This Bing Merchant Data Feed Terms of Use (this “Agreement”) is between Microsoft Corporation (“Microsoft”), and merchants participating in the Bing Shopping Program (each a “Merchant”).
Unless Merchant and Microsoft have otherwise agreed in writing, then this Agreement will govern Merchant’s use of the Bing Shopping Program. If Merchant and Microsoft are parties to a cashback merchant agreement, Merchant acknowledges that its cashback merchant agreement with Microsoft is automatically terminated and superseded by this Agreement unless otherwise agreed in writing.
By participating in the Bing Shopping Program, Merchant accepts the terms of this Agreement. If Merchant does not agree to the terms of this Agreement, Merchant should not participate in the Bing Shopping Program.
1. SCOPE OF PROGRAM. The Bing Shopping Program (“Program”) provides Merchant with the opportunity to advertise its online store (“Merchant Site”) and associated product links (“Listings”) through the Internet Search Services and on certain Microsoft Properties (as defined below). Listings may include Merchant-supplied text and/or graphics, as well as information about product characteristics, availability and price, and other information and data provided in accordance with any Program policies and technical requirements, including but not limited to the Bing Shopping Program Merchant Integration Guide, that Microsoft publishes, which can also found at the Merchant Portal, as such Program policies and URL may be updated from time to time. Subject to Merchant’s compliance with this Agreement and such other Program policies, Merchant may participate in the Program.
“Internet Search Services” refers to a Microsoft product providing worldwide search services that index and search the world wide web (i.e., “web”) and other data sources (e.g., a shopping database, that Microsoft may in its discretion choose to index as part of its search service), hosted by or on behalf of Microsoft (or a Microsoft affiliate), for Microsoft branded or Microsoft co-branded (for example,www.xxxx.bing.com), or otherwise Microsoft supported and/or powered search services regardless of how such search services may be accessed, distributed or redistributed. For purposes of clarification, an Internet Search Service may include any or all of the following search-related services and features that are accessed via (i) Bing; (ii) MSN (including those parts of MSN that are not branded “Bing”); (iii) the Internet Explorer browser and any other internet-enabled product that is designed to enable internet-based search services and features (for example, and without limitation, the Bing or MSN Toolbar, the Bing Mobile client, MSN software client, Microsoft Office, Microsoft Windows operating system, etc.); and (iv) third-party internet-enabled services, software, and/or other applications that are co-branded with, and/or powered by, a Microsoft Internet Search Service.
“Microsoft Properties” means the web sites, web pages and services owned or operated by Microsoft and located at the domains xxx.msn.com, xxx.bing.com, m.bing.com, and xxx.live.com and any successor, similar or replacement versions of such web sites or services, however the same may be distributed or rendered, regardless of whether or not marketed or promoted under the same name and accessible via the internet on various devices, including but not limited to personal computers, mobile devices and television or gaming consoles. At Microsoft’s discretion, “Microsoft Properties” may also include (a) co-branded or white label versions of these web sites, web pages or services that are powered or distributed either by Microsoft or a third party, (b) any non-English language version of these web sites or services, and (c) Microsoft software applications, services or tools, provided such software application, service or tool contains a link back to one of the foregoing Microsoft Properties.
Microsoft reserves the right at any time to modify or discontinue, temporarily or permanently, the Program (or any part of the Program) with or without notice. Merchant agrees that Microsoft will not be liable to Merchant or any third party for any modification, suspension, or discontinuance of the Program.
2. AUTHORITY TO ACCEPT THIS AGREEMENT. Merchant represents that it is of legal age to form a binding contract and has the full power, capacity and authority to accept this Agreement. If Merchant is entering into this Agreement on behalf of a company or other legal entity, Merchant represents that it has the legal authority to bind the legal entity to this Agreement, in which case “Merchant” shall mean such entity. If Merchant does not have such authority, Merchant must not participate in the Program.
3. MERCHANT REGISTRATION AND ELIGIBILITY. In order to be eligible for the Program Merchant must be domiciled in the United States and conduct transactions in United States dollar (USD). Merchant is required to provide current, accurate identification, contact, and other information as part of the registration process for a Program account in order to access the Merchant portal, and for continued use of the Program. Merchant is responsible for all activities that occur under its account including maintaining the confidentiality of Merchant account information and password, Merchant agrees to immediately notify Microsoft of any unauthorized use of Merchant’s password or account or any other breach of security. Microsoft cannot and will not be liable for any loss or damage arising from Merchant’s failure to comply with this Section. Microsoft may reject or accept Merchant for any reason or no reason at any time without notice.
4. LISTING REQUIREMENTS AND PRODUCT DATA. Merchant shall provide Microsoft with all information, data, text, logos, images, and URLs (“Content”) for the Listings, pursuant to Microsoft’s then-current published requirements and Program policies, including any editorial guidelines and creative limitations. To promote a high quality experience for customers, Merchant shall update its Content and Listings to reflect Merchant’s then-current product pricing, availability, and shipping costs promptly after Merchant makes comparable updates on the Merchant Site. Merchant’s failure to meet applicable time requirements or specifications for Content or Listings may delay or prevent placement of the Content or Listings into the Program or cause their removal from the Program.
In addition, Merchant permits Microsoft to obtain product information, product images, and classifications directly from the Merchant Site. Microsoft may store, retain and use this information, and the Content and Listings provided by Merchant, to display Listings and to improve the Internet Search Services and the Microsoft Properties.
If the Content Merchant submits contains URLs (or equivalent thereof), Merchant agrees that Microsoft has the right to access, index, cache or crawl the URL(s) (or equivalent thereof), Merchant’s Content itself, or any portion thereof in connection with Microsoft’s authorized use of Merchant’s Content.
5. SUBMITTING CONTENT ON BEHALF OF THIRD PARTIES. If Merchant submits Content or Listings on behalf of one or more third parties, then Merchant represents that it is authorized to act on behalf and bind such third parties to this Agreement.
If Merchant’s application or the Merchant Site enables third parties, including end users, to provide Content or Listings to the Program, Merchant must clearly and conspicuously disclose to such third parties that their Content and Listings will be provided to Microsoft and made available to the general public through the Program.
6. MICROSOFT CONTROL. As between Microsoft and Merchant, Microsoft will have the sole right within the Microsoft Properties and the Internet Search Services to (a) determine whether to include any of Merchant’s Content or Listings; (b) determine the placement and position of Merchant’s Content and Listings; (c) determine on which web sites, web pages and services to include Merchant’s Content and Listings, and (d) remove or exclude any of Merchant’s Content or Listings.
7. MERCHANT’S CONDUCT. Merchant agrees that it is responsible for its own conduct, Content, Listings, and Merchant Site while participating in the Program and for any consequences of its conduct, Content, Listings and Merchant Site. Merchant agrees to comply with the Merchant Integration Guide that Microsoft publishes, which can also be found at the Merchant portal, as such Program policies and URL may be updated from time to time.
You agree to use the Program only for purposes that are legal and that you will not:
- Threaten, stalk, defame, defraud, degrade, victimize, or otherwise violate the legal rights of others;
- Submit Content that is protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights thereto or have received all necessary permission of the owner(s);
- Submit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful Content;
- Submit any Content posted by another that you know, or reasonably should know, cannot be legally distributed in such manner;
- Impersonate another individual or entity, misrepresent the source of Content you submit, falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
- Submit Content that falsely expresses or implies that such Content is sponsored or endorsed by Microsoft;
- Create user accounts by automated means; and
- Submit Content that promotes illegal activities; physical harm or injury against any group or individual; or transmit viruses, worms, defects, Trojan horses, or any items of a destructive nature.
Merchant understands that Microsoft does not control or endorse the Content that Merchant and others post or provide in connection with the Program. Merchant understands that by using the Program, Merchant may be exposed to Content that is offensive, indecent or objectionable. While Merchant is bound by the Program policies, Merchant acknowledges that Microsoft may or may not pre-screen Content or Listings and has the right (but not the obligation) in its sole discretion to pre-screen, refuse or move any Content and Listings submitted to the Program.
8. NO STORAGE RESPONSIBILITY. Merchant agrees that Microsoft has no responsibility or liability for the deletion or failure to store any Content, Listings, data, and other communications maintained or transmitted by the Program, Microsoft Properties or Internet Search Services. Microsoft retains the right, in its sole discretion, to limit at any time with or without notice the number of transmissions or to withhold any particular Listings, Merchant may send or receive through the Program, the Microsoft Properties or the Internet Search Services.
9. ADVERTISING RIGHTS. Microsoft reserves the right to display any advertising, attribution, links, promotional and/or distribution rights in connection with Merchant’s Content and Listings, and Microsoft and its licensors or affiliates will be entitled to retain any and all revenue generated from any sales or licenses of such advertising, attribution, links, or promotional or distribution rights. Merchant agrees that Microsoft shall not be responsible or liable for any loss or damage of any sort incurred by Merchant as a result of any such dealings or as the result of the presence of such advertisers on the Microsoft Properties or the Internet Search Services.
10. LINKS. The Microsoft Properties or the Internet Search Services may contain links to third party web sites that are not owned, operated or controlled by Microsoft or its affiliates. Neither Microsoft nor any of its affiliates are responsible for any Content, materials or other information located on or accessible from any third party web site. Neither Microsoft nor any of its affiliates endorse, guarantee, or make any representations or warranties regarding any other web sites, or any Content, materials or other information located or accessible from any other web sites, or the results that Merchant may obtain from using any other web sites. Merchant agrees that Microsoft will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such third-party web site.
11. PROPRIETARY RIGHTS. Merchant acknowledges that, as between Microsoft and Merchant, the Program, any necessary software used in connection with the Program, the Microsoft Properties, and the Internet Search Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Merchant further acknowledges that Content contained in Listings or information presented to Merchant through the Program is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Microsoft, Merchant agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Program, the Microsoft Properties, the Internet Search Services or the software used in connection therewith, in whole or in part.
As between Microsoft and Merchant, all Microsoft trademarks, service marks and trade names of Microsoft used in connection with the Program, the Microsoft Properties and the Internet Search Services are trademarks or registered trademarks of Microsoft or its affiliates. Merchant may not use, copy, reproduce, republish, upload, post, transmit, distribute or modify Microsoft’s trademarks in any way, including in advertising or publicity pertaining to the Program, without Microsoft’s prior written consent. The use of Microsoft’s trademarks on any other web site or network computer environment is not allowed. Microsoft prohibits the use of Microsoft’s trademarks as a "hot" link on or to any other web site unless establishment of such a link is approved in advance.
Merchant, or a third party licensor, as appropriate, retains any intellectual property rights in the Content and Listings Merchant submits on or through the Program. By submitting Content and Listings on or through the Program, Merchant grants Microsoft, under those intellectual property rights, an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, sublicensable license to distribute, reproduce, modify, perform and display and otherwise use the Content and the Listings in connection with the Program, the Microsoft Properties and the Internet Search Services. This license is solely for the purpose of providing, promoting and improving the Microsoft Properties and the Internet Search Services.
By submitting Content and Listings on or through the Program, Merchant authorizes Microsoft to use Merchant’s trademarks, service marks, trade names, proprietary logos, domain names and any other source or business identifiers in connection with Microsoft’s authorized distribution of Merchant’s Content and Listings.
12. USER DATA. Merchant must comply with all privacy laws or regulations passed at any time by any government having jurisdiction over it, and Merchant must maintain on the Merchant Site a privacy policy that complies with such laws. Such privacy policy must include (a) a full, accurate, and clear disclosure regarding the placement, use, and reading of cookies, web beacons, and related technologies, and Merchant’s collection, use, and sharing of data in relation to activity by users of the Merchant Site; (b) Merchant’s use of Microsoft (and others, if applicable) for analytics or advertising services on the Merchant Site; and (c) a disclosure that users may choose to not participate in Microsoft’s (and others’, if applicable) personalized advertising services, along with a link to the Microsoft Online Privacy Statement at http://privacy.microsoft.com (or such other address as Microsoft later may provide) where users may “opt out” of such personalized advertising services. Microsoft may retain and use user data collected in connection with the Program subject to the terms of the Microsoft Online Privacy Statement (available at http://privacy.microsoft.com). Other than as provided in the Microsoft Online Privacy Statement, Microsoft will not disclose to any third parties any user data collected in connection with the Program in a manner that contains or reveals any personally-identifiable information.
13. MERCHANT OBLIGATIONS AND REPRESENTATIONS. Merchant represents, warrants and covenants to Microsoft that Merchant’s Content is accurate, complete and current, and Merchant is fully authorized to publish Merchant’s Content, and authorizes Microsoft to publish Merchant’s Content as part of the Listings on the Microsoft Properties and within the Internet Search Services. Merchant further represents and warrants to Microsoft that, (a) Merchant’s use of the Program is not for personal, family, or household purposes, and (b) the Listings do not advertise illegal goods or activities or constitute illegal or fraudulent business practices.14. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT:
- MERCHANT’S USE OF THE PROGRAM IS AT MERCHANT’S SOLE RISK. THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MICROSOFT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED, OR OTHERWISE) INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR TITLE, RELATED TO THE PROGRAM, ITS PERFORMANCE OR ANYTHING PROVIDED IN RELATION TO THIS AGREEMENT.
- MICROSOFT MAKES NO WARRANTY THAT (I) THE PROGRAM WILL MEET MERCHANT’S REQUIREMENTS, (II) THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY MERCHANT THROUGH THE PROGRAM WILL MEET MERCHANT’S EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS DONE AT MERCHANT’S OWN DISCRETION AND RISK AND MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM MICROSOFT OR THROUGH OR FROM THE PROGRAM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU CAN RECOVER FROM MICROSOFT AND ITS AFFILIATES AND SUPPLIERS ONLY DIRECT DAMAGES UP TO US$5. MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT MICROSOFT SHALL NOT BE LIABLE TO MERCHANT FOR ANY OTHER DAMAGES INCLUDING INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MICROSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE PROGRAM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PROGRAM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF MERCHANT’S TRANSMISSIONS OR DATA; (IV) THIRD PARTY PROGRAMS OR THIRD PARTY CONDUCT RELATED TO THE PROGRAM, MICROSOFT PROPERTIES OR THE INTERNET SEARCH SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE PROGRAM.
SOME STATES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTION 14 MAY NOT APPLY TO MERCHANT.
15. INDEMNITY. Merchant will indemnify, defend and hold Microsoft and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, harmless from and against any and all loss, liability, and expense (including reasonable attorneys’ fees) suffered or incurred by reason of any third party claims, proceedings or suits based on or arising out of Merchant’s Content, the Listings, or the Merchant Site, violation of this Agreement, or in any way related to your use of the Program except to the extent of Microsoft’s own negligence or willful misconduct. Microsoft will have the right to participate in any defense under this Section with counsel it selects, and Merchant will not agree to any settlement that imposes any obligation or liability on Microsoft without Microsoft’s prior written consent.
16. TERM AND TERMINATION. If Merchant is dissatisfied with any aspect of the Program, Merchant’s sole remedy is to cease participating in the Program and terminate this Agreement.
Merchant and/or Microsoft may terminate this Agreement and/or terminate or suspend Merchant’s participation in the Program, at any time, for any reason or for no reason (including for account inactivity). Unless Microsoft has previously terminated Merchant’s use of the Program (in which case subsequent notice by Microsoft shall not be required), if Merchant has provided an email address, Microsoft will notify Merchant via email of any such termination or cancellation, which shall be effective immediately upon Microsoft’s delivery of such notice. In the event of termination, Merchant’s account will be disabled and Merchant may not be granted access to its account or any files or other Content contained in Merchant’s account although residual copies of information may remain in Microsoft’s system. The following sections will survive termination: this Section; Sections 11 and 12; Sections 14 and 15 (but only with respect to claims arising or occurring prior to termination); and Sections 18, 19, 20, 21 and 22.
17. NOTICES. This Agreement is in electronic form, and Merchant consents to Microsoft sending Merchant any information related to this Agreement in electronic form (by email, by access to a Microsoft website designated in an email notice to you, or by posting in the Merchant portal including any successor Merchant portal or website that Microsoft notifies Merchant of by email). Merchant may withdraw this consent, but if you do, Microsoft may terminate this Agreement and your right to access and use the Program. Notices provided to Merchant by email will be deemed given and received on the email transmission date. Microsoft may give notices to Merchant by electronic mail to the e-mail address provided by Merchant to Microsoft. It is Merchant’s responsibility to ensure that Merchant’s e-mail address and any other contact information Merchant provides to Microsoft is updated and correct. All notices to Microsoft will be sent via recognized overnight courier or certified mail, return receipt requested, to Microsoft Corporation, One Microsoft Way, Redmond, Washington, 98052-6399, ATTN: Bing Merchant Data Feed Program with a copy to the same address ATTN: Legal and Corporate Affairs, Deputy General Counsel Online Services Division.
18. MODIFICATIONS. Microsoft may modify this Agreement from time to time and if Microsoft modifies this Agreement it will provide notice to Merchant as provided in Section 17 above. If Merchant does not agree to these changes, then Merchant must stop participating in the Program. Merchant’s continued participation in the Program following notice will be deemed to be Merchant’s acceptance of the terms of such modification. Microsoft will not be liable for any costs that Merchant incurs, or for lost profits or damages or any kind, related to any modification. Microsoft may choose in the future to charge for all use of the Program or change the requirements to use that are free of charge. If Microsoft chooses to change the fee requirements for the Program, Microsoft will provide notice of such terms as provided in Section 17 above, and Merchant may elect to stop participating in the Program rather than incurring fees.
19. NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Under Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to service provider's designated agent.
ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement at here.
20. NO THIRD PARTY BENEFICIARIES. Merchant agrees that, except as otherwise provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
21. CLAIMS MUST BE FILED WITHIN ONE YEAR. Any claim related to this Agreement or the Program may not be brought unless within one year. The one-year period begins on the date when the claim first could be filed. If it is not filed, then that claim is permanently barred. This applies to Merchant and Merchant successors. It also applies to Microsoft and Microsoft successors and assigns.
22. MISCELLANEOUS. This Agreement is governed by Washington law, without regard to its conflicts of law rules. Merchant (a) irrevocably submits to venue and personal jurisdiction in the federal and state courts in King County, Washington, for any dispute arising out of or related to this Agreement and waives all objections to jurisdiction and venue of such courts, and (b) agrees not to commence or prosecute any such dispute other than in such courts. The prevailing party is entitled to recover its costs, including reasonable attorneys’ fees in any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement. Merchant may not assign or otherwise dispose of this Agreement without Microsoft’s prior written approval. This Agreement binds and inures to the benefit of the parties’ successors and lawful assigns. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or communications.
This Agreement was last updated July 2010
