enrolling as an "Advertiser," you agree to be bound by these terms
and conditions and the terms and conditions of any Insertion Order that you
complete (either online as part of the Online Sign-Up form, or offline, when
enrolling as an Advertiser, each an "Insertion Order"), including all payment
terms (collectively, the "Agreement"). In this Agreement, "you" and "your"
refers to the Advertiser. You agree that any of your agents, representatives,
employees, or any person or entity acting on your behalf with respect to the use
of the Overture Marketplace, shall be bound by, and shall abide by, these Terms
and Conditions. You further agree that you are bound by these Terms and
Conditions whether you are acting on your own behalf or on behalf of a third
party, including another advertiser.
2. USE:
For purposes of this Agreement, the "Overture Marketplace" is the
process by which users search for a desired subject and Advertisers bid for
placement of their search listing in the search results, subject to Overture's
policies, for search terms corresponding to the desired subject. The Overture
Marketplace takes the ongoing results of the bids for placement and produces
search listings that are made available in connection with the Overture
Distribution Network, where the "Overture Distribution Network" is defined as
Overture's branded Web Site at xxxx://xxx.xxxxxxxx.xxx and various authorized
third parties who may be authorized to make the Overture Marketplace available
as a link from, an add-on service to, or otherwise in connection with Web sites
and/or applications (such Web sites or applications are a "Third Party Product")
that they control. Search listings may or may not be placed in the Overture
Marketplace you indicate in your Insertion Order(s). Overture does not guarantee
that your search listings will be available through any part of the Overture
Distribution Network, and you understand that Overture reserves the right to not
place your search listing, and/or discontinue to place your search listings on
any site or application within the Overture Distribution Network. You
additionally understand that clicks on "your search listings" include clicks on
the search terms that you have selected as well as certain misspellings,
singular/plural combinations, and other related search terms that we map to your
search listings based on the search terms you selected, your search listings
themselves or the Web sites to which the search listings link. Solely for
illustration purposes, and without in any way limiting the foregoing, if you bid
for placement on the keyword "book," your search listing will also appear in
response to a search on the keyword "books." A search listing, for purposes of
this Agreement, may include, at Overture's discretion, text and/or graphics, and
is subject to Overture's approval and the terms of this Agreement. A search
listing that appears as part of the Overture Distribution Network may (or may
not) include a search title and search description. In all cases, information
must be submitted in the form requested by Overture.
3. PAYMENT:
You agree to pay Overture all applicable charges to your account in
United States dollars, in accordance with the terms of the program and/or
payment plan you selected, including, if any, all applicable taxes, in
accordance with billing terms in effect at the time the fee becomes payable. You
agree that your service fee (if applicable to the plan you selected) and $50 of
your initial deposit is non-refundable. You understand and agree that, in
addition to any service fee, you will be charged for all clicks on your search
listings, (no matter whether a click occurred on the Overture Web site or a
Third Party Product within the Overture Distribution Network), and that such
charges will be based on the number of clicks on all your search listings,
multiplied by the cost of each of your search listings, which shall be computed
according to Overture's Marketplace rules ("Click Charges"). If you have chosen
a payment plan that provides for a fixed maximum payment per month, you
understand and agree that if your Click Charges equal or exceed your monthly
maximum payment, then your search listings will be removed from the Overture
Marketplace for the remainder of that month. You may pay Overture by credit
card, charge card, debit card, check or wire transfer. You agree and represent
that all information you provide for the purpose of enrolling as an Advertiser
will be accurate, complete and current. Your right to access your account with
Overture is subject to any limits established by Overture. If payment cannot be
charged to your credit/charge/debit card, for whatever reason, or if there is a
chargeback for any reason, or if your financial institution does not honor your
check, or if you exceed your monthly maximum payment, Overture reserves the
right to either suspend or terminate your account with Overture. Suspension or
termination includes but is not limited to, removal of your search listings from
the Overture Distribution Network. You must submit any claims or disputes you
may have with respect to any charge to your account in writing to Overture
within 60 days of such charge otherwise such claim or dispute will be waived and
such charge will be final and not subject to challenge. In the event of any
failure by you to make payment, you will be responsible for all reasonable
expenses (including attorneys' fees) incurred by Overture in collecting such
amounts.
4. ACCESS:
For purposes of this Agreement, all Web pages that Overture owns,
operates or hosts are referred to herein as the "Overture Web Site." You are
authorized to access the Overture Web Site solely to manage your advertising
account(s) and conduct searches for your own personal use. You agree that you
will not use the site or any content therein for any other purpose and that you
will not disseminate or distribute any of this information. Your right to access
your account with Overture is personal to you and non-assignable and is subject
to any limits established by Overture. You agree that you will not use any
automated means, including, without limitation, agents, robots, scripts, or
spiders, to access your account with Overture or to monitor or copy Overture's
Web Site or the content contained therein except those automated means expressly
made available by Overture, if any, or authorized in advance and in writing by
Overture (for example, Overture approved third party tools and services). The
Overture Web Site contains robot exclusion headers and you agree that you will
not use any device, software or routine to bypass our robot exclusion headers,
or to interfere or attempt to interfere with the proper working of the Overture
Web Site or the Overture Marketplace. Without limitation to the foregoing, you
further agree that you will not take any action that imposes an unreasonable or
disproportionately large load on our infrastructure (as determined by Overture).
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5. MINIMUM BID, MINIMUM COST, MINIMUM SPEND:
Your listings in the Marketplace are subject to Overture's then
current minimum bid and minimum cost requirements. Additionally, all Overture
accounts that you create shall be subject to Overture's then current minimum
monthly spend requirements.
6. NON-STOP TRAFFIC PAYMENT PLANS:
If you enroll in the Non-Stop Traffic Plan, then you authorize
Overture to automatically charge your credit card for the amount specified on
the enrollment form whenever your account has less than 3-5 days of funds left.
You understand that you will receive e-mail notification after each transaction
to notify you that your account has been replenished. Such charges will appear
on your monthly credit card statement. Overture reserves the right to terminate
this payment plan and/or your participation therein at any time. You also
understand that at any time, you may elect to discontinue your enrollment in
this plan by providing written notice to Overture. Unless you discontinue your
enrollment in this plan, you understand that this authorization is valid until
the termination of this agreement with Overture or until your credit card
expires.
7. FIXED BUDGET PAYMENT PLANS:
If you enroll in the Fixed Budget Plan, then you authorize Overture
to automatically charge your credit card each month up to the maximum amount
specified on the enrollment form. You agree that the amount charged to your
credit card shall be equivalent to your monthly budget less any credits
remaining from the prior month. You understand that you will receive email
notification from Overture at the beginning of each month to notify you of the
amount your credit card has been charged to replenish your account. Such charges
will appear on your monthly credit card statement. You understand that your
Overture account may be suspended for the remainder of the month in which your
account exceeds your budget amount. Overture reserves the right to terminate
this payment plan and/or your participation therein at any time. You also
understand that at any time, you may elect to discontinue your enrollment in
this plan by providing written notice to Overture. Unless you discontinue your
enrollment in this plan, you understand that this authorization is valid until
the termination of this agreement with Overture or until your credit card
expires.
8. ADVERTISER'S RIGHTS AND RESPONSIBILITIES:
(a) ADVERTISER SUBMISSIONS: You may submit your material for your
search listing either by e-mail; file transfer protocol; telephone; fax; U.S.
Mail; or at the Online Sign-Up form located at
https:Xxxxxxx.xxxxxxxx.xxx/x/xxx/xxxxxx/ or, if you are modifying or adding a
search listing, at our DirecTraffic Center(R) located at
https:Xxxxxxx.xxxxxxxx.xxx/x/xxx/xxxxxx/. Overture reserves the right to edit,
refuse, reject or remove any search listing at its discretion at any time. You
represent and warrant that all information, in the search listing itself or
through the Web site to which the search listing links, (i) does not violate any
law or regulation; (ii) does not infringe in any manner any copyright, patent,
trademark, trade secret or other intellectual property right of any third party;
(iii) does not breach any duty toward or rights of any person or entity
including, without limitation, rights of publicity or privacy, or has not
otherwise resulted in any consumer fraud, product liability, tort, breach of
contract, injury, damage or harm of any kind to any person or entity; (iv) is
not false or misleading; and/or (v) is neither defamatory, libelous, slanderous
or threatening.
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(b) ACCEPTING OVERTURE SUGGESTIONS: Overture reserves the right to
edit refuse, reject or remove any search listing at its discretion at any time.
From time to time, (or as part of a particular program) Overture may provide
suggestions to you for search terms, title and/or descriptions or for any other
element of a search listing but the final decision to authorize any suggestion
is yours. Ideas provided by Overture are only suggestions and you are under
absolutely no obligation to use such suggestions. It is your responsibility to
determine whether such suggestions comply with the requirements of Advertiser
Submissions section above. By using a search term, search title, search
description and/or search listing that may have been suggested by Overture, you
acknowledge that such search term, search title, search description and/or
search listing is in compliance with the Advertiser Submissions Section above
and with this Agreement.
9. YOUR SITE:
You hereby acknowledge that Overture is not responsible for the
maintenance of your Web site(s) nor is Overture responsible for order entry,
payment processing, shipping, cancellations, returns or customer service
concerning orders placed on Advertiser's Web site(s). You must update your
search listings if any information is not a current and accurate description of
information available on your Web site. You further acknowledge that your site
does not contain any Overture owned or licensed content, including but not
limited to, any Overture search listings, except pursuant to a separate signed
affiliate agreement with Overture. You hereby grant Overture the irrevocable
right to access, index, cache, and display (in connection with your listings)
the Web site(s) to which your search listings link, or any portion thereof,
including by any automated means including web spiders or crawlers. This grant
specifically includes Overture's right to create and display copies of any and
all text, graphics, images, audio, video, and all other material included or
found on such Web sites or portions thereof, including the right to create and
display thumbnail and full-scale copies of any images or video included on or
found on such Web sites or portions thereof.
10. CONFIDENTIALITY:
"Confidential Information" means any information disclosed to you by
Overture, either directly or indirectly, in writing, orally or by inspection of
tangible objects, other than information that you can establish (i) was publicly
known and made generally available in the public domain prior to the time of
disclosure to you by Overture; (ii) becomes publicly known and made generally
available after disclosure to you by Overture other than through your action or
inaction; or (iii) is in your possession, without confidentiality restrictions,
at the time of disclosure by Overture as shown by your files and records
immediately prior to the time of disclosure. You shall not at any time (a)
disclose, sell, license, transfer or otherwise make available to any person or
entity any Confidential Information, (b) use any Confidential Information, or
(c) reproduce or otherwise copy any Confidential Information, except as
necessary in connection with the purpose for which such Confidential Information
is disclosed to you or as required by applicable law. You agree to take all
reasonable measures to protect the secrecy of and avoid disclosure and
unauthorized use of the Confidential Information. All Confidential Information
shall at all times remain Overture's personal property and all documents,
electronic media and other tangible items containing or relating to any
Confidential Information shall be delivered to Overture immediately upon
Overture's request.
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11. REPRESENTATIONS AND WARRANTIES:
You represent and warrant that you have sufficient authority to enter
into this Agreement. You represent and warrant that each of your search listings
meets the standards and requirements of the Advertiser Rights and
Responsibilities section above.
12. INDEMNIFICATION:
You hereby agree to indemnify and hold harmless Overture, its
information providers, licensors, licensees, consultants, contractors, agents,
attorneys and employees from any and all liabilities, costs and expenses,
including, without limitation, reasonable attorneys' fees, that may arise from
your use of the Overture Marketplace or other Overture Web sites and/or your Web
site and/or your breach of the terms of this Agreement, including, without
limitation, the breach of any representation or warranty. You agree to be solely
responsible for defending any claim, subject to Overture's right to participate
with counsel of its own choosing, and for payment of damages or losses resulting
from the foregoing to both a third party and Overture, provided that you will
not agree to any settlement that imposes any obligation or liability on Overture
without Overture's prior written consent. Overture reserves the right to
terminate or suspend the account of any advertiser that may violate any of the
terms in this Agreement.
13. WARRANTY DISCLAIMER:
YOU EXPRESSLY AGREE THAT YOUR USE OF THE OVERTURE MARKETPLACE IS AT
YOUR OWN RISK. THE OVERTURE MARKETPLACE IS AVAILABLE ON AN "AS IS" BASIS,
WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER OVERTURE NOR ANY OF
ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, ATTORNEYS,
CONSULTANTS OR CONTRACTORS, OR ENTITIES WITHIN THE OVERTURE DISTRIBUTION NETWORK
MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE OVERTURE
MARKETPLACE, THE SUCCESS OF YOUR SEARCH LISTING AS MEASURED IN ANY WAY, ANY
INFORMATION, SERVICES OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION
WITH OVERTURE AND/OR THE OVERTURE MARKETPLACE OR ANY RESULTS OBTAINED THROUGH
THE USE THEREOF. OVERTURE HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL
INFORMATION PROVIDERS, LICENSORS, LICENSEES, CONTRACTORS, CONSULTANTS, AGENTS,
ENTITIES WITHIN THE OVERTURE DISTRIBUTION NETWORK, ATTORNEYS AND/OR EMPLOYEES OF
IT ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION (1) ANY WARRANTIES AS TO
THE AVAILABILITY, ACCURACY OR CONTENT OF THE OVERTURE MARKETPLACE AND/ OR
INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE OVERTURE MARKETPLACE;
AND (2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY
GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY
FROM STATE TO STATE.
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14. LIMITATION OF LIABILITY:
ANY LIABILITY OF OVERTURE, ITS INFORMATION PROVIDERS, LICENSORS,
LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS, ENTITIES WITHIN THE OVERTURE
DISTRIBUTION NETWORK, ATTORNEYS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION,
ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF
PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF
DELIVERY OF MERCHANDISE, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS,
COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO,
ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT,
TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE
STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO OVERTURE FOR PLACEMENT OF
SEARCH LISTINGS IN THE PRIOR SIX MONTH PERIOD. IN NO EVENT SHALL OVERTURE, ITS
INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, ENTITIES WITHIN THE
OVERTURE DISTRIBUTION NETWORK, AGENTS, CONSULTANTS, ATTORNEYS OR CONTRACTORS, BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING
OUT OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE OVERTURE MARKETPLACE
AND/OR THE SITES LINKED TO FROM THE OVERTURE MARKETPLACE OR FOR ANY BREACH OF
WARRANTY. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU. YOU AGREE THAT YOU WILL NOT HOLD OVERTURE RESPONSIBLE FOR THE
SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY
IN CONNECTION WITH THE OVERTURE MARKETPLACE AND/OR SITES LINKED TO FROM THE
OVERTURE MARKETPLACE, INCLUDING, WITHOUT LIMITATION, THOSE WITH WHOM OVERTURE
CONTRACTS TO OPERATE VARIOUS PORTIONS OF THE OVERTURE MARKETPLACE AND THOSE TO
WHOM OVERTURE PROVIDES LINKS TO FOR CONTENT, ADVERTISING OR ANY OTHER TYPE OF
DATA OR INFORMATION. WITHOUT LIMITING THE FOREGOING, OVERTURE SHALL HAVE NO
LIABILITY HEREUNDER BY REASON OF ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS
OBLIGATIONS ON ACCOUNT OF STRIKES, SHORTAGES, RIOTS, ACTS OF TERRORISM,
INSURRECTION, FIRES, FLOOD, STORM, EXPLOSIONS, EARTHQUAKES, INTERNET OUTAGES,
COMPUTER VIRUS, ACTS OF GOD, WAR, GOVERNMENTAL ACTION, OR ANY OTHER CAUSE THAT
IS BEYOND OVERTURE'S REASONABLE CONTROL.
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15. CANCELLATION OR TERMINATION:
If you are dissatisfied with the Overture Marketplace or with any of
the terms and conditions contained herein, your sole and exclusive remedy is to
terminate your account. You may cancel your participation in the Overture
Marketplace at any time by logging into DirecTraffic Center(R) and using our
Support Center. Notwithstanding anything contained in this Agreement to the
contrary, Overture may, in its sole discretion, terminate your account, and
discontinue your participation in the Overture Marketplace (or on any Web site
or Third Party Product that is part of the Overture Distribution Network ), or
your use of any search term or any search listing. Reasons for Overture's
determination to so terminate or discontinue your account or participation as
provided for above include, but are not limited to, if Overture believes that
you violated this Agreement or other policies or guidelines of Overture or of a
Third Party Product (or other member of the Overture Distribution Network) that
uses, licenses or distributes the Overture Marketplace, or if Overture believes
your conduct may be harmful to other consumers, advertisers or licensees who
participate in (or offer to its users) the Overture Marketplace. All decisions
made by Overture in this matter will be final and neither Overture nor its
licensees (or distributors) shall have any liability with respect to such
decisions. IMPORTANT: CANCELLATION OR TERMINATION MAY NOT ALWAYS ENTITLE YOU TO
A REFUND. PLEASE SEE THE SECTION ENTITLED "REFUNDS" FOR MORE INFORMATION.
Sections 3, 4, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 shall survive any
termination of this Agreement.
16. REFUNDS:
If Overture terminates your account or if you decide to terminate
your account, and you provide notice to Overture, your account will be deemed
terminated when Overture receives such notice. You will only receive a refund
for amounts not yet charged to your account. You will not receive a refund for
the initial sign-up fees or service fees as you agreed that this amount is
nonrefundable. PLEASE SEE THE SECTION ENTITLED "PAYMENT" FOR MORE INFORMATION.
17. USE OF OVERTURE MARKETPLACE SUBMISSIONS:
By submitting material to the Overture Marketplace (including
information for a search listing) you are irrevocably granting Overture, its
licensees, and any entities in the Overture Distribution Network, the right to
use all parts of the material, without limitation, including modifying it or
using it commercially and authorizing others to do so.
18. NOTICES:
Overture may give general notices to you by posting on the Overture
Marketplace or xxx.xxxxxxxx.xxx or any one of Overture's Web sites or, if
possible, by electronic mail to the email address provided by you to Overture.
It is your responsibility to ensure that your e-mail address and any other
contact information you provide to Overture is updated and correct.
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19. CHOICE OF LAW:
This Agreement shall be construed and controlled by the laws of the
State of California. Any dispute arising from this Agreement, including, without
limitation, a breach of this Agreement, shall be governed by the laws of the
State of California, without regard to its conflict of laws principles. You
agree to submit to the exclusive jurisdiction of the state and federal courts
located in Los Angeles. Any claim against Overture arising from this Agreement
shall be adjudicated on an individual basis, and shall not be consolidated in
any proceeding with any claim or controversy of any other party.
20. OTHER:
This Agreement constitutes the entire Agreement between the parties
with respect to the subject matter contained herein and supersedes all previous
and contemporaneous agreements, proposals and communications, written or oral,
between you and Overture. Only a written instrument executed by the party
waiving compliance may waive the terms or covenants of this Agreement. If any
provision of this Agreement is held or made invalid or unenforceable for any
reason, such invalidity shall not affect the remainder of this Agreement, and
the invalid or unenforceable provisions shall be replaced by a mutually
acceptable provision, which being valid, legal and enforceable comes closest to
the original intentions of the parties hereto and has like economic effect. This
Agreement is not intended to benefit, nor shall it be deemed to give rise to,
any rights in any third party. Overture may change this Agreement at any time
upon notice published on the Overture Marketplace or any one of Overture's Web
sites or by e-mail notification to you. Any use of the Overture Marketplace or
any of Overture's Sites after such notice shall be deemed to be continued
acceptance of this Agreement including its amendments and modifications.
Overture reserves the right to discontinue offering the Overture Marketplace at
any time.
Please do not hesitate to contact us if we can be of any further
assistance.
Sincerely,
/s/ Xxxx Xxxxx
Xxxx Xxxxx
Account Development Team
Overture Client Services
E-mail: xxxxxxxxx@xxxxxxxx.xxx
Toll Free: (866) P4P-SEARCH (747-7327)
xxxx://xxx.xxxxxxxx.xxx
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