Rich Media Terms and Conditions

1. INTRODUCTION AND DEFINITIONS. We provide you and, if applicable, Authorized Users, access to our rich media program (the “Program”) for your use, subject to your acceptance of and compliance with these Rich Media Terms and Conditions (the “Terms and Conditions”), and the terms and conditions of any applicable order form(s) that you or your Affiliates enter into, online or offline, that specifically references these Terms and Conditions (each, an “Order Form”) (collectively, the “Agreement”). All references to “ads” in the Agreement include all ads that are created or served through the Program, including your client’s ads. In the Agreement, (i) “we,” “us,” and “our” mean Oath Holdings Inc. (“Yahoo”) (ii) a “Yahoo Company” means Yahoo, Overture Services, Inc. (“Overture” or “Yahoo Search Marketing”), or another Affiliate of Yahoo or Overture, (iii) “Yahoo Entities” are the Yahoo Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, and third-party service providers, (iv) “you” and “your” mean the entity signing below, the company name you provided during the online registration, or the company name in an Order Form, and any of its Affiliates that execute an Order Form for the Program, (v) “Yahoo Code” is proprietary software code and related tools that we may offer to you in connection with the Program, and which are part of the Program; (vi) “Affiliate” means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity, and (vii) “Authorized Users” means your agents, representatives, contractors, account managers, and any person or entity acting or apparently acting on your behalf, and your Affiliates that access the Program without executing an Order Form. Terms used but not defined herein will have the meanings given to such terms in the Order Form. Terms used in any Order Form but not defined therein will have the meanings given to such terms in these Terms and Conditions. All definitions shall apply both to their singular and plural forms, as the context may require.

2. PAYMENT. You agree that, in addition to any set up fees, you will be charged for the monthly, serving, overage, and other fees specified in an Order Form. Each invoice shall be for the greater of (a) charges incurred or (b) the minimum fee set forth in the Order Form, and the minimum fee shall apply for any partial month and will not be pro-rated. We reserve the right to change the pricing, fees, and minimum volume commitments in an Order Form at any time upon thirty (30) days written notice to you. You agree to pay us all charges to your account in the currency indicated by us. You agree that our measurements are the definitive measurements under the Agreement and will be used to calculate your charges. Unless you prepay, we will submit an invoice to you at the e-mail or mailing address (at our discretion) on the Order Form or as required by applicable law, and you agree to pay such charges, without offset or deduction, within 30 days of the invoice date. We shall determine whether you may be and/or remain on an invoice basis, and we may require payment by credit card. If we agree to your request to send an invoice to a third party on your behalf, you agree that such third party will timely pay the invoice, and in the event such party does not pay the invoice, you are obligated to immediately pay all such amounts. Further, if we do not receive timely payment (including if your financial institution does not honor your check/cheque or we receive a chargeback), you shall pay all amounts due on your account upon demand and, in addition to other rights, we may suspend performance and/or terminate any agreement with you. All payments of service fees, unused promotional credits, and initial deposit(s) are non-refundable and our property. You agree to submit any disputes about charges to your account(s) to us in writing within 60 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge. If you fail to make payment as set forth herein, you will pay (i) a late fee equal to 1% monthly (or the highest amount allowed by law if less than 1% monthly) of all past due charges, and (ii) all reasonable expenses (including attorneys’ fees) incurred by us in collecting past due charges. Charges and fees do not include any applicable sales, use, value-added, withholding, excise and any other similar taxes, or government charges (exclusive of our income taxes), which are payable by you and are in addition to any amounts due to us hereunder. Accounts with no activity for more than 24 months may be closed by us and will be assessed an account closing fee not to exceed the lesser of $25 U.S. (or its equivalent), or the balance in the applicable account. If a balance remains (other than unused promotional credits and initial deposits), we will attempt to refund any portion of such balance that may be owed to you. In the event we are unable to refund any such balance using your contact information on file with us, we will dispose of the credit balance pursuant to the Agreement and our policies and procedures.

3. ACCESS. You agree that you will not: (i) use any automated means, including agents, robots, scripts, or spiders, to access, monitor, scrape, or manage your account with us, or to access, monitor, scrape, or copy the Program or Yahoo Company systems or any data therein, except those automated means expressly made available by us or authorized by us in advance in writing (for example, third-party tools approved by us), (ii) interfere or attempt to interfere with the proper working of the Program or Yahoo Company systems, (iii) use or combine the Program with software offered under an open source license which would create any obligations with respect to the Program contrary to the Agreement, or grant to any third party any rights to or immunities under our intellectual property or proprietary rights in the Program, nor (iv) use the Program in connection with any ultrahazardous activity, or any other activity for which its failure might result in serious property damage, or death or serious bodily injury. The Program, including formatting, passwords, and access codes related to your account may not be used by, nor made available to, any third party, except Authorized Users. You agree to promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us, such as the unauthorized disclosure or use of your username or password. Authorized Users must comply with the Agreement and you are liable for their acts and omissions in connection with the Agreement, and any charges, costs, fees, or expenses they may accrue. We reserve the right to modify or discontinue offering the Program or any part thereof. Your Information (defined below) and ads must comply with our policies and specifications, which we may change from time to time in our discretion.

4. LIMITED USE LICENSE. We grant you a non-exclusive, revocable, non-transferable, non-assignable, non-sublicensable, limited-use license to use the Program for the sole purpose of creating rich media online ads for display in the United States. As part of the Program, we may provide proprietary analytic tools to monitor impressions and traffic associated with the ads you serve through the Program (“Rich Media Analytics”). You agree that your use of Rich Media Analytics will be limited to your internal business use in the United States. While using the Program, you agree to, and to cause your Affiliates, Authorized Users, and clients to: (i) obtain all rights and permissions necessary for the Yahoo Companies to collect and use the Rich Media Analytics data, including statistical and traffic information collected by us and/or provided by you or an Affiliate, Authorized User, or client, and (ii) maintain and adhere to a privacy policy on each website at which an ad is served which shall, at a minimum: (a) be available as a clear and conspicuous link from the main page of those websites and any other website pages where visitors may provide personally identifiable information, (b) comply with all applicable privacy laws, rules, and regulations, and (c) contain language materially similar to the following:

   “We have contracted with Yahoo/AdInterax to serve advertisements on our website, and where authorized by us, Yahoo may use cookies, web beacons, and/or other technologies to compile anonymous statistics to monitor visitor interaction with, and performance of, these advertisements. If you choose, you may opt out from Yahoo/AdInterax’s collection of such anonymous information by clicking on the “Opt-Out” button located at the following link: http://adinterax.com/site/privacy.bhtml . In some instances, we may request Yahoo/AdInterax to collect personal information you enter into an advertisement. In these situations, Yahoo/AdInterax collects this information and passes it to us.”

5. YOUR PROGRAM OBLIGATIONS. You agree that we are not responsible for any aspect of your or third-party ads. You represent, warrant, and covenant that all information you provide (including our suggestions) in connection with the Agreement and/or in an ad, including all creative, titles, descriptions, trademarks, listings, abstracts, keywords, ad target options, domain names, content of ads, data, data feeds, and URLs (each of the foregoing, individually and collectively, “Information”) is, and will be updated to remain, current and accurate. In order to participate in the Program, you grant the Yahoo Entities a non-exclusive, royalty-free, worldwide license in connection with the Program to use, copy, adapt, reformat, recompile, manipulate, communicate by telecommunication, and/or modify any part of the Information for public performance, public display, and distribution. You agree that none of the Yahoo Entities shall have any liability for your ads or Information. You agree to notify us in writing at least five (5) days prior to the launch of any campaign using the Program. This notice must include the total number of impressions to be delivered via the Program and the flight dates for that campaign. You hereby grant us the right to use your name and logo, including for display on our website(s), to disclose you as one of our authorized publishers that use this Program. You also acknowledge that your website supports the rich media ad formats offered through the Program and specified at the Program website (or other location designated by us). Furthermore, you agree to undertake a periodic review to confirm that your website supports the rich media ad formats specified by us.

6. CONFIDENTIALITY. “Confidential Information” means any information disclosed to you by us, 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 us, (ii) becomes publicly known and made generally available after disclosure to you by us other than through your action or inaction, or (iii) is in your possession, without confidentiality restrictions, prior to the time of disclosure by us as shown by your files and records. You shall not at any time: (i) sell, license, or transfer any Confidential Information, (ii) disclose or otherwise make available to any person or entity any Confidential Information (other than to those of your employees and Authorized Users who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in the Agreement and who have a legitimate need to know such Confidential Information in connection with the Agreement), or (iii) access, use, reproduce, or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to you and in accordance with the Agreement. You agree to take all measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information. If required by law to disclose Confidential Information, you may do so provided that: (a) you give us prompt written notice of such requirement prior to such disclosure, (b) at our request, you assist us in obtaining an order protecting the Confidential Information from public disclosure, and (c) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain our personal property, and all documents, electronic media, and other items containing or relating to any Confidential Information shall be delivered to us, destroyed, or uninstalled immediately upon our request, or upon termination of the Agreement. Nothing contained in the Agreement will prevent a Yahoo Company from complying with applicable privacy laws and regulations, and if there is any conflict between the Agreement and the terms of the applicable Yahoo Company privacy policy (“Privacy Policy”), the Agreement shall control. Notwithstanding anything to the contrary in the Agreement or the applicable Privacy Policy, all data and information gathered or received by us in connection with providing the Program and all information described in the applicable Privacy Policy may be shared with and used by (x) the Yahoo Entities (and you acknowledge the country of the Yahoo Entity receiving the data or information may not afford the same level of protection of such data as the country in which the data or information was collected), and/or (y) certain selected third parties only in anonymous form. You may not issue any press release or other public statement regarding the Agreement, the Program, or a Yahoo Company without our prior written consent.

7. REPRESENTATIONS. You represent, warrant, and covenant that: (i) you have the rights, authority, and any required permission and consent to enter into the Agreement, (ii) you are a business, not a consumer, (iii) your use of the Program is solely for lawful business purposes, (iv) all Information is free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any Yahoo Company system data or information, (v) a click on any ad used in connection with this Program will not: cause damage to a user’s computer, download a software application(s), change a user’s settings or create a series of multiple, sequential, stand-alone advertisements (including by pop-up window or pop-under window), (vi) you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent (as determined by us) marketing activities relating to the Program, (vii) the Information, the ads (including products and services referenced therein), the website(s) to which the ads link, all emails, newsletters, and other materials and technology in connection therewith, any tools or code you use or make available in connection with the Program, and/or any act or omission by you relating to the Program or the Yahoo Entities: (1) do not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, or Yahoo Company policies or guidelines (collectively, “Laws”), (2) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (3) do not breach any duty toward, or rights of, any person or entity, including rights of publicity and/or privacy, (4) are not false, deceptive, misleading, unethical, defamatory, libelous, or threatening, and (5) do not (as determined by us) reflect poorly on or tarnish the reputation or goodwill of a Yahoo Entity, (viii) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Program, or any aspect or portion thereof, or Confidential Information, including source code or algorithms, (ix) you will not alter or remove any identification, trademark, copyright, or other notice from any aspect of the Program, (x) you will comply with any trade sanction, or import regulation that applies to your use of the Program and agree to obtain all necessary licenses to use, export, re-export, or import the Program as applicable, and (xi) you will not provide access to the Program, except to Authorized Users or employees who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in the Agreement.

8. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless the Yahoo Entities from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with your Information and/or ads, your or Authorized Users’ use of the Program, or Yahoo Company system, your website, or your or Authorized Users’ breach of the Agreement. You agree to be solely responsible for defending any Claim against a Yahoo Entity, subject to such Yahoo Entity’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Yahoo Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Yahoo Entity without its prior express written consent.

9. WARRANTY DISCLAIMER. YOU EXPRESSLY AGREE THAT THE PROGRAM, RICH MEDIA ANALYTICS, YAHOO! CODE, YAHOO! COMPANY SYSTEMS, AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WE HEREBY DISCLAIM ON BEHALF OF ALL YAHOO! ENTITIES ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF THE YAHOO! ENTITIES IN CONNECTION WITH THE AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, SHALL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO US PURSUANT TO THE AGREEMENT IN THE SIX-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL ANY YAHOO! ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT. YOU AGREE THAT YOU WILL NOT HOLD US RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT.

11. TERMINATION. At any time, for any or no reason, you or we may terminate the Agreement and/or your participation in the Program, and we may suspend or limit your participation in the Program or any part thereof. The Yahoo Entities shall not have any liability regarding the foregoing decisions. Notwithstanding the foregoing, unless the Agreement is terminated due to a breach by you, we will continue to provide you access to the Program for thirty (30) days after the date of termination. Except as detailed in the prior sentence, upon any termination of the Agreement, you will immediately cease accessing and using the Program and Rich Media Analytics. Upon termination, suspension, or discontinuation of the Program or your participation therein, your outstanding payment obligations incurred under the Program will become immediately due and payable. Sections 2, 3 (second, fourth, and fifth sentences only), and 6 (third, fourth, and seventh sentences only), and 7 through 14 of these Terms and Conditions, the defined terms of the Agreement, and any applicable provisions specified in an Order Form, shall survive termination of the Agreement.

12. NOTICES. We may give notices to you by posting on any Yahoo Company website, or by email to the address provided by you to us. It is your responsibility to ensure that your contact and account information (including your email and billing addresses) is current and correct, and you will promptly notify us in writing of any changes to such information. All notices to us shall be sent via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, Oath Holdings Inc., 701 First Avenue, Sunnyvale, California 94089.

13. CHOICE OF LAW. The terms of the Agreement and any dispute relating thereto or between you and us shall be governed by the laws of the State of California, without regard to conflict/choice of law principles. You and we expressly agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, or another location designated by us. Any claim against us shall be adjudicated on an individual basis and shall not be consolidated in any proceeding with any claim or controversy of any other party.

14. OTHER. The Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals, representations, claims, and communications in all forms of media (including all instructions, advertisements, messages, and policies), written and oral, regarding the subject matter contained herein. In the event of a conflict between these Terms and Conditions and an Order Form, these Terms and Conditions shall take precedence. Notwithstanding the foregoing, an Order Form may amend these Terms and Conditions only if the amended terms contained in such Order Form: (i) apply only to the account(s) listed in the Order Form, (ii) apply only to that Order Form and not to any other Order Forms, and (iii) specifically identify the provision(s) of these Terms and Conditions they amend. No terms or conditions other than those set forth in these Terms and Conditions or an Order Form shall be binding on us unless expressly agreed to in writing by us. Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term(s) and/or condition(s) of the Agreement. No waiver by you or us of a breach of any provision hereof shall be deemed a waiver of any other breach of such provision or a waiver of the provision itself. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Agreement, and the invalid or unenforceable provision shall be replaced by a valid provision that has a similar economic effect. We shall have no liability under the Agreement by reason of any failure or delay in the performance of our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond our reasonable control. You and we are independent contractors and nothing in the Agreement shall be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us. Except as otherwise set forth in the Agreement, neither you nor we shall have any right, power, or authority to create any obligation or responsibility on behalf of the other and the Agreement is not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party. You may not assign, sublicense, or transfer the Agreement or any right or duty under the Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 14 shall be void and of no force or effect. We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity such as to our Affiliate(s). The Program is proprietary to us and is protected by the applicable state, federal, and international intellectual property laws and we retain all rights, title, and interests in the Program, together with all derivative works, modifications, enhancements, and upgrades, but excluding your Information. Any rights not expressly granted in the Agreement are reserved by us, and all implied licenses are disclaimed. Headings used in the Agreement are for reference purposes only. The term “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity. We may change the Agreement and/or a Privacy Policy at any time, notwithstanding Section 12, above, by posting such on the applicable Yahoo Company website or by email, and such revised Agreement and/or Privacy Policy shall supersede and replace the earlier Agreement and/or Privacy Policy. Any use by you or Authorized Users of the Program after such notice shall be deemed to be acceptance by you of the revised Agreement and/or Privacy Policy, including any amendments and modifications thereto. You understand and agree that services and obligations to be performed by us hereunder may be performed by other Yahoo Companies and/or third-party service providers.

The Rich Media Terms and Conditions were last updated on 2018-01-02

Version 1.5