Last Updated – July 2014
Bing Ads Terms and Conditions

IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES, SECTION 11 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH MICROSOFT. PLEASE READ IT. THESE TERMS AND CONDITIONS APPLY TO BING ADS AND BING ADS EXPRESS CUSTOMERS, WITH THE EXCEPTION OF SECTIONS RELATIVE TO CONTENT (Section 19) AND PAYMENT (Section 20), WHICH APPLY TO BING ADS EXPRESS CUSTOMERS ONLY.

1. INTRODUCTION. This is an agreement between you ("Advertiser" or "You") and Microsoft Online, Inc. located at 6100 Neil Road, Reno, NV 89511 ("Microsoft"). If You are procuring these services from India, then Your agreement will be with Microsoft Corporation (India) Private Limited (with its registered office at F-40, N.D.S.E – I, New Delhi-110049). If You are procuring services from Taiwan, then Your agreement will be with Microsoft Taiwan Corporation (with its registered office at 8F, No.7, Sungren Rd. Xinyi Dist., Taipei City 11073 Taiwan). If You are procuring services from Brazil, then Your agreement will be with Microsoft do Brasi Importação e Comércio de Software e Video Games Ltda., enrolled with the CNPJ under No. 04.712.500/0001-07, Address: Av. Bernardino de Campos, 98, Mezanino Sala 08, CEP 04004-040 Sao Paulo SP Brasil.

This agreement applies to Your participation in the Bing Ads Express program (“Bing Ads Express”) and/or the Bing Ads online advertising program (collectively, the "Bing Ads Program"). No other terms of any sort appearing in any other communications from You to Microsoft in connection with the Bing Ads Program services alter or supplement this agreement. You represent and warrant that You are authorized to enter into this agreement and act on behalf of any third party for which You facilitate the Bing Ads Program, and that Your use of the Bing Ads Program is for commercial purposes only. Microsoft may change this agreement at any time upon notice to You in accordance with the provisions of Section 13. Your continued participation in the Bing Ads Program after any such notice will signify Your acceptance of such change.

2. BING ADS. Subject to Your compliance with this agreement, and such other rules and procedures governing Your participation in the Bing Ads Program as Microsoft may publish from time to time, which include but are not limited to those rules available at http://advertise.bingads.microsoft.com, Microsoft grants You a limited, non-exclusive, non-transferable license to access the Bing Ads Program through the Bing Ads website, currently located at http://bingads.microsoft.com; the Bing Ads Express website, currently located at http://advertise.bingads.microsoft.com/en-us/bing-ads-express;and certain related websites (collectively, "Bing Ads Site")and the Bing Ads application programming interface (“API”). You may access the Bing Ads Site and the API solely to manage your Bing Ads Program account, including to submit bids for the ability to display advertisements ("Advertisements") in response to certain keywords or other matching criteria ("Keywords") on the network of advertising channels operated by Microsoft and the Microsoft network of participating websites and other distribution outlets (collectively, "Yahoo! Bing Network"). You will protect Your passwords and other credentials associated with Your account(s) and take full responsibility for any use of the account(s) under Your password. Microsoft reserves all of its (and its Affiliates’) intellectual property rights in the Bing Ads Program, the Bing Ads Site, the API, and any improvements, enhancements or modifications thereto. The rights to this intellectual property will not be transferred to You or any other person under this Agreement.

3. CONTENT. Advertisements may include, at Microsoft’s discretion, text, graphics, a listing title, a listing description, or other features. You may be able to opt-in or opt-out of some of these features. You will provide Microsoft with text, logos, images, URLs and other content ("Content") for the Advertisements. The Content, the Advertisements, and any website to which such Advertisements link will comply with the published requirements for the Bing Ads Program (currently available at http://bingads.microsoft.com) including its trademark policies, editorial guidelines and creative specifications as well as all applicable laws, rules, regulations, and guidelines. You will ensure that the Content does not contain legally prohibited or banned objects. You grant Microsoft and its Affiliates a nonexclusive, royalty-free, worldwide right and license to reproduce, publicly perform, display, distribute, resize or edit the Content for the purpose of providing services to You in connection with this agreement and for the purposes of providing search results and related Microsoft services. Your failure to meet applicable time requirements or specifications in connection with the delivery of Content may delay or prevent placement of the Content on the Yahoo! Bing Network and/or Bing and/or related Microsoft services, or cause its removal from the Yahoo! Bing Network and/or Bing and/or related Microsoft services. Microsoft may, at its sole discretion, label any Advertisement as a "sponsored site," "advertisement" or similar designation for clarification purposes.

4. PROHIBITED CONDUCT. Your access to the Bing Ads Program is limited to You and to the rights granted under this agreement. You acknowledge that You will not access or use the Bing Ads Program for any other entity or for any purpose other than as described in this agreement. Without limiting the generality of the foregoing, You will not (and will not authorize any third party to): (i) modify or create any derivative work based on the Bing Ads Program; (ii) reverse engineer, disassemble or decompile any intellectual property in the Bing Ads Program or API or discover or recreate the source code of any software in the Bing Ads Program or API, except as permitted by law notwithstanding any contractual prohibition (and in those cases, You will use the appropriate interoperability and other data if made available by Microsoft); (iii) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Bing Ads Program; (iv) use any automated means, including, without limitation, agents, robots, scripts or spiders, to access the API or bypass Microsoft’s tools or services to interfere or attempt to interfere with the proper working of Bing Ads Site or the API; (v) take any action that imposes an unreasonably or disproportionately large burden on Microsoft’s infrastructure, including the API, as determined by Microsoft in its reasonable discretion; or (vi) otherwise engage in any other unlawful or fraudulent practices in connection with your use of the API or the Bing Ads Program. You will not implement or use technology that prevents a user from using the "Back" button on such user's browser to return to the prior site or any Microsoft site.

5. API USAGE. The API enables programmatic access to the advertiser accounts for the Bing Ads Program ("Bing Ads Accounts"). If You have a single user token, You may use the API only to manage Your own Bing Ads Accounts. If You have a third-party development token, You may use the API to manage Your own Bing Ads Accounts and to develop software or services for use by others to manage their own Bing Ads Accounts. Microsoft reserves the right to discontinue offering the API at any time at its sole discretion. Microsoft may provide You one or more passwords or other credentials for use of the API ("API Credentials"). These API Credentials are separate from the credentials associated with Bing Ads Accounts. You may not use the API to create new Bing Ads Accounts even if the API enables such functionality. You may use the API only to manage existing Bing Ads Accounts. You must protect the confidentiality and security of Your API Credentials. 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 otherwise compromised; and (iii) using reasonable technical means to secure the API Credentials within Your software or service, including not storing the API Credentials in plain text in a configuration file, in clear text as appended to a URL address, or in any other means that enables easy, unencrypted access to the API Credentials. You must also take reasonable precautions to protect the confidentiality and security of account credentials (e.g., user names and passwords) associated with Bing Ads Accounts that You manage using the API. This includes not storing such credentials in plain text in a configuration file, in clear text appended to a URL address, or in any other means that enables easy, unencrypted access to such credentials. You may use the API to conduct transactions associated with a particular Bing Ads Account only if the transaction has been authorized by the owner of the Bing Ads Account. By using the API to conduct transactions associated with a particular Bing Ads Account you represent and warrant that You have authorization of the owner of the Bing Ads Account.

6. PAYMENT AND REPORTING. (For Bing Ads Express, Section 20 BING ADS EXPRESS – PAYMENT AND REPORTING will apply instead of Sections 6.a.-6.g.; Sections 6.h. and 6.i. apply to all Bing Ads Programs)

a. Basis for payment. You agree to pay Microsoft the charges due for your participation in the Bing Ads Program, which Microsoft will compute according to its standard methodology then in effect. The reports available to You on the Bing Ads Site will calculate the charges You owe according to the standard methodology. The reports will be the exclusive standard for billing. It is Your responsibility to review, print and save a copy of each online report and to retain copies for Your records. You may authorize a third party to pay Your Bing Ads Account on Your behalf, but You are responsible for any payment obligations arising out of Your participation in the Bing Ads Program. You may elect to participate in the Bing Ads Program on a Prepay or Postpay basis.

b. Postpay Calculation. If You participate in the Bing Ads Program on a postpay basis, You will have the choice between monthly invoice billing and threshold billing. If You elected monthly invoice billing, subject to credit approval, Microsoft will send You an invoice at the end of Your billing cycle for the amount due, with payment due on the due date in the invoice. If You elected threshold billing, Microsoft will charge your Bing Ads Account whenever You reach Your billing threshold amount or on Your monthly billing date, whichever comes first. You authorize Microsoft to automatically charge Your payment method for the balance due upon reaching threshold amount, or the end of Your billing cycle, whichever occurs first.

c. Prepay Calculation. If You elect to participate in the Bing Ads Program on a prepaid basis, You agree to pay Microsoft a specified amount prior to initiating an advertising campaign(s). You will be asked to set the amount to be charged during creation of a new account or advertising campaign. You may change the prepaid amount to be charged at any time via the Bing Ads Site. However, You may be subject to certain minimum and maximum charge requirements depending on Your location, currency, or payment method, among other things. You will be notified when Your prepaid account reaches a minimum balance threshold, at which time You must make a payment to replenish Your prepaid account, or, if You have elected automatic payments, You authorize us to charge Your payment method to replenish Your prepaid account.

d. Payment Method Selection; Payment Information. You will select an available payment program (i.e., prepaid or postpay) when You enroll in the Bing Ads Program. You will provide to Microsoft all payment information (e.g., credit card, debit or check card number) required for such payment program. You represent and warrant to Microsoft that You are authorized to use the payment method(s) provided to Microsoft, and that all payment information that You provide to Microsoft, including Your card account number, billing address and card expiration date, is true and accurate, and You agree that You will promptly update Microsoft with any changes to such payment information. Your use of the Bing Ads Program constitutes Your authorization for Microsoft to charge Your payment method for any prepaid amounts or any amounts incurred in connection with the Bing Ads Program. Microsoft may submit such charges for payment utilizing the payment information that You supplied and You will pay any such charges. You further authorize Microsoft to use any updated account information regarding Your payment method provided by Your issuing bank or the applicable payment network.

e. Payment Frequency. If You elect automatic payment, You authorize Microsoft to charge Your payment method on an ongoing basis for incurred fees (if any) for postpay accounts, or to replenish Your prepaid account, in accordance with the applicable payment program. Microsoft will suspend the display of Your Advertisements (i) for the remainder of any calendar month once an applicable monthly budget is reached, (ii) if You fail to pay Your invoice by the stated invoice due date, (iii) if Your payment method is rejected (e.g., expired card, insufficient funds), or (iv) on the end date You specify in Your Bing Ads Account. For the avoidance of doubt, Microsoft may resume displaying Your Advertisements on the first day of each subsequent calendar month if You do not specify an end date in Your Bing Ads Account.

f. Revocation of Payment Method. You may revoke at any time Your authorization for Microsoft to automatically charge Your payment method for ongoing fees or other charges by suspending the applicable campaign(s) via the applicable Bing Ads Site, which will be effective no later than the end of the second business day after You suspend a particular campaign. You acknowledge that any revocation of such authorization may require the removal of Your Content from the Yahoo! Bing Network. You further acknowledge that (i) You remain responsible for all fees incurred through the end of the second business day following the date on which You revoke Your authorization, (ii) Microsoft may charge Your payment method for any unpaid amounts at the end of the billing period following the date on which You revoke Your authorization, and (iii) Microsoft will refund any amounts remaining in Your prepaid account balance, subject to application of such funds to any outstanding amounts due by You.

g. Default; Billing Disputes. If You are in default of Your obligations, Microsoft may immediately charge Your payment method for any other amounts owing (e.g., amounts owing on other accounts or campaigns), remove Your Content or any part thereof from the Yahoo! Bing Network, and terminate this agreement in addition to any other rights or remedies Microsoft may have. Removal of the Advertisements will not relieve You of Your obligation to pay fees owing to Microsoft that accrue prior to such removal. You understand that third parties may generate impressions or clicks on Your Advertisements for prohibited or improper purposes, and You accept the risk and related fees of any such impressions and clicks. You must notify Microsoft in writing of any disputed amount within 45 days following the date of an invoice or charge to Your payment method, whichever occurs first, or Your dispute will be waived. You may dispute only amounts You believe resulted from a billing error or fees You did not agree to pay. Following receipt by Microsoft of such written notice, Microsoft will research such inquiry and will notify You of a resolution within a reasonable time, subject to applicable law. Microsoft will resolve such inquiry at its sole discretion, and Microsoft has no obligation to provide a particular remedy to You. Any remedy Microsoft provides will be Your sole and exclusive remedy for such dispute. If You fail to provide Microsoft with timely written notice of the disputed invoice or charge, You remain obligated to pay the full invoiced amount. If Microsoft does not resolve the dispute to Your satisfaction and You wish to pursue it, You must follow the dispute resolution process in Section 11.

h. Taxes. Fees do not include any federal, state, local, municipal, or other governmental taxes, duties, levies, fees, excises, or tariffs. Neither of us is liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes (including but not limited to net income or gross receipts taxes, franchise taxes, property taxes, and/or taxes arising from sales between a party and its subscribers or customers) will be the financial responsibility of the party who is obligated by operation of law to pay such tax. You will pay Microsoft any sales, use or value added taxes that are owed by You solely as a result of entering into this agreement and which are required to be collected under applicable law. Microsoft may provide You with a valid exemption certificate in which case You will not collect the taxes covered by such certificate. You agree to indemnify, defend and hold Microsoft and its Affiliates harmless from any taxes (including sales or use taxes) or claims, causes of action, costs (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever related to Your taxes. If any taxes are required to be withheld on payments made by You to Microsoft, You may deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority. You will secure and deliver to Microsoft an official receipt for those withholdings and other documents reasonably requested by Microsoft in order to claim a foreign tax credit or refund. You will use reasonable efforts to ensure that any taxes withheld are minimized to the extent possible under applicable law. If You are located in Argentina and if the stamp tax is deemed applicable, for the avoidance of doubt, You will pay the corresponding stamp tax related to this agreement and then Microsoft will reimburse You the amount You paid for the stamp tax. After the stamp tax has been paid, You will submit to Microsoft a copy of the acknowledgement of the payment made. If You are located in Australia or New Zealand, the fees are exclusive of goods and services tax, value added tax, sales, or like taxes ('GST'). If GST is applicable to any transactions made under this agreement, in addition to the fees, You will pay an additional amount to Microsoft equal to the GST for which Microsoft is liable in respect of the transaction. If you are located in Brazil, the parties are not liable for any of the taxes of the other party that the other party is legally obligated to pay and which are incurred or arise in connection with or related to the transactions contemplated under this agreement, and all such taxes (including but not limited to net income or gross receipts taxes, franchise taxes, property taxes, and/or taxes arising from sales between a party and its subscribers or customers) shall be the financial responsibility of the party who is obligated by operation of law to pay such tax.

i. Change in Bing Ads Pricing. Microsoft may, from time to time, change applicable Bing Ads price(s), including but not limited to the minimum cost of Advertisements, but Microsoft will notify You before we do. Your continued use of Bing Ads following notice of any price change will constitute Your acceptance of such price change(s) and Your authorization for Microsoft to continue charging Your payment method for any prepaid amounts or any amounts incurred in connection with the Bing Ads Program. If You do not agree to such price changes, then You must revoke Your payment authorization and/or cancel Your Bing Ads Account or campaign within 30 days, subject to the terms of revocation and cancellation set forth in this agreement.

7. DATA USE. Notwithstanding anything to the contrary in this agreement or the applicable Microsoft privacy policy, all data and information that Microsoft gathers or receives in connection with providing the advertising services and products under this agreement may be shared with selected third parties, including with Yahoo!, our Yahoo! Bing Network partner. You will maintain a prominent link to an online privacy policy on each site accessible from any Content or Advertisements, and will ensure that this policy complies with then-current editorial guidelines, laws, rules, and regulations.

8. YOUR RESPONSIBILITY FOR ADVERTISEMENTS AND YOUR WEBSITE.

a. Keyword Responsibility. You are responsible for Your Content, Advertisements (including any associated Keywords that You select) and the content of any website linked to by Your Advertisements. Without limiting the generality of the foregoing, You acknowledge that Microsoft is not responsible for the content or maintenance of Your website(s), or websites owned or operated by any third party (including, without limitation, other advertisers), nor is Microsoft responsible for order entry, fulfillment, payment processing, shipping, cancellations, returns or customer service concerning orders placed on Your website(s) or websites owned or operated by any third party (including, without limitation, other advertisers).

b. Campaign Content. Microsoft may assist You with Your Bing Ads experience, including campaign optimization, selecting or suggesting Keywords, advertising copy, budget recommendations or other elements of an advertising campaign (collectively, the "Campaign Content"). You may provide Microsoft certain information about Your products or services, Keyword selections, anticipated budget and other information reasonably requested by Microsoft to assist You in advertising through Bing Ads (collectively, the "Advertiser-Provided Materials"). You may authorize Microsoft to access Your Bing Ads Account to place Your Advertisements on Bing Ads on Your behalf. If You authorize Microsoft to place Your Advertisements on Your behalf, then You are deemed to have approved all placements of Your Advertisements unless You provide to Microsoft evidence showing Your disapproval of such placements at the time of or prior to such placements. You grant Microsoft a royalty-free, non-exclusive, non-transferable license in perpetuity to use, reproduce and modify the Advertiser-Provided Materials and the Campaign Content for the purpose of providing services under this agreement to You and for the purposes of providing search results and related Microsoft services, including but not limited to, Bing, Skype, Xbox and in display advertising. You are solely responsible for Your Campaign Content and the truthfulness, accuracy, completeness, lawfulness and appropriateness of the Campaign Content and Advertiser-Provided Materials. Without limiting the generality of the foregoing, You are solely responsible for determining whether any Keywords or advertising text contained in the Campaign Content violate any trademark or other rights of any third party. The decision to use any of the Campaign Content in a campaign within Bing Ads or on any other media outlet is solely Yours.

c. Representations and Warranties. You represent, covenant and warrant to Microsoft that: (i) the Content is accurate, complete and current, and You are fully authorized to publish the Content and authorize Microsoft to publish the Advertisements containing the Content throughout the Yahoo! Bing Network; (ii) the Content, and any website linked to or from Your Advertisements in each case in the Yahoo! Bing Network market or jurisdiction selected by You for display of Your 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 not breach the rights of any person or entity, including, without limitation, rights of publicity or privacy, and is not defamatory, and (d) does not and will not result in consumer fraud (including being unfair, deceptive, false or misleading), product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iii) in the Yahoo! Bing Network market or jurisdiction selected by You for display of Your Advertisements, the Keywords, when used in connection with Your Advertisements, do not infringe upon or otherwise violate the trademarks or other rights of any third party; (iv) You will not use, and will not authorize any third party to use, any automated means, including, without limitation, agents, robots, scripts or spiders, to access Your Bing Ads Account, to monitor or copy Yahoo! Bing Network or the content contained therein, or bypass Microsoft tools or services to interfere or attempt to interfere with the proper working of Microsoft or the Yahoo! Bing Network and will not generate automated or fraudulent impressions or clicks of advertisements on the Yahoo! Bing Network; (v) You are a business, not a consumer; and (vi) You will not take any action that imposes an unreasonably or disproportionately large burden on Microsoft infrastructure, including Bing Ads, as determined by Microsoft at its sole discretion.

d. Indemnity. You will indemnify, defend and hold Microsoft and its Affiliates, agents and employees harmless from and against any and all loss, liability, and expense (including reasonable attorneys' fees) suffered or incurred by reason of any claims, proceedings or suits related to or arising 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 under this agreement. Microsoft will have the right to participate in any defense under this Section 8(d) with counsel it selects, and You will not agree to any settlement that imposes any obligation or liability on Microsoft without the prior written consent of Microsoft.

9. CONFIDENTIALITY. Neither of us will disclose the other’s Confidential Information to third parties. Each of us will use the other’s Confidential Information only for purposes of this business relationship. Each of us agrees to take reasonable steps to protect the other’s Confidential Information. Each of us may disclose the other’s Confidential Information to our Affiliates, employees and contractors only, so long as the disclosing party remains responsible for any unauthorized use or disclosure. These disclosures may be made only on a need-to-know basis, subject to the obligations of this Section. Each of us may disclose the other’s Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, the receiving party must seek the highest level of protection available and, when possible, give the disclosing party enough prior notice to provide a reasonable chance to seek a protective order for its Confidential Information. The terms of this agreement are each of our Confidential Information. Neither of us may issue any press release relating to this agreement or the relationship established by this agreement without the express prior written consent of the other. If there is any breach or potential breach by either of us of our obligations under this Section, the injured party may seek injunctive and other equitable relief to enforce such obligations. “Confidential Information” means non-public information, know how or trade secrets in any form, that: (a) are designated as being confidential; or (b) a reasonable person knows or reasonably should understand to be confidential. The following types of information, however marked, are not Confidential Information. Information that: (i) is, or becomes, publicly available without a breach of this agreement; (ii) was lawfully known to the receiver of the information without an obligation to keep it confidential; (iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (iv) is independently developed; or (v) is a comment or suggestion one party volunteers about the other’s business, products or services.

10. DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE BING ADS PROGRAM, THE BING ADS SITE, THE YAHOO! BING NETWORK, THE API, AND ANY ASSOCIATED PRODUCTS OR SERVICES (INCLUDING THE SUPPLEMENTAL PROGRAMS SET FORTH IN SECTION 8(b) ABOVE) IS AT YOUR OWN RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE BING ADS PROGRAM, THE BING ADS SITE, THE YAHOO! BING NETWORK, THE API, AND ANY ASSOCIATED PRODUCTS OR SERVICES AND ANY MATERIALS OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF MICROSOFT PURSUANT TO THIS AGREEMENT ARE PROVIDED "AS IS," “WITH ALL FAULTS,” AND “AS AVAILABLE”; AND ANY OTHER REPRESENTATIONS OR WARRANTIES RELATED TO THIS AGREEMENT (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF PRODUCT LIABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, MERCHANTABILITY, AND WORKMANLIKE EFFORT) ARE EXCLUDED, INCLUDING REPRESENTATIONS AS TO THE QUALITY OF THE BING ADS PROGRAM, THE BING ADS SITE, THE YAHOO! BING NETWORK, THE API, OR ANY ASSOCIATED PRODUCTS OR SERVICES, THE EFFECT THE ADVERTISEMENTS MAY HAVE ON YOUR BUSINESS AND THE OPERABILITY OF ANY TOOLS USED BY ADVERTISER OR YOUR AGENCY TO ACCESS SUCH PARTY'S BING ADS ACCOUNT. MICROSOFT IS NOT LIABLE TO YOU FOR (AND YOU WILL NOT SEEK) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING DAMAGES FOR LOSS OF DATA OR PROFITS), FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, EVEN IF YOU HAVE BEEN ADVISED THE DAMAGES ARE POSSIBLE. MICROSOFT WILL NOT BE LIABLE TO YOU FOR DAMAGES IN EXCESS OF AMOUNTS ACTUALLY PAID TO MICROSOFT HEREUNDER.

11. BINDING ARBITRATION AND CLASS ACTION WAIVER IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN THE UNITED STATES. This section applies to any dispute EXCEPT DISPUTES RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, MICROSOFT’S, OR EITHER OF OUR LICENSORS’ INTELLECTUAL PROPERTY RIGHTS. The term “dispute” means any dispute, action, or other controversy between You and Microsoft concerning the Bing Ads Program or services (including their price), the Bing Ads Site, the API, or this agreement, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.

a. Notice of Dispute. In the event of a dispute, You or Microsoft must give the other a Notice of Dispute, which is a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the dispute, and the relief requested. You must send any Notice of Dispute by U.S. Mail to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. A form is available at go.microsoft.com/fwlink/?LinkId=245499. Microsoft will send any Notice of Dispute to You by U.S. Mail to your address if we have it, or otherwise to Your email address. You and Microsoft will attempt to resolve any dispute through informal negotiation within 60 days from the date the Notice of Dispute is sent. After 60 days, You or Microsoft may commence arbitration.

b. Small Claims Court. You may also litigate any dispute in small claims court in the county of Your principal place of business or King County, Washington, if the dispute meets all requirements to be heard in the small claims court. You may litigate in small claims court whether or not You negotiated informally first.

c. Binding Arbitration. If You and Microsoft do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by individual binding arbitration governed by the Federal Arbitration Act (“FAA”). Class arbitrations are not permitted. You are giving up the right to litigate disputes in court before a judge or jury (or participate in court as a party or class member). Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

d. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor Microsoft will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

e. Arbitration Procedure. Any arbitration will be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules. If you are an individual and use the services for personal or household use, or if the value of the dispute is $75,000 or less whether or not You are an individual or how You use the services, its Supplementary Procedures for Consumer-Related Disputes will also apply. For more information, see www.adr.org or call 1-800-778-7879. To commence arbitration, submit the form available at go.microsoft.com/fwlink/?LinkId=245497 to the AAA. You agree to commence arbitration only in the county of Your principal place of business or in King County, Washington. Microsoft agrees to commence arbitration only in the county of Your principal place of business. You may request a telephonic or in-person hearing by following the AAA rules. In a dispute involving $10,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing instead. The arbitrator may award the same damages to You individually as a court could. The arbitrator may award declaratory or injunctive relief only to You individually, and only to the extent required to satisfy your individual claim.

f. Arbitration Procedure, Costs, Fees, and Payments.

i. Disputes Involving $75,000 or Less. Microsoft will promptly reimburse Your filing fees and pay the AAA’s and arbitrator’s fees and expenses. If You reject Microsoft’s last written settlement offer made before the arbitrator was appointed (“Microsoft’s last written offer”), Your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards You more than Microsoft’s last written offer, Microsoft will: (i) pay You the greater of the award or $1,000; (ii) pay twice Your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrues for investigating, preparing, and pursuing Your claim in arbitration. The arbitrator will determine the amount of fees, costs, and expenses unless You and Microsoft agree on them.

ii. Disputes Involving More Than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.

iii. Disputes Involving Any Amount. In any arbitration You commence, Microsoft will seek its AAA or arbitrator’s fees and expenses, or Your filing fees it reimbursed, only if the arbitrator finds the arbitration frivolous or brought for an improper purpose. In any arbitration Microsoft commences, Microsoft will pay all filing, AAA, and arbitrator’s fees and expenses. Microsoft will not seek its attorney’s fees or expenses from You in any arbitration. Fees and expenses are not counted in determining how much a dispute involves.

g. Conflict with AAA Rules. This agreement governs to the extent it conflicts with the AAA’s Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes.

h. Claims or Disputes Must Be Filed Within One Year. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in small claims court (Section 11.b), in an arbitration proceeding (Section 11.c), or in court if Section 11 permits the dispute to be filed in court instead of arbitration. The one-year period begins when the claim or Notice of Dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.

i. Rejecting Future Arbitration Changes. You may reject any change Microsoft makes to Section 11 (other than address changes) by sending us notice within 30 days of the change by U.S. Mail to the address in Section 11.a. If you do, the most recent version of Section 11 before the change You rejected will apply.

j. Severability. If the class action waiver in Section 11.d is found to be illegal or unenforceable as to all or some parts of a dispute, then Section 11 will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of Section 11 is found to be illegal or unenforceable, that provision will be severed with the remainder of Section 11 remaining in full force and effect.

k. Third-Party Beneficiaries. Affiliates of Microsoft are not parties to this agreement but are third-party beneficiaries of Your and Microsoft’s agreement to resolve disputes through informal negotiation and arbitration. In certain countries other than the United States, Affiliates of Microsoft will also have powers to issue invoices under this agreement and collect payments from You, including, without limitation, in court procedures. If Your dispute is with an Affiliate of Microsoft, such Affiliate agrees to do everything Microsoft agrees to do in Section 11, and You agree to do everything regarding the Affiliate that Section 11 requires You to do regarding Microsoft. Mail a Notice of Dispute with an Affiliate to Microsoft Corporation, ATTN: LCA ARBITRATION, One Microsoft Way, Redmond, WA 98052-6399. For purposes of Section 11.k, “Affiliate” means any legal entity that a party owns, that owns a party, or that is under its common ownership. “Ownership” means, for purposes of this definition, control of more than a 50% interest in an entity.

12. TERMINATION. If You are dissatisfied with any aspect of the Bing Ads Program, Your sole and exclusive remedy is to cease participating in the Bing Ads Program and terminate this agreement upon written notice to Microsoft. You or Microsoft may terminate this agreement and Your participation in any Bing Ads Program (including Your API access and API Credentials), at any time, for any reason or for no reason. Notwithstanding anything contained in this agreement to the contrary, Microsoft may, at its sole discretion, terminate or suspend Your account, and/or discontinue or suspend Your participation in all or part of any Bing Ads Program. Reasons for a Microsoft determination to terminate, suspend or discontinue Your account or participation may include, without limitation, Microsoft’s determination that You have violated this agreement or Microsoft’s other rules or guidelines applicable to the Bing Ads Program, Microsoft’s belief that Your conduct may be harmful to users or other advertisers, or Microsoft’s determination at its discretion that Your conduct is unlawful or likely to create legal liability for Microsoft. All such decisions made by Microsoft will be final and Microsoft will have no liability regarding such decisions. Upon termination, suspension or discontinuation of any Bing Ads Program or Your participation therein: (a) all outstanding payment obligations incurred under such Bing Ads Program will become immediately due and payable; (b) any amounts remaining in Your prepaid account balance will be refunded, subject to application of such funds to any outstanding amounts due by You; and (c) if You are not managing account termination online through Bing Ads Site, You will be responsible for all fees incurred through the date Microsoft receives Your termination notice plus one (1) business day thereafter. The terms of this agreement requiring performance (or applying to events that may occur) after termination will survive termination, including those related to indemnity, limitation of liability, confidentiality, class action waiver, and arbitration.

13. NOTICES. This agreement is in electronic form. We have promised to send You certain information in connection with the Bing Ads Program and have the right to send You certain additional information. There may be other information regarding the Bing Ads Program that the law requires Microsoft to send You. Microsoft may send You this information in electronic form. You have the right to withdraw this consent, but if You do, Microsoft may cancel your Bing Ads account. Microsoft may provide required information to You:

• by e-mail at the e-mail address You specified when You signed up for Your Bing Ads Account;
• by access to the Bing Ads Site that will be designated in an e-mail notice sent to You at the time the information is available; or
• by access to the Bing Ads Site that will be generally designated in advance for this purpose.

Notices provided to You via e-mail will be deemed given and received on the transmission date of the e-mail. As long as You can access and use the Bing Ads Program, You acknowledge that You have the necessary software and hardware to receive and retain these notices. If You do not consent to receive any notices electronically, You must stop using the Bing Ads Program.

All notices to Microsoft will be sent via recognized overnight courier or certified mail, return receipt requested, to the Microsoft address listed above.

14. GOVERNING LAW. The laws of the state or country where Your principal place of business is located govern all claims and disputes concerning this agreement, including breach of contract claims and claims under state consumer protection laws, unfair competition laws, implied warranty laws, for unjust enrichment, and in tort, except that the FAA governs all provisions relating to arbitration. If federal jurisdiction exists, Microsoft, Your agency (if applicable), and You consent to exclusive jurisdiction and venue in the federal courts in King County, Washington for all disputes arising from or related to this agreement that are heard in court (not arbitration and not small claims court). If federal jurisdiction does not exist, You, Your agency (if applicable), and Microsoft consent to exclusive jurisdiction and venue in the state courts in King County, Washington for all disputes arising from or related to this agreement that are heard in court (not arbitration and not small claims court). The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods do not apply. The prevailing party is entitled to recover its costs, including reasonable attorney's fees in any action or suit (if Section 11 permits an action or suit) to enforce any right or remedy under this agreement or to interpret any provision of this agreement. Neither party is entitled to recover its costs or attorneys’ fees in arbitration except as Section 11.f provides.

15. INTERPRETATION. Except as provided in Section 11.j, if an arbitrator or court of competent jurisdiction finds any term of this agreement unenforceable, the agreement will be deemed modified as necessary to make it enforceable, and the rest of the agreement will be fully enforced to effect the parties’ intent. Lists of examples following “including”, “e.g.,” or “for example” are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise: (1) all internal references are to this agreement and its parties; (2) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (3) URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs; and (4) a party’s choices under this agreement are in its sole discretion.

16. FORCE MAJEURE. Neither of us will be liable for failure to perform any obligation under this agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond our reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use its commercially reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.

17. ASSIGNMENT AND ACCOUNT TRANSFER. Neither of us may assign this agreement, or any rights or duties under it, except with the other party’s express, prior, written consent. Notwithstanding the foregoing, Microsoft may assign this agreement to any of its Affiliates or to a third party in the ordinary course of business. Microsoft may transfer Your Bing Ads Account to a third party, including transferring your Bing Ads Account to Yahoo!, regardless of whether Microsoft assigns this agreement to such third party and you may be required to sign a new agreement with such third party. Any attempted assignment in violation of this Section 17 is a material breach of this agreement and is null and void. Subject to the prior sentences, this agreement will bind and benefit the parties’ successors and permitted assigns.

18. MISCELLANEOUS. Each of us is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this agreement does not create any other relationship (e.g., employment, partnership, or agency). All rights and remedies under this agreement are cumulative. Each of us will pay our own costs to perform (except if expressly stated otherwise). When performing this agreement (including with regard to sharing any user data with the other party), each of us will comply with all applicable laws, rules, and regulations. Only written waivers are effective. This agreement is the parties’ entire agreement on this subject and merges and supersedes all related oral understandings, representations, prior discussions, letters of intent, or preliminary agreements. If an arbitrator or any court of competent jurisdiction determines that any provision of this agreement is illegal or unenforceable, the remaining provisions will remain in full force and effect. Section 11.j says what happens if parts of Section 11 (arbitration and class action waiver) are found to be illegal or unenforceable. Section 11.j prevails over this section if inconsistent with it.

19. BING ADS EXPRESS – CONTENT, SERVICES AND AUTHORIZATION (applies to Bing Ads Express customers only).

a. Your Content. In order for Microsoft to provide the Bing Ads Express Program to You, You must provide the following information to Microsoft: (i) Your business category (e.g., Italian restaurant, seafood restaurant); (ii) Your business address; (iii) information about the target geography of Your customers (e.g., within 20 miles from Your business address); and (iv) Your content (e.g., text and URLs for the Advertisements) (i-iv, collectively, “Content”). Microsoft will then provide budget options for You to select from (and may offer You the ability to create a custom budget), and ask You to create Your Advertisement. If You wish, You may also request that Microsoft creates an Advertisement for Your business based on the Content that You provide. You will not have the ability to approve any Microsoft-created Advertisement before it goes live, but Microsoft will make each Advertisement that Microsoft creates available to You in Your Bing Ads Express dashboard. You must review each Advertisement that You have requested Microsoft to create, and You are responsible for determining that Advertisement’s truthfulness, accuracy, completeness, lawfulness and appropriateness. If Microsoft creates an Advertisement on Your request, and You feel that the Advertisement is not truthful, accurate, complete, lawful or appropriate, You must promptly pause the business category for that Advertisement. Microsoft will also select Keywords for Your business. If You selected one of the three standard budget options, Microsoft will use commercially reasonable efforts to optimize the Advertisement campaign to deliver the estimated number of Clicks You selected as part of that standard budget.

b. Microsoft Services and Your Authorization. Microsoft will assist You with Your Bing Ads Express experience by selecting the Keywords for Your Advertisements, providing budget options, and upon Your request creating Advertisements using Your Content. In addition to the Content, You may provide Microsoft with other information reasonably requested by Microsoft to assist You in advertising through Microsoft Bing Ads Express (the "Advertiser-Provided Materials"). You hereby authorize Microsoft to access Your Bing Ads Express account to place Your Advertisements on Microsoft Bing Ads Express on Your behalf. You hereby grant Microsoft a royalty-free, non-exclusive, non-transferable license in perpetuity to use, reproduce and modify the Advertiser-Provided Materials and the Content for the purpose of providing these services to You. Without limiting the generality of the foregoing, You are solely responsible for determining whether Your Advertisements (whether created by You or by Microsoft on Your behalf) violate any trademark or other rights of any third party. The decision to provide the Content to Microsoft for use in a campaign within Microsoft Bing Ads Express or on any other media outlet is solely Yours.

20. BING ADS EXPRESS – PAYMENT AND REPORTING (applies to Bing Ads Express customers only).

a. Payment Calculation. You will pay Microsoft the charges due for the Bing Ads Express Program based on the number of Clicks delivered by Microsoft multiplied by the cost of the Advertisement, which will be computed in accordance with Microsoft standard policies (the "Click Fees"). The Click Fees for each month will not exceed the budget You selected. You may authorize a third party to pay Your Click Fees on Your behalf, but You are responsible for any payment obligations arising out of Your participation in the Bing Ads Express Program. As used in this agreement, one "Click" means an action associated with clicking upon or accessing, in a single instance, to a hypertext link contained in the Advertisement.

b. Payment Method Selection; Payment Information. You will select an available payment program when You enroll in the Bing Ads Express Program. You will provide to Microsoft any payment information (e.g., credit card) required for that payment program. You represent and warrant to Microsoft that any payment information that You provide to Microsoft is true and accurate, and You agree that You will promptly update Microsoft with any changes to that payment information. Your use of the Bing Ads Express Program constitutes Your reaffirmation that Microsoft is authorized to charge Your payment method for amounts incurred in connection with the Bing Ads Express Program. Microsoft may submit such charges for payment utilizing the payment information that You have supplied and You hereby agree to pay any those charges.

c. Payment Frequency. You expressly authorize Microsoft to charge Your payment method at least one time per calendar month for Click Fees (if any) in accordance with the applicable payment program. You understand that Microsoft will suspend the display of Your Advertisements (i) for the remainder of any calendar month once the applicable monthly Click Fee budget is reached, or (ii) on the end date You specify in Your Bing Ads Express account. You understand that Microsoft may resume displaying Your Advertisements on the first day of each subsequent calendar month if You do not specify an end date in Your Bing Ads Express account.

d. Revocation of Payment Method. You may revoke at any time Your authorization for Microsoft to charge Your payment method for a recurring fixed payment by pausing the applicable campaign(s) via the Bing Ads Express Site. Microsoft will honor Your revocation by the end of the second business day after You pause one or more campaigns. You acknowledge that any revocation of Your authorization may require the removal of Your Content from the Microsoft Advertising Network. You further acknowledge that (i) You remain responsible for all Click Fees incurred through the end of the second business day following the date on which You revoke Your authorization, and (ii) Microsoft may charge Your payment method for any unpaid amounts at the end of the billing period following the date on which You revoke Your authorization.

e. Default; Billing Disputes. If You are in default of Your obligations, Microsoft may immediately charge Your payment method for any other amounts owing (e.g., amounts owing on other accounts or campaigns), remove Your Content or any part thereof from the Microsoft Advertising Network, and terminate this agreement in addition to any other rights or remedies Microsoft may have. Removal of the Advertisements will not relieve You of Your obligation to pay Click Fees owing to Microsoft for Clicks that accrue prior to the removal. You may view reports of the Microsoft calculation of Click Fees online through the Bing Ads Express Site, and the Microsoft reports will be the exclusive standard for billing. You understand that third parties may generate impressions or Clicks on Your Advertisements for prohibited or improper purposes, and You accept the risk of any such impressions and Clicks. You must notify Microsoft in writing of any disputed amount within 45 days following the date of an invoice or charge to Your payment method. Following receipt by Microsoft of Your written notice, Microsoft will research Your inquiry and will notify You of a resolution within a reasonable time period. The resolution of Your inquiry will be determined by Microsoft at its sole discretion, and Microsoft has no obligation to provide a particular remedy to You. You remain obligated to pay the full invoiced amount if You fail to provide this written notice to Microsoft.