Terms and Conditions Article

SEARCH SUBMIT EXPRESS TERMS AND CONDITIONS

1. INTRODUCTION AND CERTAIN DEFINITIONS. Overture Services, Inc. ("Overture") is a wholly owned subsidiary of Yahoo! Inc. ("Yahoo" or Overture’s "Parent") and operates as a separate business entity, however Overtures’ products and services carry the Yahoo brand. Overture provides you, directly or indirectly through third-party service providers (each a "Third-Party Service Provider"), the Search Submit Express services subject to your acceptance of and compliance with these terms and conditions (the "Terms and Conditions") and the applicable Overture Search Submit Subscription(s) that you complete using the online sign-up process at http://www.prioritysubmit.com (the "Search Submit Interface"), including any renewal Subscription (collectively, the "Subscription(s)"), which specifically describes the fees to be paid by you (the "Advertiser") to Overture. By enrolling as a Advertiser, you agree to be bound by these Terms and Conditions and the terms of any Subscription (collectively, the "Agreement"). In this Agreement, "Affiliate" means, as to any person or entity, an entity or person that directly or indirectly (e.g. through one or more tiers of ownership) controls, is controlled by or is under common control with that person or entity, and the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities or a written voting rights agreement. The "Search Submit Index" means a database(s) of documents and information, including Web pages, maintained, controlled, and/or marketed by Overture, (and/or its Parent and/or Affiliates), and/or any part of the foregoing, as the same may be modified, changed or enhanced, that may be made available by Overture (and/or its Parent and/or Affiliates) and/or third parties authorized by Overture as a link from, an add-on service to, or otherwise in connection with, Web sites, applications and/or emails ( "Third Party Products") that they control (the "Search Submit Distribution Network"), and may be branded using third parties’ names or any combination of Overture’s and third parties’ names (including Overture’s Parent and/or Affiliates). "Advertiser Information" means all content and data, including URLs and other information, submitted or otherwise provided by you, and all content linked to therefrom, for inclusion in the Search Submit Index as further described herein. "Listings" mean the listings generated by Overture that link users to the Advertiser Information you submit or provide to Overture.

2. LICENSE. By submitting Advertiser Information to Overture for inclusion in the Search Submit Index, you grant Overture, its licensees, Third-Party Service Providers and any entities in the Search Submit Distribution Network, a royalty-free, worldwide right and license to use any or all parts of the Advertiser Information and Listings, including, creating Listings from the Advertiser Information; publicly performing, publicly displaying and distributing them; copying and manipulating it as reasonably necessary for such performance, display and distribution; modifying or using them commercially and authorizing others to do so; archiving and storing the Advertiser Information and Listings in the Search Submit Index; and/or providing data obtained hereunder to each other and using such data in connection with the Advertiser Information and Listings and the Search Submit Index. You also grant Overture, the Search Submit Distribution Network, and Overture’s licensees and Third-Party Service Providers a royalty-free, worldwide right and license to access, index, cache, and display (in connection with your Advertiser Information and Listings) the Web site(s) to which your Advertiser Information and Listings link, or any portion thereof, including by any automated means including web spiders or crawlers. in connection with your Advertiser Information, including the right to create and display copies of any text, graphics, images, audio, video, and all other material included 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. Except for the rights expressly granted herein, Overture reserves all right, title and interest in and to the Search Submit Index, the Editorial Guidelines (as defined below), other materials provided by Overture, and all intellectual property relating to the foregoing, and disclaims all implied licenses. This Agreement does not create a bailment of your Advertiser Information and neither Overture nor any Overture Entity (as defined below) shall be deemed a carrier, bailee or warehouseman of any Advertiser Information.

3. ADVERTISER INFORMATION

a. Subject Matter. You represent, warrant and covenant that: (i) all Advertiser Information you provide in connection with this Agreement and on your Web site is, and will be updated to remain current and accurate, (ii) the Web site to which any Listing links will look substantially the same to all end users regardless of the end users’ location, and (iii) your Web site does not contain any Overture-owned or licensed content, including any Overture listings, except pursuant to a separate signed agreement with Overture. You may change your Advertiser Information up to the maximum number of times specified by Overture in your Subscription. Overture reserves the right to classify, truncate, edit, refuse, reject or remove any Listing and refuse, reject or remove your Advertiser Information at its discretion at any time. Overture does not guarantee that your Advertiser Information or Listings will be placed in, or available through, the Search Submit Index or Search Submit Distribution Network, nor does Overture guarantee that such Listings will appear in a particular position or rank, and Overture reserves the right to exclude, discontinue to place, and/or remove your Advertiser Information and/or Listings at any time for any reason. In addition, Overture reserves the right to migrate you to another Overture program in Overture’s sole discretion, provided that you are not obligated to participate in such program. Final decision as to inclusion, relevancy, placement, etc. will be at Overture’s sole discretion.

b. Submission; Format. You will provide your Advertiser Information to Overture via the Search Submit Interface in accordance with the terms of this Agreement and Overture’s editorial guidelines for the Search Submit Index that are posted on Overture’s website (the "Editorial Guidelines"), as each may be amended from time to time without notice. Advertiser Information may be subject to different and/or additional requirements as determined by Overture in its sole discretion. Noncompliant Advertiser Information may be rejected.

4. ACCESS For purposes of this Agreement, all Web pages that owned, operated or hosted by, or on behalf of, or for Overture, are referred to herein as the "Overture Web Sites." During the Term, you are authorized to access and use the Overture Web Sites and the content therein and data obtained therefrom solely for internal use to manage your advertising account(s) for which such content or data directly relates and you will not disseminate any of this information to third parties. You agree that you will not use any automated means, including agents, robots, scripts, or spiders, to access your account with Overture or to monitor or copy the Overture Web Sites 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 Sites contain robot exclusion headers and you agree that you will not bypass Overture’s robot exclusion headers (including using any device, software or routine to accomplish that goal), or to interfere or attempt to interfere with the proper working of the Overture Web Sites.

5. YOUR SITE You agree that Overture is not responsible for the content, maintenance, or operation of your Web site(s), or Web sites owned or operated by any third party.

6. FEES

a. Fees. You agreed to pay Overture the fees set forth in your Subscription. Billing by Overture and/or its Third Party Service Provider will commence on the Start Date set forth in the initial Subscription. In addition, Overture may charge you fees for any changes you may request or make to your URLs. Revenue generated on the Search Submit Distribution Network will accrue to and belong solely to Overture.

b. Payment. You authorize Overture to charge your credit card for the fees set forth in your Subscription.. You represent, warrant and covenant that all information you provide to Overture, including your credit card information, will be accurate, complete and current and you agree to promptly notify Overture if your credit card is canceled or if you become aware of a potential breach of security, such as the unauthorized disclosure of your user name or password. If you fail to provide Overture with any of the foregoing information, you agree that Overture may continue charging your account for your use of the Search Submit Express services unless you have terminated the Agreement. If, for any reason: payment cannot be charged to your credit card or you do not make timely payment hereunder, Overture reserves the right to either suspend or, upon ten (10) days’ notice, terminate your account with Overture. Suspension or termination includes but is not limited to, deletion of your Advertiser Information and Listings from the Search Submit Index and/or Search Submit Distribution Network. You must submit any claims or disputes 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.

c. Taxes; Costs. All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that my be assessed by any jurisdiction. In the event that withholding taxes or any other similar taxes are imposed by any jurisdiction on the transactions pursuant to this Agreement, you shall pay such taxes and in such amounts as are necessary to ensure that Overture receives the full amount charged to you without offset or deduction. You shall promptly furnish Overture the applicable receipts and/or certificates with respect to such remittances as soon as reasonably practicable. Each party is responsible for all costs associated with the setup, maintenance and other performance obligations of such party under this Agreement

7. TERM; TERMINATION

a. Term. The term of the Agreement will commence on the Effective Date set forth in the initial Subscription and will continue in effect until the End Date specified therein or in any renewal Subscription(s), unless earlier terminated by either party in accordance with the terms of this Agreement (the "Term"). These Terms and Conditions will apply to all Search Submit Subscriptions executed between the parties.

b. Termination; Default. Either party may terminate this Agreement, with or without cause, upon 30 days prior written notice to the other party. In addition, if either party materially defaults in the performance of any provision contained in this Agreement, and such default is not cured within 10 days after receipt of written notice of such breach, then the non-defaulting party may immediately terminate this Agreement upon written notice to the defaulting party without additional liability for such termination. For the purposes of this section, the term "material default" will include, without limitation, the other party’s insolvency, general assignment for the benefit of creditors, filing of a voluntary petition of bankruptcy, suffering or permitting the appointment of a receiver for its business or assets, becoming subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or liquidating, whether voluntarily or otherwise, and your failure to make a payment to Overture hereunder when due.

c. Effects of Termination. Upon termination of this Agreement, the licenses granted hereunder will terminate immediately, except that Advertiser Information and Listings may remain in the Search Submit Index for up to 30 days following termination, and Overture may continue to use previously delivered Advertiser Information and Listings and data collected hereunder for internal (including archival) purposes, and all related licenses granted by you hereunder shall remain in effect therefor. Notwithstanding the foregoing, Overture shall have no obligation to remove any Advertiser Information or Listings that are otherwise publicly available through the Internet or other publicly accessible medium. Upon termination, all outstanding payment obligations will become immediately due and payable, and no new payment obligations will accrue. The terms of this sub-section as well as Sections 5, 6, 7, 8, 9, 10, 11 and 12 will survive any termination of this Agreement. You will receive a refund only for amounts that have been prepaid but not yet accrued as of the effective date of termination.

8. REPRESENTATIONS AND WARRANTIES

a. Representations and Warranties. You represent, warrant and covenant that (i) you have sufficient authority to enter into this Agreement; (ii) you are a business, not a consumer, and that your use of Overture’s services is solely for lawful commercial and business purposes; (iii) you have the necessary rights to provide all Advertiser Information for use as described in this Agreement and to authorize Overture to generate the Listings, in each case for use as described herein, and that all such Information and all claims, statements, products and services contained or referenced therein and in the Web site to which it links: (A) do not violate any law, statute, ordinance, treaty or regulation or Overture policy or guideline; (B) do not infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (C) do not breach any duty toward or rights of any person or entity, including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (D) are not false or misleading; (E) are not defamatory, libelous, slanderous or threatening; and (F) will be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. You agree that Overture shall not have any liability for any changes that you make to Advertiser Information or Listings that may have been suggested by Overture; and (iv) you will not engage in any form of spamming or other impermissible marketing activities through any Overture program or service, including complying with all applicable laws such as the CAN-SPAM Act of 2003.

b. Warranty Disclaimer. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SEARCH SUBMIT INDEX (INCLUDING THE SEARCH SUBMIT DISTRIBUTION NETWORK) IS AT YOUR OWN RISK. THE SEARCH SUBMIT INDEX AND OVERTURE WEB SITES (INCLUDING INFORMATION OBTAINED THEREFROM) ARE AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. OVERTURE HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL OVERTURE ENTITIES ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

9. LIMITATION OF LIABILITY. ANY LIABILITY OF OVERTURE AND THE OVERTURE ENTITIES, IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, INCLUDING BREACH OF WARRANTY, SHALL BE STRICTLY LIMITED TO THE AMOUNT ALREADY PAID BY YOU TO OVERTURE PURSUANT TO THIS AGREEMENT IN THE PRIOR SIX MONTH PERIOD. IN NO EVENT SHALL OVERTURE OR THE OVERTURE ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT. 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 THIS AGREEMENT.

10. INDEMNITY. You agree to indemnify and hold harmless Overture and its Affiliates and its and their officers, directors, licensors, partners, licensees, consultants, contractors, agents, attorneys, employees, third party service providers and third parties authorized by Overture to make your Advertiser Information and Listings available in connection with third party Web sites, content, applications and/or e-mails ("Third Party Products"), and their respective officers, directors, agents, Affiliates, and employees (each, an "Overture Entity" and collectively, the "Overture Entities") from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees (collectively, “Claims”), that actually or allegedly result from your use of any Overture service or Overture Web Site, your Web site, or your breach of any terms or representations, warranties, or covenants contained in the Agreement. You agree to be solely responsible for defending any Claim against or suffered by Overture and/or any Overture Entity, subject to Overture's and/or any Overture Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all Claims against Overture, and/or any Overture Entity provided that you will not agree to any settlement that imposes any obligation or liability on Overture and/or an Overture Entity without Overture's prior written consent.

11. CONFIDENTIALITY. "Confidential Information" means any information disclosed to you by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession. Neither party shall at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to its employees, agents, and third party service providers who have a legitimate need to know such information and are bound by similar confidentiality and non-use restrictions and, in the case of Overture, to Yahoo and its Affiliates), or (b) use, reproduce or otherwise copy any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party. The parties 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 remain the disclosing party’s property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon the disclosing party’s written request. Nothing contained in the Agreement will prevent Overture from complying with privacy laws and regulations, and if there is any conflict between the Agreement and the terms of the applicable Overture and/or Yahoo Privacy Policy ("Privacy Policy"), the Agreement shall control. Notwithstanding anything to the contrary in the applicable Privacy Policy or this Agreement, Overture, Yahoo and its and their Affiliates may share and use information described in the applicable Privacy Policy with each other. Overture may disclose Confidential Information in connection with subpoenas, court orders, other legal process, or as otherwise required by law, and/or if we believe it is necessary to share information in order to investigate, prevent, or take action regarding suspected violations of law and/or this Agreement, situations involving potential threats to the physical safety of any person, or to establish or exercise our legal rights or defend against legal claims. You may disclose Confidential Information if required by law to disclose the Confidential Information, provided that you give Overture prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in this Agreement, all data and information gathered or received by Overture in connection with providing the services under this Agreement may be shared with and used by Yahoo and/or its Affiliates.

12. GENERAL PROVISIONS. You agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to this Agreement or the use of the Search Submit Index shall be bound and shall abide by this Agreement. You may obtain certain information and reports about your Search Submit account at http://www.prioritysubmit.com. All Advertiser service issues shall be directed via e-mail to sales@prioritysubmit.com. Overture may give general notices to you by posting on http://www.prioritysubmit.com or any one of Overture's Web sites or by electronic mail to the e-mail 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. All notices to Overture shall be sent via recognized overnight courier or certified mail, return receipt requested, to: Chief Legal Officer, Overture Services, Inc., 74 N. Pasadena Ave., 3rd Floor, Pasadena, CA 91103. All other notices, requests and other communications hereunder will be in writing and will be delivered in person, or sent by certified mail, return receipt requested, overnight courier service, or by facsimile to the address or facsimile number of the parties set forth on the Subscription, or to such other addresses or numbers as may be provided in writing by the parties. Notice will be effective on the date of delivery (if delivered in person) or else on the date set forth on the return receipt, delivery confirmation or equivalent or facsimile confirmation. 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 its reasonable control. You may not assign or transfer this Agreement, or sublicense, assign or delegate any right or duty under the Agreement, including access to the Overture Web Sites or any information or data obtained therefrom, without Overture’s prior written consent. Any assignment or attempted assignment in violation of this Section shall be void and of no force and effect. Overture and its subsequent assignees may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties, under this Agreement to any party. The failure of either party at any time to require performance by the other party of any provision hereof shall in no way affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such provisions to persons or circumstances as to which it is not held to be invalid or unenforceable, shall not be affected thereby, and each provision shall be valid and be enforced to the fullest extent permitted by law. The parties are independent contractors. Nothing in this Agreement should be construed to create, evidence, or imply any agency, partnership, or joint venture between the parties. Neither party shall have any right, power, or authority to create any obligation or responsibility on behalf of the other. This Agreement shall be governed by, and construed in accordance with 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, California or otherwise designated by Overture. 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. This Agreement constitutes the entire agreement and understanding between the parties regarding the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral, between you and Overture regarding the subject matter contained herein.. Overture may change this Agreement and/or the applicable Privacy Policy (as posted on or linked from an Overture Web Site) at any time upon notice published on any one of the Overture Web Sites or by e-mail notification to you. Any use by you, your Affiliates, agents, representatives, employees, or any person or entity acting on your behalf, of the Search Submit Index or any of the Overture Web Sites after such notice shall be deemed to be continued acceptance of this Agreement and Privacy Policy, including any amendments and modifications thereto. Overture reserves the right to discontinue offering, and/or modify, any of its services and/or Overture Web Sites at any time. Except as otherwise specified by Overture, you agree that you will direct all communications relating to the Search Submit Express service and your participation therein directly to Overture and not to any other entity. You understand and agree that services and/or obligations to be performed hereunder by Overture may be performed by Overture’s Parent and/or its Affiliates and references in this Agreement to Overture may alternately or additionally refer to Overture’s Parent and/or its Affiliates. The organization, specifications, structure or appearance of any Overture or Yahoo property or any page where your information (including listings) may be displayed may be redesigned or modified at any time. Terms used but not defined herein shall have the meanings given to such terms in the Subscription.

These Terms and Conditions were last revised on April 1, 2005