other governmental fees, the computation and payment of which (other than taxes on Microsoft’sincome) shall be Your responsibility. Microsoft reserves the right to collect taxes or othergovernmental charges if required to do so by applicable law. You may view reports of the Microsoftcalculation of Click Fees online through the adCenter Site, and the Microsoft reports will be theexclusive standard for billing. You understand that third parties may generate impressions orClicks on Your ads for prohibited or improper purposes, and You accept the risk of any suchimpressions and Clicks. You must notify Microsoft in writing of any disputed amount within 45 daysfollowing the date of an invoice or charge to Your payment method. Following receipt by Microsoftof such written notice, Microsoft will research such inquiry and will notify You of a resolutionwithin a reasonable time period. The resolution of such inquiry will be determined by Microsoft atits sole discretion, and Microsoft has no obligation to provide a particular remedy to You. Youremain obligated to pay the full invoiced amount if You fail to provide such written notice toMicrosoft.5. ADCENTER APIa. API Access. Microsoft may, subject to Your compliance with this Agreement and any otherMicrosoft program requirements, grant You with the use of and access to the adCenter applicationprogramming interface (“API”). The API enables programmatic access to the advertiser accounts forthe Microsoft adCenter advertising service (“adCenter Accounts”). If You have a single user token,You may use the API only to manage Your own adCenter Accounts. If You have a third-partydevelopment token, You may use the API to manage Your own adCenter Accounts and to develop softwareor services for use by others to manage their own adCenter Accounts. Microsoft reserves the rightto discontinue offering the API at any time at its sole discretion. Microsoft may provide You oneor more passwords or other credentials for use of the API (“API Credentials”). These APICredentials are separate from the credentials associated with adCenter Accounts. You may not usethe API to create new adCenter Accounts even if the API enables such functionality. You may use theAPI only to manage existing adCenter Accounts.b. Prohibited Actions. You will not, and will not authorize any third party to (i) use anyautomated means, including, without limitation, agents, robots, scripts or spiders, to access theAPI or bypass the Microsoft tools or services to interfere or attempt to interfere with the properworking of adCenter or the API, (ii) take any action that imposes an unreasonably ordisproportionately large burden on Microsoft’s infrastructure, including the API, as determined byMicrosoft at its reasonable discretion; or (iii) otherwise engage in any other unlawful orfraudulent practices in connection with Your use of the API.c. Protecting API Credentials. You must protect the confidentiality and security of Your APICredentials. This includes (i) not sharing or disclosing Your API Credentials to any third party;(ii) notifying Microsoft immediately if Your API Credentials are stolen or leaked; and (iii) usingreasonable technical means to secure the API Credentials within Your software or service, includingnot storing the API Credentials in plain text in a configuration file, in clear text as appended toa URL address, or in any other means that enables easy, unencrypted access to the API Credentials.d. Protecting adCenter Account Credentials. You must also take reasonable precautions to protectthe confidentiality and security of account credentials (e.g., user names and passwords) associatedwith adCenter Accounts that You manage using the API. This includes not storing such credentials inplain text in a configuration file, in clear text as appended to a URL address, or in any othermeans that enables easy, unencrypted access to such credentials.e. Authorized Transactions Only. You may use the API to conduct transactions associated with aparticular adCenter Account only if the transaction has been authorized by the owner of theadCenter Account. By using the API to conduct transactions associated with a particular adCenterAccount you represent and warrant that you have authorization of the owner of the adCenter Account.6. DATA USE. Notwithstanding anything to the contrary in this Agreement or the applicable Microsoftprivacy policy, all data and information that Microsoft gathers or receives in connection withproviding the advertising services and products under this Agreement, , may be shared with selectedthird parties as necessary or required in order to provide the services to You under thisAgreement.7. YOUR RESPONSIBILITY FOR ADVERTISEMENTS AND YOUR WEBSITE.a. Keyword Responsibility. You are responsible for Your Content, Advertisements (including anyassociated Keywords that You select) and the content of any website linked to by YourAdvertisements. Without limiting the generality of the foregoing, You hereby acknowledge thatMicrosoft is not responsible for the content or maintenance of Your website(s), or websites ownedor operated by any third party (including, without limitation, other advertisers), nor is Microsoftresponsible for order entry, fulfillment, payment processing, shipping, cancellations, returns orcustomer service concerning orders placed on Your website(s) or websites owned or operated by anythird party (including, without limitation, other advertisers).b. Campaign Content. Microsoft may assist You with Your adCenter experience, including suggestionsfor certain potential keyword selections, advertising copy, budget recommendations or otherelements of an advertising campaign (collectively, the “Campaign Content”). You may provideMicrosoft certain information about Your products or services, keyword selections, anticipatedbudget and other information reasonably requested by Microsoft to assist You in determining theCampaign Content for advertising through Microsoft AdCenter (collectively, the “Advertiser-ProvidedMaterials”). You may authorize Microsoft to access Your adCenter account to place YourAdvertisements on Microsoft adCenter on Your behalf. If You authorize Microsoft to place YourAdvertisements on Your behalf, then You are deemed to have approved all placement of YourAdvertisements unless You provide to Microsoft contemporaneous documentary evidence showing thatYou disapproved such placements. You hereby grant Microsoft a royalty-free, non-exclusive,non-transferable license in perpetuity to use, reproduce and modify the Advertiser-ProvidedMaterials for the purpose of providing such services to You. You are solely responsible forreviewing any suggested Campaign Content and determining its truthfulness, accuracy, completeness,lawfulness and appropriateness. Without limiting the generality of the foregoing, You are solelyresponsible for determining whether any keywords or advertising text contained in the CampaignContent violate any trademark or other rights of any third party. The decision to use any of theCampaign
 

 
Content in a campaign within Microsoft AdCenter or on any other media outlet is solely Yours.c. Representations and Warranties. You represent, covenant and warrant to Microsoft that: (i) theContent is accurate, complete and current, and You are fully authorized to publish the Content andauthorize Microsoft to publish the Advertisements containing the Content throughout the MicrosoftAdvertising Network; (ii) the Content, and any website linked to from Your Advertisements in eachcase in the Microsoft Advertising Network market or jurisdiction selected by You for display ofYour Advertisements (a) complies with all applicable laws and regulations, (b) does not infringe,misappropriate or otherwise violate any third party intellectual property right, (c) does notbreach the rights of any person or entity, including, without limitation, rights of publicity orprivacy, and is not defamatory, and (d) does not and will not result in consumer fraud (includingbeing false or misleading), product liability, tort, breach of contract, injury, damage or harm ofany kind to any person or entity; (iii) in the Microsoft Advertising Network market or jurisdictionselected by You for display of Your Advertisements, the Keywords that You select, when used inconnection with Your Advertisements, do not infringe upon or otherwise violate the trademarks orother rights of any third party; (iv) You will not use, and will not authorize any third party touse, any automated means, including, without limitation, agents, robots, scripts or spiders, toaccess Your adCenter Program account, to monitor or copy Microsoft Advertising Network or thecontent contained therein, or bypass Microsoft tools or services to interfere or attempt tointerfere with the proper working of Microsoft or the Microsoft Advertising Network and will notgenerate automated or fraudulent impressions or clicks of advertisements on the MicrosoftAdvertising Network; (v) You are a business, not a consumer; and (vi) You will not take any actionthat imposes an unreasonably or disproportionately large burden on Microsoft infrastructure,including Microsoft adCenter, as determined by Microsoft at its discretion.d. Indemnity. You will indemnify, defend and hold Microsoft and its affiliates, agents andemployees harmless from and against any and all loss, liability, and expense (including reasonableattorneys’ fees) suffered or incurred by reason of any claims, proceedings or suits based on orarising out of the Content, Your Advertisements, Your website, Advertiser Provided Materials,Campaign Content, Your use of the API, or any breach by You of any representation or warranty underthis agreement. Microsoft will have the right to participate in any defense under this Section 7(d)with counsel it selects, and You will not agree to any settlement that imposes any obligation orliability on Microsoft without the prior written consent of Microsoft.8. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THEADCENTER PROGRAM, THE ADCENTER SITE, THE MICROSOFT ADVERTISING NETWORK AND ANY ASSOCIATED PRODUCTSOR SERVICES (INCLUDING THE SUPPLEMENTAL PROGRAMS SET FORTH IN SECTION 7(b) ABOVE) IS AT YOUR OWNRISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ADCENTER PROGRAM, THE ADCENTER SITE, THE MICROSOFTADVERTISING NETWORK AND ANY ASSOCIATED PRODUCTS OR SERVICES AND ANY MATERIALS OR OTHER SERVICESPROVIDED BY OR ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALLDEFECTS, AND MICROSOFT HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS ORIMPLIED, INCLUDING REPRESENTATIONS AS TO THE QUALITY OF THE ADCENTER PROGRAM, THE ADCENTER SITE,THE MICROSOFT ADVERTISING NETWORK OR ANY ASSOCIATED PRODUCTS OR SERVICES, THE EFFECT THEADVERTISEMENTS MAY HAVE ON ADVERTISER’S BUSINESS AND THE OPERABILITY OF ANY TOOLS USED BYADVERTISER OR AGENCY TO ACCESS SUCH PARTY’S MICROSOFT ADCENTER ACCOUNT. EXCEPT FOR AMOUNTS OWINGPURSUANT TO SECTION 7(d), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSTPROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION). MICROSOFT WILL HAVENO LIABILITY HEREUNDER BY REASON OF ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS DUETO FORCE MAJEURE, AND WILL NOT BE LIABLE TO ADVERTISER FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLYPAID TO MICROSOFT HEREUNDER.9. TERMINATION. If You are dissatisfied with any aspect of an adCenter Program(s), Your sole andexclusive remedy is to cease participating in the adCenter Program and terminate this agreementupon written notice to Microsoft. You and/or Microsoft may terminate the agreement and/or Yourparticipation in any adCenter Program (including Your API access and API Credentials), at any time,for any reason or for no reason. Notwithstanding anything contained in the agreement to thecontrary, Microsoft may, at its sole discretion, terminate or suspend Your account, and/ordiscontinue or suspend Your participation in all or part of any adCenter Program. Reasons for aMicrosoft determination to so terminate, suspend or discontinue Your account or participation mayinclude, without limitation, Microsoft determination that You have violated the agreement or otherpolicies or guidelines of Microsoft applicable to the adCenter Program, the Microsoft belief thatYour conduct may be harmful to users or other advertisers, or Microsoft determination at itsdiscretion that Your conduct is unlawful or likely to create legal liability for Microsoft. Allsuch decisions made by Microsoft will be final and Microsoft shall have no liability regarding suchdecisions. Upon termination, suspension or discontinuation of any adCenter Program or Yourparticipation therein: (a) all outstanding payment obligations incurred under such adCenter Programwill become immediately due and payable; and (b) if You are not managing account termination onlinethrough Microsoft adCenter, You will be responsible for all Click Fees incurred through the dateMicrosoft receives Your termination notice plus one (1) business day thereafter. This Section andSections 1, 4, 6, 7, 8, 10, and 11shall survive termination, along with any other provisions thatmight reasonably be deemed to survive such termination.10. NOTICES. Microsoft may give notices to You, at the option of Microsoft, by posting on anyportion of the adCenter Site, by electronic mail to the email address provided by You to Microsoftor by mail to the postal address provided by You to Microsoft. Such notices are effective 48 hoursafter such notice is posted or delivered. It is Your responsibility to ensure that Your emailaddress and any other contact information You provide to Microsoft is updated and correct. Allnotices to Microsoft shall be sent via recognized overnight courier or certified mail, returnreceipt requested, to the Microsoft adCenter contract notice contacts.11. MISCELLANEOUS. This agreement is governed by Nevada law, without regard to its conflicts of lawrules. You and agency (if applicable) (a) irrevocably submit to venue and personal jurisdiction inthe federal and state courts in King County, Washington, for any dispute arising out of or relatedto this agreement and waive all objections to jurisdiction and venue of such courts, and (b) agreenot to commence or prosecute any such dispute other than in such courts. The prevailing party isentitled to recover its costs, including reasonable attorneys’ fees in any action or suit toenforce any right or remedy under this agreement or to interpret any provision of this agreement.You may not assign or otherwise dispose of this agreement without the prior written approval ofMicrosoft. This agreement binds and
 

 
inures to the benefit of the parties’ successors and lawful assigns. This agreement constitutes theentire agreement between the parties with respect to the subject matter hereof and supersedes allprior and contemporaneous agreements or communications. If any court of competent jurisdictiondetermines that any provision of this agreement is illegal, invalid or unenforceable, the remainingprovisions will remain in full force and effect.