This PAYMENT POLICY ("Payment Policy") is hereby incorporated into and made part of the Terms of Service and Master License Agreement between you and Yahoo regarding your participation in the Yahoo! Contributor Network ("YCN").
1. Definitions. In addition to the terms defined elsewhere in this Payment Policy, all capitalized terms have the meanings ascribed in the Terms of Service, Master License Agreement or as set forth below.
a. "Active Member" means You, provided You have logged in to Your account or profile, or have submitted Work to be published on the Site in the ninety 90 days prior to your submission of a Work for Performance Payment.
b. "Page View" means one view of a single page of Work on the Yahoo! Contributor Network containing an advertising impression. Yahoo shall in its sole discretion determine the type, frequency, and category of advertising impressions served on the Site in general and any content page in particular.
c. " Performance Payment" means Yahoo's payment to you in consideration for Works submitted by you to Yahoo pursuant to an applicable y License Grant Type, and for which Yahoo has exercised its Option. Such Performance Payments may be periodic depending on the number of page views the applicable Work generates and any corresponding continuing payment obligations by Yahoo.
d. "PPM ™ " means Payment Per Thousand Page Views ("M" being the Roman numeral for one thousand). For the purposes of this agreement, it is the rate Yahoo will pay You for every thousand (1,000) Page Views of each Work accepted under the Beta Program. The PPM may change from time to time, and is related to a particular Work. The current PPMs are located here .
e. "Site" means the any site located on YCN.
f. "Taxes" means any sales, income, value added, use and/or other applicable taxes, as well as any duties or other charges imposed on or related to the payments provided hereunder.
g. "Upfront Payment" means Yahoo's one-time upfront payment to you in consideration for Works submitted by you to Yahoo pursuant to an Exclusive License or Non-Exclusive License, and for which Yahoo has exercised its Option.
2. Payments. In consideration for the License Grant Type selected by you, and contingent upon Yahoo exercising its Option, you may be eligible for an Upfront Payment or Performance Payment or both, subject to the terms and conditions below. Notwithstanding the foregoing, you understand and agree that compensation is subject to the terms and conditions of the YCN Agreements (defined below) and that compensation is not guaranteed.
a. Upfront Payments. To be eligible for an Upfront Payment, You must (i) be in compliance with the TOS, MLA and this Payment Policy ("YCN Agreements"), (ii), have a Contributor account that has been verified by Yahoo (a "Verified Account" or "Verified"), (iii) submit Work(s) pursuant to either an Exclusive License or a Non-Exclusive License and (iv) not have previously published the Work(s) anywhere else, in any form or media.
b. Performance Payments. To be eligible for a Performance Payment under the Beta Program, You must (i) be in compliance with the YCN Agreements; (ii) have a Verified Account; and (iii) You have either published a Work via the YCN Services or logged in to Your account at least once during the ninety (90) days from the date you submitted or your Registration, whichever is later.
3. Submission Procedure; Option .
a. You must submit any Works for Yahoo's consideration via the YCN Services.
b. Upon submission of such Works by You, You hereby grant Yahoo a fully-paid up, royalty-free right and license to reproduce, display, distribute, perform, transmit, disclose and use such Works for evaluating and considering such Works, and such license will expire and revert to You ten (10) business days after the submission date ("Option Period"). During this Option Period, Yahoo will endeavor to notify you regarding its intention to exercise or decline its Option ("Option Period"); provided, however , that if Yahoo is unable to notify You due to errors or good faith delays (e.g. an error in your Registration Data), the Option Period shall be extended until Yahoo, using good faith efforts, is actually able to contact You.
c. Upon receipt of Yahoo's notice to exercise its Option, You shall offer Yahoo the opportunity to acquire the license chosen by You for the submitted Work upon the terms and conditions set forth in the applicable License Grant Type (as described in the Master License Agreement ), at either (i) a one-time price to be mutually agreed upon between Yahoo and You, or (ii) no cost to Yahoo but with proper attribution to You, as You acknowledge that such License Grant Type represents a unique and valuable online publishing opportunity for You (in either such case, the "License Grant Type Consideration"). You shall designate and select the type of License Grant Type and License Grant Type Consideration in connection with each individual submitted Work. If, within five (5) business days thereafter (or such longer period of time as the parties may mutually agree), the parties are unable in good faith to mutually agree upon the License Grant Type Consideration, no License Grant Type shall be deemed to have occurred and You shall be free to dispose of the submitted Work elsewhere without restriction hereunder. Any agreement regarding such License Grant Type Consideration, and properly incorporated into the MLA, will not supercede the terms of the YCN Agreements, unless specifically agreed upon in writing.
d. License Grant Type Consideration Offer Expiration . If in the event that you fail to establish a Verified Account ninety (90) days from when any offer appears in the Payment Queue on Your Account tab (Account>Payments), or fail to provide Yahoo with a valid, confirmed Paypal account, Yahoo's offer for the relevant License Grant Type Consideration will expire, and the License Grant type will convert to a Display Only License. Once the License Grant Type associated with a Work is converted to Display Only, you may remove or edit the content from the YCN at any time. In order to Verify your account, visit your YCN Account page.
4. Performance Payment Beta ("Beta Program"). If You are eligible for the Beta Program, please read the following provisions carefully.
a. Changes and Updates . Yahoo reserves the right, in its sole discretion, to change all or part of this Payment Policy or the Performance Payments Beta Policies and to change or discontinue the Beta Program, including changing the way in which Yahoo derives Page Views data or the display of the data. Yahoo reserves the right to refuse Your participation in the Beta Program or terminate Your participation in the Beta Program, or to terminate the Beta Program at any time. Yahoo may make these changes at any time, without notice to you and for any reason or no reason. Your continued participation in the Beta Program will constitute Your acceptance of the then-current terms and conditions, policies and service offerings.
b. Feedback . Yahoo will own and have the sole right to use any ideas, information, understandings, and concepts derived from Your use of the Beta Program or any other suggestions or information You disclose, without restriction and without compensating You in any way.
c. Your Acknowledgments . You acknowledge that: (i) the data presented in the Beta Program may not be accurate, and that You will not rely on those numbers in any way; and (ii) while Yahoo will use commercially reasonable efforts to report and pay the Performance Payments accurately, and in a timely fashion, because we are in a beta test environment there may be some errors and delays; and (iii) all right, title and interest in the data we provide to You, and in and to the Beta Program (including but not limited to all technology and processes involved in the Beta Program) are exclusively owned by Yahoo.
d. Prohibited Uses . You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate Page Views, impressions of or clicks to any of Your Work through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated page refreshing methods; (ii) act in any way that violates any Performance Payments Beta Policies posted on the Site, as may be revised from time to time, or any other agreement between You and Yahoo (including the Yahoo Agreements), or (iii) engage in any action or practice that reflects poorly on Yahoo or otherwise disparages or devalues Yahoo's reputation or goodwill. Any determination of what constitutes a breach of this section shall be made by Yahoo, in its sole discretion. Yahoo reserves the right to investigate, at its own discretion, any activity that may violate any terms of the Yahoo Agreements, including but not limited to any use of bots, spiders, or other artificial or fraudulent means or methods of refreshing or generating Page Views, or any engagement in any activity prohibited by these Terms and Conditions. In the event that Yahoo determines that You, or any person or entity acting on Your behalf is generating fraudulent Page Views, You acknowledge that it shall be deemed a breach of this Payment Policy, and Yahoo may pursue any and all applicable legal and equitable remedies against You as set forth in the Yahoo Agreements, and including an immediate suspension or termination of Your account, and the pursuit of all available civil or criminal remedies, forfeiture of any amounts owed, withholding payment for any amounts due that are a result of fraudulent activity, or suspending or terminating Your ability to publish any Work on the YCN Service or store any Work on Yahoo's servers, networks or systems. Further, You hereby agree and acknowledge that any amounts generated by or attributable to such fraudulent Page Views, as may be determined by Yahoo after it conducts a commercially reasonable investigation, and which Yahoo has already paid to You, shall be immediately refundable to Yahoo by You and You hereby expressly agree to refund such amounts to Yahoo.
e. Reports . You hereby acknowledge and agree that any data or reports disclosed to You by Yahoo are only estimates, and may be subject to further adjustments by Yahoo with respect to the authenticity of the Page Views. The determination of the number of Page Views to Your Work shall be determined solely by Yahoo's internal logs or such other method as may be reasonably determined by Yahoo. No other measurements or statistics of any kind shall be accepted by Yahoo or have any effect hereunder. The determination of what data is disclosed to You shall be determined in Yahoo's sole discretion. Any data disclosed to You shall be the considered Confidential Information of Yahoo, as defined below.
f. Termination; Cancellation . You may terminate Your participation in the Beta Program with or without cause at any time by sending written notice of Your desire to terminate Your participation in the Beta Program to contributor@yahoo-inc.com . Your participation in the Beta Program will be deemed terminated within ten (10) business days of Yahoo's receipt of Your notice. Upon such termination, subject to any setoffs, and any terms set forth in Section II(2)(12) below, Yahoo shall distribute any funds remaining in Your account, minus any administrative costs. If you fail to establish a Verified Account within ninety (90) days from when monies first appear in the Payment Queue on Your Account tab (Account>Payments), or fail to provide Yahoo with a valid, confirmed Paypal account, You forfeit any payments associated with Your account. In addition, Yahoo reserves the right to terminate Your account without notice in the event that You fail to satisfy the Active Member requirements set forth above. If you have any outstanding payments in your payment queue, and cease being an Active Member, Yahoo shall distribute any funds remaining in Your Verify account, minus any administrative costs.
g. Confidentiality . "Confidential Information" includes without limitation: (a) all Yahoo software, technology, reporting, specifications, materials, guidelines and documentation relating to the Beta Program; (b) PPM rates or other statistics relating to the YCN Sites or Your Works' performance in the Beta Program provided to You by Yahoo; and (c) any information designated in writing by Yahoo as "Confidential" or an equivalent designation. You agree not to disclose or use any Confidential Information without Yahoo's prior written consent, provided, however, You may accurately disclose the amount of Yahoo's gross payments to You pursuant to the Beta Program. Yahoo Confidential Information does not include information that (i) is or becomes generally known to the public without breach of any obligation owed to Yahoo; (ii) is independently developed by You without use of or access to any Confidential Information, as evidenced in writing; or (iii) is rightfully received by You from a third party without breach of any obligation owed to Yahoo. If You are compelled by law to disclose any Confidential Information, You shall provide Yahoo with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Yahoo's cost, if Yahoo wishes to contest the disclosure.
h. No Guarantees . YAHOO MAKES NO REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTEES WHATSOEVER WITH RESPECT TO COMPENSATION WHICH MAY OR MAY NOT BE EARNED BY YOU HEREUNDER (INCLUDING UNDER THE BETA PROGRAM). FURTHER, IN THE EVENT YAHOO PROVIDED YOU WITH DATA DISCLOSING COMPENSATION ACHIEVED BY OTHER USERS OF THE BETA PROGRAM, YOU HEREBY AGREE AND ACKNOWLEDGE THAT SUCH DATA IS PROVIDED FOR EXPLANATORY PURPOSES ONLY AND THAT ANY COMPENSATION EARNED BY ANOTHER USER OF THE BETA PROGRAM IS NO GUARANTEE THAT YOU WILL EARN AN EQUAL OR GREATER AMOUNT. YOU HEREBY AGREE AND ACKNOWLEDGE THAT YOU HAVE NO EXPECTATION AND HAVE RECEIVED NO ASSURANCES FROM YAHOO THAT (I) YOUR BUSINESS RELATIONSHIP WITH YAHOO WILL CONTINUE FOR ANY SPECIFIED TIME, (II) YOU WILL OBTAIN ANY ANTICIPATED AMOUNTS OR PROFITS IN CONNECTION HEREWITH, OR (III) YOU WILL RECOUP ANY EXPENDITURES MADE IN FULFILLMENT OF YOUR OBLIGATIONS HEREUNDER.
i. Minimum Balance . Yahoo will from time to time, establish a minimum balance, calculated by Page View, whereupon each time you attain such minimum number of Page Views, Yahoo will provide payment to You ("Minimum Balance"). For the purposes of determining whether You have reached such Minimum Balance, Yahoo shall aggregate the total number of Page Views attained by all of Your Works published on the YCN Site. Yahoo reserves the right to change the Minimum Balance threshold from time to time without notice and for any reason. Payments will be made on a monthly basis. The PPM paid to You for any particular period will be calculated based on the clout You have achieved at the time the payment is made, not the clout You achieved at the time the Page Views was recorded. You also acknowledge that Yahoo incurs administrative costs or other costs related to the Beta Program and each time that Yahoo sends You a Performance Payment. All administrative costs will be deducted from Your gross amount. Further, it is possible that Your account may, from time to time, have a negative balance due to such costs. Yahoo reserves the right to offset any amount owed to You by the amount of such administrative costs and/or Yahoo's damages due to Your breach of any terms of the Yahoo Agreements and/or if Your account is terminated for cause.
5.GENERAL TERMS
a. Conflict. . To the extent that any of the terms in the Performance Payments Beta Policies and the terms and conditions of any other Yahoo Agreement are in conflict, as between the two, the terms that are more favorable to Yahoo shall prevail.
b. Sole Compensation. Your sole compensation under the terms of the Yahoo Agreements shall consist of the License Type Grant Consideration mutually agreed upon between Yahoo and You for each respective License Type Grant for the applicable Work.
c. Payment Terms. Payments shall be made in U.S. Dollars via check or money transfer to Your designated PayPal® account. It is Your sole responsibility to establish a PayPal® account and provide accurate information to Yahoo. Any fees required by PayPal® are Your sole responsibility. You hereby agree and acknowledge that PayPal® may take up to an additional period of two (2) business days to process each payment transaction.
d. Taxes and Fees . To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully-completed Form W-9. (In the event that Company discovers that there are multiple contributor accounts associated with a single PayPal® account, we will assume for tax purposes that it is one person's income or they are spouses filing jointly, and only issue one 1099 for that PayPal® account.) For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. Activities (as described on the U.S. IRS Code) or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. All amounts payable to You by Yahoo hereunder are exclusive of any Taxes, not including taxes on Yahoo's net income. You shall pay when due, and shall defend, indemnify and hold Yahoo and its Related Parties harmless from and against any and all Taxes and shall remain solely liable for payment of all such Taxes. In the event of an assessment against Yahoo for Taxes by any taxing authority or jurisdiction, You agree to reimburse Yahoo within thirty (30) days of the date of invoice from Yahoo issued in respect thereof for all such Taxes, as well as any applicable interest and/or penalties found to be due and payable. Any bank fees related to returned or cancelled checks due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree that You are solely responsible to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Beta Program.
e. Fee Changes and Disputes. Yahoo may change its pricing and/or payment structure at any time. If You dispute any payment made hereunder, You must notify Yahoo in writing within thirty (30) days of any such payment; failure to so notify Yahoo shall be deemed a waiver by You of any claim relating to any such disputed payment. Payment shall be calculated solely based on records maintained by Yahoo. No other measurements or statistics of any kind shall be accepted by Yahoo or have any effect hereunder. The payments made hereunder are for use by You only and may not be transferred or in any manner passed on to any third party (i.e., distributed to sites managed by You that require separate payments) unless expressly authorized in writing by Yahoo (including by electronic mail).
f. Term. This Agreement shall continue in full force and effect until it is terminated by either party or until You are no longer an Active Member. Upon termination of any account in the Beta Program or of Your Contributor account, all provisions of this Payment Policy which by their nature are intended to survive shall survive, including this Section 5.
g. Publicity. You agree that Yahoo may use Your name and/or likeness in presentations, marketing materials, customer lists, financial reports, and press releases. You may not use Yahoo's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features ("Brand Features") without the express prior written permission of Yahoo.
h. Representations and Warranties and Covenants . In addition to any representations and warranties made by You in connection with any Yahoo Agreements, You hereby represent, warrant and covenant that You have provided and will continue to provide true, accurate and complete payment information to Yahoo in connection with the Works, including Your legal name, tax identification information.
i. DISCLAIMER OF WARRANTIES . YOU EXPRESSLY AGREE TO THE FOLLOWING WARRANTY DISCLAIMER. THE BETA PROGRAM, ALL PAYMENT DATA RELATED TO THE BETA PROGRAM AND ALL INFORMATION AND DATA Yahoo PROVIDES TO YOU HEREUNDER IS PROVIDED "AS IS" AND YAHOO MAKES NO WARRANTY AND NO REPRESENTATION WITH RESPECT THERETO. WITHOUT LIMITING THE FOREGOING, YAHOO DOES NOT REPRESENT OR WARRANT THAT THE YCN SITES, THE YAHOO WEBSITES AND/OR THE BETA PROGRAM WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT PARTICIPATION HEREUNDER WILL PROVIDE ANY PARTICULAR RESULTS OR RETURNS. TO THE EXTENT ALLOWED BY LAW, YAHOO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, WITH RESPECT TO THE SITE, THE YAHOO WEBSITES, THE YAHOO AGREEMENTS, AND RELATED SERVICES OR INFORMATION PROVIDED BY YAHOO AND/OR ANY PPM PAGEVIEW COUNTS. THIS WARRANTY DISCLAIMER SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN YAHOO HEREBY GRANTS THE MINIMUM EXPRESS AND IMPLIED WARRANTIES REQUIRED BY SUCH APPLICABLE LAW.
j. Indemnification . In addition to any indemnification obligations agreed to by you in the Yahoo Agreements, you further agree to indemnify, defend and hold harmless Yahoo and its Related Parties (collectively "Indemnified Parties") from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Party, arising out of, related to or which may arise from your use of the Beta Program, and/or Your breach of any term of this Payment Policy.
k. LIMITATIONS OF LIABILITY . IN NO CASE SHALL YAHOO OR ITS RELATED PARTIES BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFIT, USE OR OTHER ECONOMIC ADVANTAGE), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES, OR ANY OTHER LEGAL THEORY. YAHOO AND ITS RELATED PARTIES' TOTAL LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM, OR IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, SHALL IN NO CASE EXCEED, IN THE AGGREGATE, THE GREATER OF (I) THE AGREED UPON AMOUNTS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT, OR (II) TEN DOLLARS (U.S. $10.00). YOU ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS REFLECT A FAIR ALLOCATION OF RISK AND THAT YAHOO WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY, AND YOU AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, IN SUCH JURISDICTIONS, THE PARTIES AGREE THAT THE LIABILITY OF YAHOO AND ITS RELATED PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH JURISDICTION.
l. Force Majeure. Each party acknowledges that the other party is relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
m. Yahoo Rights. You acknowledge that, as between the parties, Yahoo owns all right, title and interest, including without limitation all IP Rights in and to the YCN Services, the YCN Sites, the Beta Program (including, but not limited to Yahoo's Brand Features, excluding items licensed by Yahoo from third parties) and that You will not acquire any right, title, or interest in or to any of the foregoing, or any component, element or part thereof. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of the foregoing or any other Yahoo services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Beta Program or proprietary information related thereto. You will not remove, obscure, or alter Yahoo's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any Yahoo services, software, or documentation (including without limitation the display of Yahoo's Brand Features.
n. Information Rights . Yahoo may retain and use, subject to the terms of the Yahoo Contributor Network Privacy Policy , all information You provide, including but not limited to demographics and contact and billing information. You agree that Yahoo may transfer and disclose to third parties personally identifiable information about You for the purpose of approving and enabling Your participation in the Beta Program, including to third parties that reside in jurisdictions that may have less restrictive data laws than Your own. Yahoo may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Yahoo disclaims all responsibility, and will not be liable to You, however, for any disclosure of that information by any such third party. Yahoo may share non-personally-identifiable information about You, including Site URLs, Site-specific statistics and similar information collected by Yahoo, with advertisers, business partners, sponsors, and other third parties. In addition, You grant Yahoo the right to access, index and cache the Site(s), or any portion thereof, including by automated means including Web spiders or crawlers.
o. Relationship of Parties . You acknowledge and agree that: (1) your relationship with Yahoo is that of an independent contractor, and nothing in this Payment Policy is intended to or should be construed to create a partnership, agency, joint venture or employment relationship with Yahoo; (2) you will not be entitled to any of the benefits which Yahoo may make available to its employees, including, but not limited to, group health or life insurance, stock purchase plan or retirement benefits; (3) you are solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of the services hereunder and receipt of fees under this Payment Policy; (4) because you are an independent contractor, no part of the fees hereunder will be subject to withholding by Yahoo for the payment of any social security, federal, state or any other employee payroll taxes, all of which are your sole responsibility and you shall indemnify Yahoo if Yahoo is required to make any such withholdings; and (5) you are not authorized to make any representation, contract or commitment on behalf of Yahoo.