These Google Ireland Limited Advertising Programme Terms (“Terms”) are entered into by Google Ireland Limited (registered number: 368047) with its registered office located at Gordon House, Barrow Street, Dublin 4, Ireland (“Google”) and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Google’s advertising programmes and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that reference or are referenced by these Terms (collectively, “Programmes”). In consideration of the foregoing, the parties agree as follows:
1 Programmes. Customer authorizes Google and any entity that directly or indirectly controls, is controlled by, or is under common control with, Google from time to time (“Affiliates”) to place Customer’s advertising materials and related technology (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by Google or its Affiliates on behalf of itself or, as applicable, a third party (“Partner”). Customer is solely responsible for all: (i) Creative, (ii) Ad trafficking or targeting decisions (e.g., keywords) (“Targets”), (iii) Properties to which Creative directs viewers (e.g., landing pages) along with the related URLs and redirects (“Destinations”) and (iv) services and products advertised on Destinations (collectively, “Services”). The Programme is an advertising platform on which Customer authorizes Google to use automated tools to format Ads. In these Terms an “Advertiser” is an entity whose Ads (whether created by itself or by a third party on its behalf) are placed by Customer through a Programme. If Customer is using a Programme on its own behalf to advertise and not on behalf of an Advertiser, for that use Customer will be deemed to be both Customer and Advertiser. Google and its Affiliates may make available to Customer certain optional Programme features to assist Customer with the selection and generation of Targets and Creative. Customer is not required to authorize use of these optional Targeting and Creative features and, as applicable, may opt-in to or opt-out of usage of these features, but if Customer uses these features then Customer will be solely responsible for the Targets and Creative. Google or Partners may reject or remove a specific Ad or Target at any time for any or no reason. Google and its Affiliates may modify or cancel Programmes at any time. Customer acknowledges that Google or its Affiliates may participate in Programme auctions in support of its own services and products. Some Programme features are identified as “Beta,” “Ad Experiment,” or as otherwise unsupported or confidential (collectively, “Beta Features”). Customer may not disclose any information from Beta Features or the terms or existence of any non-public Beta Features.
2 Policies.
Customer is solely responsible for its use of the Programmes
(e.g., access to and use of Programme accounts and safeguarding
usernames and passwords) (“Use”). Programme Use is subject
to applicable Google policies available at www.google.com/ads/policies
3 Ad Serving. (a) Customer will not provide Ads containing malware, spyware or any other malicious code or knowingly breach or circumvent any Programme security measure. (b) Customer may utilize an Ad server solely for serving or tracking Ads under Programmes that permit third party Ad serving and only if the Ad server has been authorized by Google to participate in the Programme. Google will implement Customer’s Ad server tags so that they are materially functional. (c) For online display Ad impressions billed on a cost-per-thousand impressions (CPM) basis (“Display Ads”), if Google’s impression count (“IC”) for a Programme is higher than Customer’s third party Ad server (“3PAS”) IC by more than 10% over the invoice period, Customer will facilitate reconciliation efforts between Google and 3PAS. If this discrepancy is not resolved, Customer’s sole remedy is to make a claim within 60 days after the invoice date (“Claim Period”) and (i) Google will issue to Customer advertising credits equal to (90% of Google IC – 3PAS IC) * Google-reported campaign average CPM over the invoice period which must be used by Customer within 60 days of issuance of the credits (“Use By Date”) and (ii) Google may suspend Customer’s permission to utilize that 3PAS provider and the effectiveness of the discrepancy resolution provisions of this sentence for that 3PAS provider. Metrics from 3PAS whose Ad server tags are provided to Google will be used in the foregoing discrepancy resolution calculations. Google may require that discrepancy records be provided directly by 3PAS to Google. Customer will not be credited for discrepancies caused by 3PAS’ inability to serve Ads.
4 Ad Cancellation. Unless a Policy, the Programme user interface or an agreement referencing these Terms (an “IO”) provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Customer cancels an Ad after a commitment date provided by Google (e.g., a reservation-based campaign), then Customer is responsible for any cancellation fees communicated by Google to Customer (if any) and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO, and Customer remains obligated to pay all charges resulting from served Ads (e.g., fees based on conversion). Customer must effect cancellation of Ads (i) online through Customer’s account if the functionality is available, (ii) if this functionality is not available, with notice to Google via email to Customer’s account representative or (iii) if Customer does not have an account representative, with notice to Google via email to adwords-support@google.com . Customer will not be relieved of any payment obligations for Creative not submitted or submitted by Customer after the due date provided by Google. Google will not be bound by a Customer provided insertion order or other Customer provided terms and conditions.
5 Warranty and Rights. Each party warrants to the other that it will use reasonable skill and care in complying with its obligations under these Terms. Customer warrants that (a) it holds, and hereby grants Google, its Affiliates and Partners, the rights in Creative, Destinations and Targets for Google, its Affiliates and Partners to operate the Programmes, (b) all information and authorizations provided by or on behalf of Customer are complete, correct and current, and (c) Use, the Services or Destinations will not: (i) violate or encourage violation of any law or applicable regulation or code of practice (including the CAP Code in the UK and any equivalent advertising standards code of practice in any other jurisdiction); or (ii) infringe any intellectual property rights of any third party and or contain any material which may be harmful, abusive, obscene, threatening or defamatory. Customer authorizes Google and its Affiliates to automate retrieval and analysis of Destinations for the purposes of the Programmes. Customer will provide Advertiser with reporting data as frequently as existing reporting from Customer to Advertiser, but no less than on a monthly basis, that discloses absolute monies spent on Google and performance (at a minimum: cost, clicks and impressions of users on the account of that Advertiser) in a reasonably prominent location. Google may, upon request of an Advertiser, share Advertiser-specific information with Advertiser.
6 Make-Goods. For reservation-based Display Ads, Google will deliver any agreed upon aggregate number of Display Ads by the end of the campaign, provided that if Google fails to do so, then Customer’s sole remedy is to make a claim during the Claim Period. If Google confirms the accuracy of the claim, then Google will not charge Customer for the undelivered Display Ads or, if Customer has already paid, at Google’s reasonable discretion, Google will provide for (i) advertising credits, which must be used by the Use By Date, (ii) later placement of the Display Ads in a position Google deems comparable or (iii) an extension of the term of the campaign. Google cannot assure that any auction-based Ads will be delivered and therefore make-goods do not apply to auction-based Ads.
7 Payment. Customer will pay all charges incurred in connection with the Programme, in immediately available funds or as otherwise approved by Google, within a commercially reasonable time period specified by Google (e.g., in the Programme user interface or IO). If payment is not made when due, Google may charge interest at the rate of 2% per annum above the prevailing base rate of Barclays Bank PLC from the due date until the date of actual payment, whether before or after judgment. Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses together with legal and other professional fees Google incurs in collecting late payments. Charges are solely based on Google’s measurements for the Programmes and the applicable billing metrics (e.g., clicks or impressions). Any portion of a charge not disputed in good faith must be paid in full. No party may offset any payment due under these Terms against any other payment to be made under these Terms. Google may, in its sole discretion, extend, revise or revoke credit at any time. Google is not obligated to deliver any Ads in excess of any credit limit. If Google delivers Ads but does not deliver those Ads to the selected Targets, then Customer’s sole remedy for Google’s failure to deliver those Ads to the selected Targets is to make a claim for advertising credits within the Claim Period, after which Google will issue the credits following claim validation which must be used by the Use By Date. Customer understands that third parties may generate impressions or clicks on Customer’s Ads for prohibited or improper purposes and that its sole remedy is to make a claim for advertising credits within the Claim Period, after which Google will issue the credits following claim validation which must be used by the Use By Date. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) CUSTOMER WAIVES ALL CLAIMS RELATING TO ANY PROGRAMME CHARGES UNLESS A CLAIM IS MADE WITHIN THE CLAIM PERIOD AND (B) THE ISSUANCE OF ADVERTISING CREDITS (IF ANY) IS AT GOOGLE’S REASONABLE DISCRETION AND IF ISSUED, MUST BE USED BY THE USE BY DATE. Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Google may be shared by Google with companies who work on Google's behalf solely for the purpose of performing credit checks, effecting payment to Google, collecting debts owed to Google and/or servicing Customer's account.
8 Disclaimers. No conditions, warranties or other terms apply to any Programme or to any other goods or services supplied by Google or its Affiliates under the Terms unless expressly set out in the Terms. To the fullest extent permitted by law, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description). None of Google, its Affiliates or Google’s Partners makes any guarantee in connection with the Programmes or Programme results.
9 Limitation of Liability. (a) Nothing in the Terms or any IO will exclude or limit either party’s liability: (i) for death or personal injury resulting from the negligence of either party or their servants, agents or employees; (ii) for fraud or fraudulent misrepresentation; (iii) under Clause 10 (Indemnification); (iv) for Customer’s breach of Clauses 3(a), 5(c), 12(d) or the last sentence of Clause 1, (v) for payment of sums properly due and owing to the other in the course of normal performance of the Terms; or (vi) for anything which cannot be excluded or limited by law. (b) Neither party shall be liable under or in connection with these Terms or any IO (whether in contract, tort, including, without limitation, negligence or otherwise) for any: (i) loss of profit; (ii) loss of anticipated savings; (iii) loss of business opportunity; (iv) loss of or corruption of data; (v) loss or damage resulting from third party claims; or (vi) indirect or consequential losses; suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date these Terms were accepted by Customer). (c) Subject to sub-clauses 9(a) and (b) above, each party's aggregate liability to the other arising from any given event or series of connected events under or in connection with the Terms, shall be limited to the greater of: (i) the amount paid or payable by Customer to Google under the Terms in the three months immediately preceding the month in which the event (or first in a series of connected events) occurred and (ii) £25,000.
10 Indemnification. Customer will defend, indemnify and hold harmless Google, its Partners, agents, Affiliates, and licensors from any third party claim or liability arising out of or related to Targets, Creative, Destinations, Services, Use and/or breach of these Terms by Customer. Partners are intended third party beneficiaries of this Clause.
11 Term and termination. Google may add to, delete from or modify these Terms at any time. The modified Terms will be posted at www.google.com/ads/terms. Customer should look at these Terms regularly. The changes to the Terms will not apply retroactively and will become effective 7 days after posting. However, changes specific to new functionality or changes made for legal reasons will be effective immediately upon notice. Either party may terminate these Terms at any time with notice to the other party, but (i) campaigns not cancelled under Clause 4 and new campaigns may be run and reserved and (ii) continued Programme Use is, in each case subject to Google’s then standard terms and conditions for the Programme available at www.google.com/ads/terms. Google may suspend Customer’s ability to participate in the Programmes at any time. In all cases, the running of any Customer campaigns after termination is in Google’s sole discretion. From time to time Customer may have advertising credits or other unclaimed funds within the AdWords Programme account ("AdWords Credits"). Unless used by the applicable expiration date, Adwords Credits will expire and not be available to the Customer, according to the following schedule: (a) AdWords Credits issued pursuant to Clauses 3 or 6 above will expire if not used by the relevant Use By Date; (b) AdWords Credits provided by Google for promotional purposes will expire if not used by the relevant date in the promotion or during the time period specified in such promotional terms and conditions, and (c) AdWords Credits not otherwise covered by (a) or (b) will expire if not used within 3 years of the date when such AdWords Credits became available to Customer within the AdWords Programme.
12 Miscellaneous. (a) These Terms are governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning these Terms or the Programmes. (b) Nothing in these Terms will limit a party’s ability to apply to any court to seek equitable relief. (c) Subject to Clause 9(a)(ii), these Terms set out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into these Terms neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in these Terms. (d) No party may make any public statement regarding the relationship contemplated by these Terms (except when required by law). (e) All notices of termination or breach must be in writing and addressed to the other party’s Legal Department (or if it is not known if the other party has a Legal Department then to the other party's primary contact). The email address for notices being sent to Google’s Legal Department is legal-notices@google.com. All other notices must be in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable). These notice requirements do not apply to legal service of process, which is instead governed by applicable law. (f) Except for modifications to these Terms by Google under Clause 11, any amendment must be agreed to by both parties and expressly state that it is amending these Terms. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms. If any term (or part of a term) of these Terms is invalid, illegal or unenforceable, the rest of these Terms will remain in full force and effect. (g) Neither party may assign any part of these Terms without the written consent of the other party, except to an entity that directly or indirectly controls, is controlled by, or is under common control with the assigning party but only where (I) the assignee agrees in writing to be bound by these Terms, (II) the assigning party remains liable for obligations under these Terms if the assignee defaults on them, and (III) the assigning party has notified the other party of the assignment. In addition, Google may assign any debt which is owed to Google by Customer to a third party without the consent of the Customer. Any other attempt to transfer or assign is void. (h) Except as expressly listed in Clause 10, there are no third-party beneficiaries to these Terms. (i) These Terms do not create any agency, partnership or joint venture among the parties. (j) Clauses 1 (last sentence only) and 7 to 12 will survive termination of these Terms. (k) Except for payment obligations, no party or any entity that directly or indirectly controls, is controlled by, or is under common control with, that party from time to time is liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
September 10, 2013