WHEREAS Oath Holdings Inc., a Delaware corporation (“Yahoo”) desires that its advertisers have the ability to receive certain campaign measurement and insight reports based on its ad campaigns served on the Distribution Network (as defined in Section 1.8, below); and
WHEREAS you desire to collect certain ad campaign information on the Distribution Network for and on behalf of each such advertiser in order to provide those advertisers certain campaign measurement and insight reports; and
WHEREAS you further desire to aggregate each advertiser’s ad campaign information collected on the Distribution Network for your internal purposes in order to help you derive and drive buying recommendations for and on behalf of such advertisers;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, you and Yahoo agree as follows:
1.1 “Advertisement” means an advertising unit and its content displayed on the Distribution Network.
1.2 “Advertising Statistics” means the following Yahoo Advertiser campaign information or data collected by you and derived from or in connection with the Pixel Code and Representative Pixel: (a) the total number of Impressions delivered for a particular Advertisement (e.g.,10,000,000 Impressions delivered) and/or clicks delivered (e.g., 350,000 clicks delivered), and (b) the frequency of delivery of the Advertisement to a User (e.g.,how often a User saw an Advertisement).
1.3 “Authorized Agent(s)” means any person or entity acting as your agent to provide a portion or all of the Services, provided that any such other person and/or entity must be approved in advance by Yahoo in writing. Each Authorized Agent must comply with this Pixel Agreement. You are liable for each Authorized Agent’s acts and omissions in connection with this Pixel Agreement. Any breach of this Pixel Agreement by an Authorized Agent constitutes a breach by you.
1.4 “Campaign Planning” means the insights you and/or your Authorized Agents derive from the Advertising Statistics, which may only be used for and on behalf of your advertising clients and solely for campaign analysis and media planning purposes.
1.5 “Click-through” means the initiation of a User presence on a web page that originated from a User’s interaction with an Advertisement.
1.6 “CNAME” means the canonical name record in a DNS database which is part of the zone file and is used to point Internet traffic to a host name (for example, a CNAME record such as ‘abc.yourdomain.com’ can be used to designate traffic to a site at ‘hostname.yourdomain2.com’).
1.7 “Impression” means the recording of each call to a server for an Advertisement to be delivered to a Distribution Network page.
1.8 “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which Yahoo distributes ads, whether on or off the website pages that are owned, operated, authorized, or hosted by or for Yahoo or its affiliates, or for which Yahoo sells advertising (e.g., eBay).
1.9 “Effective Date” means the date Yahoo provides you written notification that you have passed Yahoo’s qualification requirements to collect Advertising Statistics on the Distribution Network.
1.10 “Identifier” means an alphanumeric identifier assigned to a device or browser (e.g., a cookie identifier or mobile device advertising identifier) that is collected or passed to you.
1.11 “Network Advertising Initiative” means the coalition of third-party ad serving companies which has created, and agreed to comply with, a set of self-regulatory privacy principles for third-party ad serving, posted at http://www.networkadvertising.org/ (or any successor site).
1.12 “Personally Identifiable Information” means any and all information that could, individually or when combined with other information, identify an individual (including an individual’s name, address, phone number, e-mail address, social security number, account number, or security key).
1.14 “Profiles” means compilations of (a) anonymous information that is self-reported demographic data (e.g., age, gender, income, and interest information), (b) anonymous information produced from a process that predicts user characteristics, (c) information generated from instances where a User’s browser requests an Advertisement (e.g., an Internet Protocol address, the time and date of the transaction, the referral Uniform Resource Locator, and the information contained in the applicable browser’s cookie), and (d) any other information regarding a User that is not Personally Identifiable Information but is gathered by you or a Yahoo Advertiser from a User’s interaction with an Advertisement.
1.15 “Reporting Services” means general Yahoo Advertiser campaign reports derived from, or created by you and/or your Authorized Agents in connection with, the Advertising Statistics, which reports may only be shared with Yahoo and the applicable Yahoo Advertiser for which the Advertising Statistics were specifically collected.
1.16 “Representative Pixel” means the transparent 1x1 pixel .gif file called by the Pixel Code.
1.17 “Services” means the serving of the Pixel Code and Representative Pixels into and via Advertisements on the Distribution Network, Campaign Reporting, and Reporting Services.
1.18 “User” means a user that has been served an Advertisement on the Distribution Network.
1.19 “Yahoo Advertiser” means an advertiser that has signed an insertion order or has some other contractual relationship with Yahoo under which its Advertisements are to appear on the Distribution Network.
2. Qualification/Authorization to Insert Pixel Code and Representative Pixels
Provided that you comply with this Pixel Agreement, pass ongoing monitoring, qualification, and compliance requirements established by Yahoo, and have a written agreement with each Yahoo Advertiser to insert or append the Pixel Code into and via such Yahoo Advertiser’s Advertisement, you and your Authorized Agent may serve, pursuant to this Pixel Agreement, the Pixel Code and Representative Pixel approved by Yahoo as set forth in Exhibit C into and via the Advertisements purchased by such Yahoo Advertiser to run on the Network during the Term. Yahoo is not responsible for any fees or other elements that are associated with the serving of the Pixel Code and Representative Pixels into and via Advertisements. You and/or your Authorized Agent promptly will cease serving your Pixel Code and Representative Pixels into and via Advertisements (or such subset of Advertisements of which Yahoo gives notice) to the Network if notified by Yahoo that you and/or your Authorized Agent have failed to comply with this Pixel Agreement. Any changes, revisions of or replacement to the Pixel Code and Representative Pixels previously approved by Yahoo (collectively, “Revisions”) must be submitted by you to Yahoo at least three (3) days prior to the date on which such Revisions are to take effect. Revisions will not take effect, and may not be implemented on the Network, unless and until approved by Yahoo.
3. Term and Termination
3.1 This Pixel Agreement will take effect on the Effective Date and will continue for one (1) year, unless earlier terminated as provided herein. Prior to the Effective Date, you are not permitted to serve any Pixel Code or Representative Code via Advertisements purchased by any Yahoo Advertiser to run on the Network. After the initial one-year period, provided that you are in strict compliance with this Pixel Agreement, this Pixel Agreement will automatically renew for additional one (1) month periods (the initial one (1) year term and renewal periods collectively, “Term”).
3.2 This Pixel Agreement may be terminated by you for any reason or no reason upon 30 days’ prior written notice to Yahoo Yahoo may terminate this Pixel Agreement at any time upon written notice to you for any reason or no reason, including if Yahoo discovers that you: (i) have served a Pixel Code and Representative Pixel into and via an Advertisement running on the Distribution Network in breach of this Pixel Agreement; (ii) have served any unauthorized Pixel Code and Representative Pixel or other code into and via an Advertisement on the Distribution Network; (iii) failed to meet Yahoo’s stress tests (if applicable) or other qualifications; (iv) failed to comply with any of the Service Level Requirements, or (v) collected or used data including Personally Identifiable Information in breach of this Pixel Agreement.
3.3 Sections 1, 3, 4.3, 4.4, 4.6, 4.7, and 5 through 12 will survive the termination of this Pixel Agreement.
3.4 Immediately upon this Pixel Agreement’s termination, you will cease serving any Pixel Code and Representative Pixels on the Distribution Network.
4.1 You are prohibited from undertaking any activity that would result in Third-Party Data Collection activities. “Third-Party Data Collection” means any activity that would result in someone other than Yahoo, or you or your Authorized Agents enabling another party (including a Yahoo Advertiser) to embed code into or piggyback the Pixel Code or Representative Pixel.
4.2 You will notify Yahoo immediately, but in no event later than four (4) hours, upon learning that the Pixel Code or a Representative Pixel or any other code has been served in breach of this Pixel Agreement.
4.4 You shall not (i) collect any data through your activities in connection with this Pixel Agreement other than the Advertising Statistics and Identifiers, and you may use, read, disclose, and/or store such data only as explicitly permitted herein, (ii) serve code into or via Advertisements that prompts any User to install any type of software, browser helper object, ActiveX controls, or any similar software. You shall not use any security exploits or oversights in a User’s browser to install any type of software, browser helper object, or any similar mechanism, (iii) utilize any technology that creates any kind of persistent identification object/element that, when used, will bypass a User’s browser preferences and settings or restore deleted cookies and other cached objects, and (iv) share, or provide access to (directly or indirectly) any data you collect in connection with this Pixel Agreement with anyone (including Yahoo Advertisers) except with (a) Authorized Agents solely to permit them to provide the Services, or (b) the applicable Yahoo Advertiser on whose behalf the Advertisements are being served.
4.5 If you and/or your Authorized Agents have served Pixel Code and Representative Pixel on the Network prior to the Effective Date (“Pre-Effective Date Pixel Code and Representative Pixels”), all data, including Advertising Statistics, collected in connection with the Pre-Effective Date Pixel Code and Representative Pixels will be treated by you and your Authorized Agents in all respects as though it were collected after the Effective Date and will be governed by this Pixel Agreement.
4.6 All CNAMES and any other aliases which are or may be used by you for third-party serving of Advertisements are listed in Exhibit A. You will notify Yahoo at least thirty (30) days in advance of any expected or actual change to the list in Exhibit A.
4.7 You agree to comply with the security provisions set forth in Exhibit D.
4.8 Yahoo may audit you with respect to your compliance with this Pixel Agreement. Yahoo shall bear the cost of any such audit unless the audit determines that you are not in compliance with this Pixel Agreement, in which case, you shall promptly reimburse Yahoo for such audit costs upon invoice from Yahoo
You will indemnify, defend, and hold harmless Yahoo, and Yahoo’s employees, representatives, agents, affiliates, and Yahoo Advertisers (each, a “Yahoo Entity” from all third-party claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with (i) acts and/or omissions by you or your Authorized Agents, (ii) breach of this Pixel Agreement by you and/or your Authorized Agents, and/or (iii) any difference between the Pixel Code and/or Representative Pixel served into and via Advertisements on the Distribution Network and the original form of such Pixel Code and/or Representative Pixels provided to and approved by Yahoo. You are solely responsible for defending any Claim against a Yahoo Entity, subject to such Yahoo Entity’s right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Yahoo Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Yahoo Entity without its prior express written consent.
6. Representations and Warranties
6.1 You represent, warrant, and covenant that your activities related to this Pixel Agreement, including the technology used in connection with the Pixel Code or Representative Pixel, will (i) comply with (a) all applicable laws, statutes, and regulations in effect where the Advertisements are displayed, and (b) the Network Advertising Initiative Web Beacons Guidelines, and (ii) not infringe or violate, as applicable, the copyright, patent, trademark, trade secret, or any other intellectual property right of any third party.
6.2 You represent, warrant, and covenant that you have entered into an agreement with each Yahoo Advertiser on whose behalf you are inserting Pixel Code and Representative Pixels into and via Advertisements and you have the legal authority to serve such Pixel Code and Representative Pixels into and via the Yahoo Advertisers’ Advertisements and take all actions permitted hereunder. Upon request by Yahoo, you agree to immediately deliver to Yahoo the agreement(s) or other written confirmation that authorizes you to act on the applicable Yahoo Advertiser’s behalf in connection with this Pixel Agreement.
6.3 You represent, warrant, and covenant that you will comply with the agreements, terms, conditions, policies, and/or guidelines (as they may be updated or superseded) of the third-party services of platforms (e.g., Google Play, Facebook, iOS App Store, etc.) where you may distribute or operate your products or services or applications that govern the collection and use of data.
7. No Warranties
YAHOO! MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO YOU WITH RESPECT TO THE DISTRIBUTION NETWORK OR THIS PIXEL AGREEMENT, AND YAHOO! SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE DISTRIBUTION NETWORK.
8. Limitation of Liability
EXCEPT FOR BREACH OF SECTION 4, ABOVE, YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 5, ABOVE, AND/OR LIABILITY ARISING OUT OF BREACH OF SECTION 9, BELOW, in no event will YOU OR YAHOO! be liable for any consequential, special, incidental, indirect, or punitive damages, however caused, on any theory of liability, arising out of or in connection with this PIXEL Agreement.
9.1 “Confidential Information” means any information disclosed by you to Yahoo or Yahoo to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or some similar designation. Information communicated orally and/or other intangible information will 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 will 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 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, records, and/or other competent evidence 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. The receiving party will not at any time (i) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party (except to disclose or make available to, in your case, your employees and Authorized Agents, and in Yahoo’s case, its employees, agents, representatives, contractors, account managers, and affiliates, in each case who have a legitimate need to know such Confidential Information), or (ii) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party, or in connection with or as set forth in this Pixel Agreement. All Confidential Information will remain the disclosing party’s property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information of the disclosing party will be delivered to the disclosing party promptly upon the disclosing party’s written request. Notwithstanding the foregoing, neither Yahoo nor you will be required to remove copies of the other party’s Confidential Information from any backup media or servers. Nothing contained in this Pixel Agreement will prevent you or Yahoo from complying with privacy laws and regulations. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect 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. Yahoo may not issue any press release or other public statement regarding this Pixel Agreement without your prior written consent. You may not issue any press release or other public statement regarding this Pixel Agreement without Yahoo’s prior written consent.
Yahoo may give notices to you by email, overnight courier, certified mail, or fax to the address or fax for legal notice provided by you to Yahoo in the questionnaire document related to this Pixel Agreement. It is your responsibility to ensure that your contact and account information (including your email and address) is current and correct, and you will promptly notify Yahoo in writing of any changes to such information. You will send all notices to Yahoo via recognized overnight courier or certified mail, return receipt requested, to: Oath Holdings Inc., Attn: General Counsel, 701 First Avenue, Sunnyvale, CA 94089.
11. Choice of Law; Venue.
This Pixel Agreement and any dispute relating thereto will be governed by the laws of the State of California, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Pixel Agreement. Each party agrees to submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California.
This Pixel Agreement constitutes the entire agreement and understanding between you and Yahoo regarding the subject matter contained herein and supersedes all proposals, representations, claims, and communications in all forms of media (including all instructions, advertisements, messages, and policies), written and oral, regarding the subject matter contained herein. No terms or conditions relative to this Pixel Agreement other than those set forth in this Pixel Agreement will be binding on you or Yahoo. Only a written instrument specifically waiving compliance that is executed by whichever of you or Yahoo is entitled to waive such compliance may waive any term(s) and/or condition(s) of this Pixel Agreement. No waiver by you or Yahoo of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of this Pixel Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of this Pixel Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect. Neither you nor Yahoo will have any liability under this Pixel Agreement by reason of any failure or delay in the performance of Yahoo’s obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond Yahoo’s reasonable control. You and Yahoo are independent contractors and nothing in this Pixel Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and Yahoo. Except as otherwise set forth in this Pixel Agreement, neither you nor Yahoo will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Pixel Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, you acknowledge and agree that any Yahoo Entity will be a third-party beneficiary to this Pixel Agreement and will be entitled to directly enforce, and rely upon, any provision in this Pixel Agreement which confers a benefit on, or rights in favor of, them. You may not assign, sublicense, or transfer this Pixel Agreement or any right or duty under this Pixel Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Yahoo and its subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time to time this Pixel Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, such as to its affiliate(s). Any rights not expressly granted in this Pixel Agreement are reserved by Yahoo, and all implied licenses are disclaimed.Headings used in this Pixel Agreement are for reference purposes only. As used in this Pixel Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
13. Electronic Signatures
You accept this Pixel Agreement and the terms, conditions, and notices contained or referenced herein by clicking on the “I Accept” button/bar in connection with your enrollment. This action creates an electronic signature that has the same legal force and effect as a handwritten signature. When you click on the “I Accept” button/bar during enrollment, you also consent to having this Pixel Agreement provided to you in electronic form. You have the right to receive this Pixel Agreement in non-electronic form and may request a non-electronic copy of this Pixel Agreement before or after you electronically sign this Pixel Agreement by submitting a request to us as specified in this Pixel Agreement. You also have the right, at any time, to withdraw your consent to have this Pixel Agreement provided to you in electronic form. Should you choose to withdraw your consent to have this Pixel Agreement provided to you in electronic form, Yahoo will discontinue your then-current username and password. This means that you will not have the right to serve any advertisements onto the Network unless and until Yahoo issue you a new username and password. Yahoo will only issue you a new username and password after Yahoo receives a signed copy of a non-electronic version of this Pixel Agreement, which Yahoo will send to you upon written request. To withdraw your consent and/or request a non-electronic copy of this Pixel Agreement, please send a letter and self-addressed, stamped envelope to the address set forth in Section 10, above. Your withdrawal of consent will be effective within a reasonable time after Yahoo receives your withdrawal notice described above. Prior to such effective date, this Pixel Agreement electronically signed by and provided to you will remain legally valid and enforceable. In order to access and retain the electronic Pixel Agreement, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). Please print a copy of this Pixel Agreement for your records. To retain an electronic copy of this Pixel Agreement, you may save it into any word processing program. Yahoo will notify you of any changes in the hardware or software requirements needed to access and/or retain this Pixel Agreement that create a material risk that you will not be able to continue to access and/or retain this electronic Pixel Agreement.
EXHIBIT A – CNAMES
Set forth in the Pixel Agreement.
EXHIBIT B - SECURITY PROVISIONS
1. Support. Each party will provide the other with the name of a dedicated security support contact, or contact information for a Network Operations Center, who can be reached with security questions or security concerns twenty-four (24) hours a day, seven (7) days a week. Either party can change the name or contact information for this dedicated security support contact by providing written notice to the security support contact of the other party.
2. Virus Precautions. You represent and warrant that all networks, databases, computers, and software used to perform your obligations to Yahoo under this Pixel Agreement were checked with Internet industry standard up-to-date antivirus software, and were determined to be virus-free, before their first use in performance of this Pixel Agreement. You will update its virus definitions no less than monthly to ensure that they use the most up-to-date definitions available, and will conduct at least biweekly virus sweeps of all networks, databases, computers, and software (including archival copies of the foregoing) used to perform your obligations to Yahoo. You will promptly purge all viruses discovered during such sweeps. Prior to delivering any digital files to Yahoo, you will scan all files with Internet industry standard up-to-date antivirus software and will determine that they are virus-free. If you discover that a virus may have been transmitted to Yahoo or to a User by you, you will promptly notify Yahoo of such possibility in a writing that states the nature of the virus, the date on which transmission may have occurred, and the means you have used to purge the virus.
3. Systems Security.
(a) System Adequacy. You have obtained and have configured with no single points of failure and with minimal latency, adequate hardware, software, power, and human capital redundancies to perform your obligations under both this Pixel Agreement and in accordance with Internet industry standards. The operating system and software of your web server(s) will be properly configured to Internet industry standards, including disabling all unnecessary services, closing all known and published security deficiencies therein, and permitting access thereto only to authorized personnel, subject to password protection. All currently available software patches for the operating system and software involved in fulfilling your obligations to Yahoo will be reviewed for suitability by you within a reasonable period of time after the release of such patches not to exceed 30 days of release of each such patch, unless otherwise specified in this Pixel Agreement, and shall be applied if such patches are applicable for your network.
(b) Firewall. You have implemented and will maintain continuously throughout the Term Internet industry standard firewall protection for all of your networks, databases, and computer systems involved in performing this Pixel Agreement. You will review new releases and patches for your firewall within a reasonable period of time after release for suitability for your network not to exceed 30 days of release of each such patch, and will update your firewall software promptly if such patches are applicable for your network. In addition, you will log (in a time and date-stamped fashion) all attempted accesses to your networks, databases, and computer systems, and the result of such attempts, and will review such firewall and web server access logs daily. You will test your perimeter router and firewall devices at least quarterly for vulnerabilities using Internet industry standard testing methods. You will promptly report in writing to Yahoo any security deficiencies discovered by you as a result of such testing, or as a result of logging access attempts, along with your action plan for curing such security deficiencies promptly but in no event more than five (5) days after the date of discovery. A handwritten log must be made of all actions taken in response to a security incident. The log must be time and date stamped and signed off after each entry. You will notify Yahoo in writing when such security deficiencies have been eliminated. No sensitive User data will ever be stored on an Internet-visible computer unless such data is encrypted. Once an intruder has been detected on your networking or computer system, the intruder should be disconnected immediately. In the event of any security breach in the performance of this Pixel Agreement, you will make no statement to the press without prior written and express permission from Yahoo in each instance.
(c) Encryption. You will use Secure Socket Layer (SSL) to encrypt communications between your server(s) and Yahoo browser(s). You will further encrypt the password and username files for your networks, databases, and computer systems involved in performing this Pixel Agreement using standard Internet industry encryption levels. Any User information permitted to be stored by you pursuant to this Pixel Agreement will be stored on a server which is not visible to the Internet and with standard Internet industry encryption levels.
(d) Passwords. Networks, databases, software, and computer systems involved in performing this Pixel Agreement must be protected by a user name and password system which requires passwords at least eight characters in length. Individual user passwords must be changed at least four times per year, and all four choices must be unique. Accessibility and use of privileged passwords must be minimized. Privileged passwords must be changed at least twice quarterly, and all eight choices must be unique. Wherever possible, commands which require additional privileges should be securely logged (with time and date) to enable a complete audit trail of activities. When an individual terminates his or her employment with you, his or her passwords and access to privileged password facilities must be terminated immediately. Employees must be encouraged to log out at the end of each work day.
(e) Archival Records. You will daily (including weekends) create and maintain incremental archival backups of all networks, databases, and software utilized to perform your obligations to Yahoo under this Pixel Agreement for the sole purpose of enabling restoration of these systems. Archival backups will be stored on a secure server or on other secure media to which access is restricted only to your employees on a need-to-know basis. Physical copies of backups should be made at least weekly and rotated off-site on a weekly schedule.
(f) Maintenance. All networking, software, and computer systems necessary to perform this Pixel Agreement must be maintained in good working order through the Term pursuant to hardware maintenance support available from trusted, reputable maintenance organizations.
4. Security of Physical Premises. You must limit access to your facilities throughout the Term to employees and employee-accompanied visitors using commercially reasonable Internet industry standard physical security methods. At a minimum, such methods must include visitor sign-ins, restricted-access key cards or locks for employees, limited access to server rooms and archival backups, and burglar/intrusion alarm systems. You must promptly report in writing to Yahoo known breaches of the physical premises through which User information may have been compromised. The server room and locations where archival backups are stored must be deemed highly sensitive, restricted-access locations requiring reasonable procedures and safeguards for all employees whose duties include access to those areas.
5. Background Checks. You must conduct security background checks (including, at a minimum, criminal records and civil judgments, social security number, court records, and other applicable public records reports) and verifications of employment, educational background, and references for all individuals involved in satisfying your contractual obligations to Yahoo You must provide an ongoing awareness and training program in information security and in the protection of information resources for all of your personnel whose duties bring them into contact with critical or sensitive information.
6. Security Audits. Yahoo will have the right, at its own expense, to audit, or to have an independent third party that is not your competitor, inspect and audit your security measures pursuant to this Pixel Agreement. You will (at your own expense) correct any security flaws detected by such an audit as soon as possible but in no event more than fifteen (15) days from the release of audit results identifying such a security flaw. You will then promptly certify to Yahoo in writing that the security flaw has been corrected, along with a description of the corrective action(s) taken. All audits will be subject to the following conditions: (i) Yahoo must provide two (2) business days notice before such an audit and may conduct no more than four audits annually, (ii) any such inspection and audit must be conducted during regular business hours in such a manner as not to interfere with normal business activities, and (iii) if an audit reveals a material breach of this Pixel Agreement, then you will reimburse Yahoo for the reasonable costs of the audit.
7. Reviews of Service. Yahoo and you agree to meet periodically but in no event less than on an annual basisto evaluate your security measures and to discuss, in good faith, means by which Yahoo and you can enhance such protection.
8. Confidentiality Agreements; Use of Subcontractors. Prior to commencing work for you, all individuals (employees, contractors, subcontractors, agents, etc.) performing work on your behalf pursuant to this Pixel Agreement must agree to be bound by confidentiality agreements no less protective of Yahoo’s confidential information than the confidentiality provisions outlined in Section 9 of this Pixel Agreement. You will not enter into any agreement with a contractor or subcontractor that would prevent Yahoo or you from conducting the Security Audits as set forth in Section 6, above. You will cause all contractors, subcontractors, agents, and other persons or entities performing any part of your responsibilities under this Pixel Agreement on behalf of you to comply with all applicable terms and conditions of this Pixel Agreement. You guarantee the performance of all your contractors, subcontractors, agents, and other persons or entities performing any part of your responsibilities under this Pixel Agreement on your behalf, and any breach of this Pixel Agreement by any of the foregoing constitutes breach by you.
EXHIBIT C – PERMITTED CODE&PIXELS
Set forth in the Pixel Agreement.
EXHIBIT D - SERVICE LEVEL REQUIREMENTS (“SLA”)
The Services will be provided by you in a professional manner that is generally consistent with industry standards. You will provide 24 hour a day, 365 day a year technical support for the Services. The support provided by you shall be maintained at a level comparable to industry standards of other providers of the Services. In addition to your other obligations herein, you will be available to respond to phone, voicemail, or email requests or questions from Yahoo 24 hours a day, 365 days a year. The Services provided by you will be maintained at the standards set forth herein.
2. Service Levels:
You shall meet the following Service Levels:
The Services will be provided with no Substantial Degradations in Service (defined below) to exceed two (2) hours for any single day, or four (4) hours for any single seven (7) consecutive day period, or eight (8) hours for any single thirty (30) consecutive day period. For purposes of the preceding sentence, a “day” shall mean the twenty-four hour period commencing at midnight Pacific Time and ending at 11:59:59 PM Pacific Time or such other time zone as is relevant to the Additional Territory.
For purposes of this SLA, a “Substantial Degradation in Service” means (i) the failure of your Pixel Code and Representative Pixel to properly perform in response to at least 99.751% of the ad requests in a particular Monitoring Region (defined below) (“Availability Service Level”) averaged over a rolling two (2) hour basis and a monthly basis or (ii) your delivery time related to the Pixel Code and Representative Pixel is in excess of 0.80 seconds as measured from backbone Internet locations by Yahoo and/or its third-party monitoring provider, or (iii) Third-Party Server’s ad lookup/decisioning time of an Advertisement in excess of 0.6 seconds, as measured by Yahoo and/or its third-party monitoring provider.
You will be responsible for maintaining such Service Levels individually in each region checked below (countries comprising such regions is determined by Yahoo).
North America (NA)
South America (SA)
Europe, Middle East and Africa (EMEA)
Asia/Pacific Region (APAC)
3. Escalation procedures:
You will provide Yahoo with a set of documented escalation procedures for critical issues with your Services.
In the event of a Substantial Degradation in Service, promptly upon detection or notification of such Substantial Degradation in Service and in no event more than thirty (30) minutes thereafter, your customer service department (“Customer Service”) will notify Yahoo and provide details of the nature of the Substantial Degradation in Service via (i) e-mail at firstname.lastname@example.org and, (ii) if provided by Yahoo, the email address and telephone number for the Yahoo Network Operations Center (which may be provided by Yahoo after the Effective Date of this Pixel Agreement). If your e-mail capabilities are compromised, your Customer Service will contact Yahoo via telephone at the telephone contact information provided by Yahoo, including, if applicable, Yahoo’s Network Operations Center.
In addition, you shall provide Yahoo with a workaround or correction for all “Errors” (defined as a failure of any portion of the Service to substantially perform in accordance with the Pixel Agreement or in a manner that is consistent with Yahoo’s delivery of ads/content with respect to quantity, quality, and timeliness of the ad/content provided, or any reproducible defect in a feature or function of the Service). In the event of an Error, promptly upon detection or notification of such Error and in no event more than thirty (30) minutes thereafter, you shall notify Yahoo in writing detailing the nature of the Error.
4. Response Time:
You shall respond to any Substantial Degradation in Service as soon as detected by or reported to you, but in no event more than thirty (30) minutes from the time such Substantial Degradation in Service is detected by or reported to you and shall remedy such Substantial Degradation in Service within one (1) hour of detection or notification thereof unless otherwise agreed between the parties in writing.
You shall respond to any Errors as soon as detected by or reported to you, but in no event more than thirty (30) minutes from the time such Error is detected by or reported to you and shall remedy such Error within one (1) hour of detection or notification thereof unless otherwise agreed between the parties in writing.
5. Measurement and Reporting:
Yahoo and/or a third party hired by Yahoo (e.g., Keynote or Gomez) will monitor delivery time and availability of the Pixel Code and Representative Pixel. Reporting on Yahoo’s and/or the third party’s measurements may be provided by Yahoo to you and/or Yahoo Advertisers at Yahoo’s discretion. All such reporting is Yahoo’s Confidential Information.
6. Service Level Reports:
You will provide to Yahoo within one week of the end of each month, a monthly report of all Substantial Degradations in Service, in a mutually agreed upon format. This report will only be generated if a Substantial Degradation in Service occurred in a given month.
7. Coding Changes:
You will provide Yahoo with at least ninety (90) days’ advance notice of any changes to the ad serving/content delivery systems affecting ad serving and/or your ability to meet any of the terms of the Pixel Agreement, and shall promptly provide Yahoo with complete and accurate documentation of the changes.
8. SLA Review:
If changes in Yahoo’s standards or technology occur, Yahoo may change this SLA by providing you with written notice. In the event Yahoo provides such notice, you may terminate this Pixel Agreement within thirty (30) days of receipt of such written notice by notifying Yahoo in writing of your intention to terminate.
Yahoo and/or a third party hired by Yahoo will monitor delivery time and your availability by making ad requests to you in the following manner: Yahoo and/or the third party will make one ad request every 10 minutes to you from between 10 and 15 tier one backbone nodes. Each tier one backbone node will make 1 request every 10 minutes for a total of 6 requests per hour from each node. Results from Yahoo and/or the third party monitoring will be rolled up and measured against the above service levels.