Overture Services, Inc. d/b/a Yahoo! Search Marketing Affiliate Agreement
This affiliate program agreement (“Agreement”) is entered into between Overture Services, Inc. d/b/a Yahoo! Search Marketing (referred to herein as “us” or “we”), and you, the affiliate (referred to herein as “you” or as the “Affiliate”) with respect to the Yahoo! Search Marketing affiliate program.
A. Training Requirement : You are eligible to take part in this affiliate program after and only after you completing the following:
• Registration – Using the signup form provided to you, you must enter your name, company name (if applicable), a valid email address, a valid postal address, a valid phone number, your US Tax ID number or Social Security number and your URL (if applicable). Unless waived by Kowabunga on our behalf, you will be responsible for a $50 registration fee payable via credit card.
• Training – Once registered, you will be given access to online training materials. You must follow the instructions to view the training materials.
• Receive a passing grade on the Exam – After you have completed training, you may take the provided exam. You must receive a passing grade of 80%. If you do not receive a passing grade, you must take the exam again.
B. Residency Requirement : We will only accept affiliates who reside in or conduct legal business in:
C. Website/Business Eligibility: An application will be automatically rejected if it is submitted from an entity that has a web site with any of the following content or which engages in any of the following activities:
- Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promotes sexually explicit materials
- Promotes violence
- Promotes unlawful activities
- Violates intellectual property rights
- Engages in Unsolicited Bulk Emailing (also known as spam )
- Contains any use of the Yahoo!, including its affiliated entities, trademarks, names and/or associated logos
If, at a later time after the Application is accepted, your web site is found to contain any of the above, we reserve the right, at our sole discretion, to terminate the Agreement and your eligibility under this program immediately.
D. Continued Eligibility : You will continue to be eligible for the Yahoo Search Marketing affiliate program if you:
- Provide us with updated information upon change to email address, phone number, postal address or US Tax filing status.
- Agree to receive updates regarding the Yahoo Search Marketing affiliate program via email
- Take the necessary steps to update your Links and materials promoting our products/services when new information is made available to you, and
- Do not violate any portion of part (I)(C) above.
E. Ineligibility of Adware/Spyware/Parasiteware : We will refuse all applications or signups from affiliates which we believe participate in spyware, adware or parasiteware techniques for driving traffic. We reserve the right to research and investigate affiliates and their activities and, at our own discretion, determine whether or not these practices are in place. Affiliates found in violation of this policy will be immediately terminated from the program and will forfeit all commissions.
F. You may bid on search terms available from Web sites, search engines or other directory or referral services (e.g., Overture, Google, and Yahoo!), provided that (i) if you bids on exact Yahoo! or Yahoo! Search Marketing product names as search terms (by way of example but not limitation, Yahoopersonals or Yahoo Personals) then all such search result placements link directly to our page, (ii) if you bid on other permitted search terms then all such search result placements link directly either to our page or to your page which is primarily devoted to promoting our service and is otherwise in compliance with this Agreement, and (iii) your search terms, listing titles and descriptions, and the content of your Web sites do not violate the trademark or other rights of us or any third party. In cases in which you bid on a term that may be the trademark of a third party, you must present content on your Web site that (a) refers to the trademark or its owner or related product in a permissible nominative manner without creating a likelihood of consumer confusion (for example, comparative advertising, or commentary about the trademark owner or its product) or (b) uses the term in a generic or merely descriptive manner. In addition, your listing shall disclose the nature of the relevant content.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
We will be responsible for providing all information necessary to allow you to make appropriate Links from Your Site to Our Site. You will be solely responsible for processing every application placed by a customer following a Link from Your Site, for tracking the number and amount of sales generated by the Link from Your Site, and for providing information to us regarding sales statistics. Also, we will be responsible for credit card authorizations, payment processing, cancellations, returns, and related customer service, it being understood that such activities shall be for our account.
IV. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for:
- The technical operation of your site and all related equipment
- The accuracy and appropriateness of materials posted on your site (including, among other things, all product-related materials)
- Ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
- Ensuring that materials posted on your site are not libelous or otherwise illegal.
We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
A. General Terms. As an Affiliate, we will make available to you a variety of graphic and textual links (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to ours.
B. Agreements Regarding Links : In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic or textual images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate Sites shall display such graphic and/or textual images prominently in relevant sections of their site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site will in no way alter the look, feel, or functionality of our site.
C. Use of Client Trademarks : Other than the right to display the links containing Client trademarks, names and logos on Affiliate's internet site in the manner prescribed by us. You shall have no right to otherwise utilize or display Client Trademarks without our prior specific written approval, in each instance of proposed use. Any use of the Client Trademarks shall be in accordance with our prevailing trademark brand usage guidelines which will be provided to you from time to time. Any use of the Client Trademarks shall inure to the benefit of Yahoo! Inc. and Yahoo! Search Marketing.
We reserve exclusive rights as to the advertising of our trademarked company name within all pay-for-placement and all other search engines worldwide.
A. Commission Schedule. You will earn commissions (referral fees) based on revenues according to the commissions schedules to be established by us. The current commission schedule is:
- $20 (twenty US dollars) for each visitor that signs up for Local Sponsored Search Self Serve
- $80 ( eighty US dollars) for each visitor that signs up for Sponsored Search Fast Track
Fast Track Service
Under Yahoo! Search Marketing's Fast Track Service (or its equivalent) means that a prospective advertiser can either call Yahoo! Search Marketing toll free or complete an online form and a Yahoo! Search Marketing consultant will contact that prospective advertiser. For a one-time sign-up fee paid to Yahoo! Search Marketing by the advertiser, a Yahoo! Search Marketing consultant will create up to 100 search listings for the advertiser and process a new account within two business days. The advertiser must also make a minimum deposit to activate its Yahoo! Search Marketing account. Each new Yahoo! Search Marketing account has a minimum monthly spend and there is a minimum bid requirement per clickthrough.
Yahoo! Search Marketing's Self Serve Service
Under Yahoo! Search Marketing's Self Serve Service (or its equivalent) means that a prospective advertiser sets up its Yahoo! Search Marketing account (contact information, selection of keywords, writing of titles and descriptions and selection of keyword bid amount) on its own online. The advertiser must make a minimum deposit to activate its Yahoo! Search Marketing account. Each new Yahoo! Search Marketing account has a minimum monthly spend and there is a minimum bid requirement per clickthrough.
Our Yahoo! Search Marketing affiliate program provider, KowaBunga Marketing, Inc. will be responsible for drafting and sending your commission checks from an account funded by us. Commissions will be paid on a monthly basis. Approximately sixty (60 ) days following the end of each calendar month, KowaBunga Marketing, Inc. will send you a check for the commissions earned on advertiser services purchased and paid during the previous month . , provided that Overture Services, Inc. d/b/a Yahoo! Search Marketing has made such payments to Kowabunga Marketing, Inc. . Overture Services, Inc. d/b/a Yahoo! Search Marketing and Yahoo! Inc. and their affiliated entities, make no representations or guarantees to you about the amount of commissions you may earn or receive under this program.
However, if the referral fees payable to you for any calendar month are less than $50, we will hold those referral fees until the total amount due is at least $50 or (if earlier) until this Agreement is terminated. If a Product that generated a referral fee is not paid in complete by the customer or is purchased by the use of a fraudulent credit card, we will deduct the corresponding referral fee from your next payment. If there is no subsequent payment, we will send you an invoice for the commission paid on sales. You will be responsible for paying this invoice within sixty (60) days of receipt. If referral fees otherwise due you arise from any of your activities which are in violation of Section VII (Anti-Spam Policy) below, then you understand by signing this Agreement that you will neither be eligible for nor shall be paid such referral fees.
Affiliates are not eligible to earn commissions on their own purchases of any Yahoo! Search Marketing advertising. In addition, you will not be paid commissions on (a) renewals of Yahoo! Search Marketing advertiser requisitions, (b) duplicate Yahoo! Search Marketing advertiser requisitions, (c) any other new Yahoo! Search Marketing advertisers who are the result of unreasonable activity as determined by us in our sole discretion, (d) any new Yahoo! Search Marketing advertiser who is an advertiser with us for less than three (3) consecutive months, or for any activities outside of the territory identified below or for advertisers or activities directed at advertisers or any marketplace that is outside of the territory of the United States and Canada.
United States Affiliates (individual/resident/corporation/business) must provide KowaBunga Marketing, Inc., or Kowabunga Technologies, our Affiliate Marketing solution provider, with a completed W-9 Federal Tax form before any checks will be issued to you. A 1099 will be issued to you only if you reach the maximum payout allowed under Federal tax law (currently $600 - 5/1/05 ). KowaBunga Marketing, Inc. will provide you with the necessary form. You are responsible for the reporting of all income and payment of all taxes, charges and penalties associated with any amounts received by you under this program.
We do not and will not tolerate the sending of unsolicited email messages and will prosecute all offenders to the fullest extent of the law. By agreeing to the terms and conditions of this agreement, you also agree to the following. Your failure to comply with any of the following terms will result in immediate termination from the Affiliate program and will render you ineligible for any payments that may otherwise be due you.
a) e-mails promoting Yahoo! shall not contain or include a falsified sender domain name or falsified IP address;
b) e-mails promoting the Yahoo advertisements shall not be routed or relayed through servers that the sender does not have explicit authorization to use;
c) e-mails promoting the Yahoo! advertisements shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
d) all e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; This includes your physical address.
e) no e-mails promoting Yahoo! shall be sent for the purpose of harvesting the e-mail addresses in order to send future unsolicited e-mails;
f) all e-mails promoting Yahoo! will be sent to individuals who have given you their “Affirmative Consent” as defined in Sec. 3.1 of the “CAN-SPAM Act of 2003” (viewable at GPOAccess.gov) which by its reference is incorporated into this document.
g) every e-mail promoting Yahoo! advertisements shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you
h) you shall process any and all opt-out requests within three (3) business days, or less of the request.
i) unless otherwise directed by Yahoo! in writing, you shall not use Yahoo!, or its represented advertisers names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other Yahoo identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the "from" line as well as the "re:" line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users.
j) you agree and affirm to comply with all the rules, regulations and guidelines set forth in the “CAN-SPAM Act of 2003” as well as all obligations and provisions herein.
The term of this Agreement will begin upon our acceptance of your Affiliate application executed by filling out our application form and clicking on the submission button and will end when terminated by either party.
Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Except as otherwise provided, you are only eligible to earn referral fees on sales occurring during the term.
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on this site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS Agreement. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW Agreement ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
X. Representations and Warranties
You represent and warrant to us that:
(a) you will comply with all applicable laws, regulations and guidelines in participating in this Yahoo! Search Marketing affiliate program,
(b) you will comply with our current brand feature usage guidelines as provided by us from time to time,
(c) you have full right, power and authority to enter into and perform this agreement,
(d) you are above the age of eighteen (18) as of the date of your acceptance of this Agreement,
(e) you will not infringe any third party rights of ownership, including but not limited to any intellectual property rights of any kind, during the course of your participation in the Yahoo! Search Marketing affiliate program,
(f) all advertisers will agree to our standard terms and conditions, and
(g) you understand and agree to abide by all terms of this Agreement.
You agree to indemnify, defend and hold harmless Overture Services, Inc. d/b/a Yahoo! Search Marketing, Yahoo! Inc. and Kowabunga Marketing, Inc., our respective affiliates, directors, officers, employees, agents, successors and assigns (the “Yahoo! Indemnitees” and the “Kowabunga Indemnitees”, respectively) from and against any and all claims, damages, expenses, costs (including reasonable attorney's fees) and liabilities (including settlements) brought or asserted by third parties against the Yahoo! Indemnitees and the Kowabunga Indemnitees related to, arising out of or resulting from your breach of any of your obligations under this Agreement, including but not limited to your representations and warranties set forth in Section X above, the terms of the permissions granted to you to use our trademark or Links, and/or any violation of any right, including but not limited to any intellectual property right, right of publicity or right of privacy of the Yahoo! Indemnitees, its suppliers or any other party. Yahoo! Indemnitees and/or the Kowabunga Indemnitees shall promptly notify you of any such claim and you shall, at your own expense, indemnify, defend and hold harmless the Yahoo! Indemnitees and the Kowabunga Indemnitees from and against all costs of defending the claim, including reasonable legal fees (including those incurred by the Yahoo! Indemnitees and the Kowabunga Indemnitees in enforcing this indemnification provision). You shall not have any right, without the Yahoo! Indemnitees' or the Kowabunga Indemnitees written consent to settle any such claim covered by this Section XI. Neither the Kowabunga Indemnitees nor the Yahoo! Indemnitees shall have any right to settle a claim covered by this Section XI on the other party's behalf.
XII. Limitation of Liability Overture Services, Inc. d/b/a Yahoo! Search Marketing, Yahoo! Inc. and, our respective affiliates, directors, officers, employees, agents, successors and assigns, and kowabunga marketing inc. WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA, RELATED TO, RESULTING FROM OR ARISING IN CONNECTION WITH THIS AGREEMENT, the sponsored search listings, our trademarks, links, content, OR THE YAHOO! SEARCH MARKETING AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER TO THIS AGREEMENT FOR THE SIX (6) MONTHS PRECEDING THE OCCURRENCE which gave rise to the CLAIM. LIABILITY UNDER THIS SECTION XII WILL BE SHARED EQUALLY AMONG THE PARTIES AGAINST WHICH SUCH LIABILITY IS CLAIMED.
THE FOREGOING STATES YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF, RELATED TO OR RESULTING FROM THIS AGREEMENT, THE AFFILIATE PROGRAM, COMMISSIONS OR ANY OTHER MATTERS OF OR CONCERNING THE YAHOO! INDEMNITEES', THE KOWABUNGA INDEMNITEES' OR YOUR ACTIVITIES OR OBLIGATIONS UNDER THIS AGREEMENT OR THE AFFILIATE PROGRAM.
XIII. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
This Agreement will be governed by the laws of the United States and the State of California , without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Sunnyvale , California and/or in Santa Clara County , California , and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
Yahoo! Inc.
701 First Avenue
Sunnyvale , California 94089
BY CLICKING “ACCEPT” OR “I ACCEPT”, YOU WILL BE INDICATING YOUR FULL ACCEPTANCE OF AND AGREEMENT TO THE ABOVE TERMS OF THIS AGREEMENT.
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