Google LLC Advertising Program Terms


These Google Advertising Program Terms (“Terms”) are entered into by Google Brasil Internet Ltda. (“Google”), company authorized to represent Google LLC and to intermediate the sale of Google LLC Advertising Program in Brazil, acting in a manner to represent its best interests, and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Google LLC’s advertising programs and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that incorporate by reference these Terms (collectively, “Programs”). Please read these Terms carefully. They require the use of binding arbitration to resolve disputes rather than judicial actions. If Customer wishes, Customer may opt out of the requirement to arbitrate disputes by following the instructions in Section 13(F) below within 30 days of the first acceptance date of any version of these Terms.

1      Programs. Customer authorizes Google, as an intermediary in Brazil of the advertising program owned by Google LLC, to place Customer’s advertising materials, feed data, and technology (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by Google LLC or, as applicable, a third party (“Partner”). Customer is solely responsible for all: (i) Ads, (ii) Ads trafficking or targeting decisions (e.g., keywords) (“Targets”), (iii) destinations to which Ads direct viewers (e.g., landing pages, mobile applications) along with the related URLs, waypoints, and redirects (“Destinations”), and (iv) services and products advertised on Destinations (collectively, “Services”). The Program is an advertising platform on which Customer authorizes Google, acting on Google LLC's best interest, to use automated tools to format Ads. Google may also make available to Customer certain optional Program features, owned by Google LLC, to assist Customer with the selection or generation of Targets, Ads, or Destinations. Customer is not required to authorize use of these optional features and, as applicable, may opt-in to or opt-out of usage of these features. However, if Customer uses these features, then Customer will be solely responsible for the Targets, Ads, and Destinations. Google, acting on Google LLC's best interest, or Partners may reject or remove a specific Target, Ad, or Destination at any time for any or no reason. Google LLC may modify or cancel Programs at any time. Customer acknowledges that Google or its affiliates may participate in Program auctions in support of its own services and products. Some Program features are identified as “Beta” or as otherwise unsupported or confidential (“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 Programs (e.g., access to and use of Program accounts and safeguarding usernames and passwords) (“Use”). Program Use is subject to applicable Google policies available at google.com/ads/policies, and all other policies made available by Google to Customer, including Partner policies, and to the extent applicable, the Google EU User Consent Policy at privacy.google.com/businesses/userconsentpolicy (in each case, as modified from time to time, “Policies”). Customer also authorizes Google to modify Ads as described in Policies. In connection with the Program, Google will comply with the Google Privacy Policy available at google.com/policies/privacy (as modified from time to time). To the extent Program Use is within scope, Google and Customer agree, as applicable, to the (i) Google Ads Controller-Controller Data Protection Terms at privacy.google.com/businesses/controllerterms; or (ii) Google Ads Data Processing Terms at privacy.google.com/businesses/processorterms (collectively the “EU Data Terms”). Google and Google LLC will not modify the EU Data Terms, except as expressly permitted under the EU Data Terms. Customer will not, and will not authorize any third party to, (i) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions, (ii) conceal conversions for Programs where they are required to be disclosed, (iii) use any automated means or form of scraping or data extraction to access, query or otherwise collect Google LLC advertising-related information from any Property except as expressly permitted by Google LLC, or (iv) attempt to interfere with the functioning of the Programs. Customer will direct communications regarding Ads on Partner Properties under these Terms only to Google.

3      Ad Serving. (a) Customer will not provide Ads that contain or connect to malware, spyware, unwanted software or any other malicious code, or knowingly breach or circumvent any Program security measure. (b) Customer may utilize an Ad server solely for serving or tracking Ads under Programs that permit third-party Ad serving and only if the Ad server has been authorized by Google LCC and Google to participate in the Program. Google will implement Customer’s Ad server tags so that they are functional. (c) For online display Ad impressions billed on a CPM or vCPM basis (“Display Ads”), if Google’s or Google LLC's applicable impression count (“IC”) for a Program 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”). If Google determines that the claim is valid, then Google will issue to Customer advertising credits equal to (90% of Google’s IC minus 3PAS’s IC), multiplied by Google’s reported campaign average CPM or vCPM, as applicable, over the invoice period. Any advertising credits issued must be used by Customer within 60 days of issuance (“Use-By Date”) and Google will take all necessary actions before the owner of the advertising program (Google LLC) to suspend Customer’s permission to utilize that 3PAS provider and may suspend or void the effectiveness of the discrepancy resolution provisions of this Section for that 3PAS provider. Metrics from 3PAS whose Ad server tags are provided to Google will be used in the above 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’s inability to serve Ads.

4      Testing. Customer authorizes Google and its affiliates to periodically conduct tests that may affect Customer’s Use of Programs, including Ad formatting, Targets, Destinations, quality, ranking, performance, pricing, and auction-time bid adjustments. To ensure the timeliness and validity of test results, Customer authorizes Google to conduct such tests without notice or compensation to Customer.

5      Ad Cancellation. Unless a Policy, the Program 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, 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 this functionality is not available and 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 Ads not submitted or submitted by Customer after the due date provided by Google. Google will not be bound by a Customer provided IO.

6      Warranty, Rights, and Obligations. Customer warrants that (a) Customer holds, and hereby grants Google, its affiliates and Partners, the rights in Ads, Destinations, and Targets for Google, its affiliates and Partners to operate the Google Programs (including, in the case of feed data, after Customer ceases to use the Programs), and (b) all information and authorizations provided by Customer are complete, correct and current. Customer authorizes Google and its affiliates to automate retrieval and analysis of, and create test credentials to access, Destinations for the purposes of the Programs. By providing any mobile or other telephone number to Google in connection with the Programs, Customer authorizes Google, its affiliates and their agents to call and send text messages (for which standard message and data rates may apply) to the provided telephone numbers, including by an automatic telephone dialing system, for purposes of the Programs. However, Google will not rely on this permission to initiate autodialed calls or text messages for marketing purposes. Customer further authorizes Google, its affiliates and their agents to send electronic mail to Customer for purposes of the Programs. Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, each third party, if any, for which Customer advertises in connection with these Terms (“Advertiser”) and any references to Customer in these Terms will also apply to Advertiser, as applicable. If for any reason Customer has not bound an Advertiser to these Terms, Customer will be liable for performing any obligation Advertiser would have had under these Terms had Advertiser been bound. If Customer is using a Program on its own behalf to advertise, for that use Customer will be deemed to be both Customer and Advertiser. Customer will provide Advertiser with reporting data no less than on a monthly basis, that discloses absolute dollars 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. Customer acknowledges and agrees that Google is only an intermediary in the sale of the Google LLC Advertising Program in Brazil and therefore does not perform any editorial control over the content made available. Therefore, in the event of Google or Google LLC being notified or becoming aware of any content deemed to be unlawful or otherwise violating third party rights or local laws and that is being hosted on its websites, they may immediately remove such content without any notice to the Customer.

7      Make-Goods. For reservation-based Display Ads, Google will deliver any agreed on aggregate number of Display Ads by the end of the campaign, but 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) placement of the Display Ads in a position Google deems comparable within 60 days of Google’s confirmation of the accuracy of the claim 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.

8      Payment. Customer will pay all charges incurred in connection with a Program, using a payment method approved by Google, representing Google LLC's interests, for that Customer (as modified from time to time), within a commercially reasonable time period specified by Google (e.g., in the Program user interface or IO). Late payments bear interest at the rate of 1% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) reasonable expenses and legal fees Google incurs in collecting late payments that are not disputed in good faith. Charges are based on the billing criteria under the applicable Program (e.g., based on clicks, impressions, or conversions). 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 does not deliver Ads to the selected Targets or Destinations, then Customer’s 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. Customer understands that third parties may generate impressions or clicks on Customer’s Ads for prohibited or improper purposes and if that happens, Customer’s 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 PROGRAM 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 information relating to its billing and payments might be shared with payment processors or credit bureaus and that Google shall not be responsible for the use or disclosure of such information by such third parties in the performance of its regular activities.

9      Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAMS AND GOOGLE AND PARTNER PROPERTIES ARE PROVIDED “AS IS, AND CUSTOMER USES THEM AT ITS OWN RISK. GOOGLE, ITS AFFILIATES, AND ITS PARTNERS DO NOT MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS. GOOGLE MAKES NO PROMISE TO INFORM CUSTOMER OF DEFECTS OR ERRORS.

10      Limitation of Liability. EXCEPT FOR SECTION 11 AND CUSTOMER’S BREACHES OF SECTIONS 3(A), 14(E) OR THE LAST SENTENCE OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) GOOGLE, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH OTHER TYPES OF DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, GOOGLE, CUSTOMER, AND THEIR RESPECTIVE AFFILIATES WILL NOT BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO GOOGLE BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

11      Indemnification. Customer will defend and indemnify Google, its Partners, agents, affiliates, and licensors against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any third-party allegation or legal proceeding to the extent arising out of or related to Ads, Targets, Destinations, Services, Use or any breach of these Terms by Customer. Partners are intended third-party beneficiaries of this Section.

12      Changes to Terms. Google, acting on Google LLC's best interests, may make non-material changes to these Terms at any time without notice, but Google will provide advance notice of any material changes to these Terms. The Terms will be posted at google.com/ads/terms. Other than changes made under Section 13(D), the changes to the Terms will not apply retroactively and will become effective 7 days after posting. However, 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 Section 5 and new campaigns may be run and reserved and (ii) continued Program Use is, in each case, subject to Google’s terms and conditions then in effect for the Programs (available at google.com/ads/terms). Google may suspend Customer’s ability to participate in the Programs at any time. In all cases, the running of any Customer campaigns after termination is in Google’s sole discretion.
13      Governing Law; Arbitration.

A) Applicable Law. This agreement will be governed by Brazilian law.

B) Arbitration. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED GOOGLE PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) WILL BE DEFINITIVELY RESOLVED BY ARBITRATION IN ACCORDANCE WITH THE ARBITRATION RULES OF THE CENTER OF ARBITRATION AND MEDIATION OF THE BRAZIL-CANADA CHAMBER OF COMMERCE (“Rules”). The arbitral tribunal will be composed of three arbitrators to be appointed in accordance with the Rules.
  1. The arbitration tribunal may not decide by equity and the arbitration will be conducted in Portuguese.
  2. The arbitration will be conducted in São Paulo, Brazil, place where the arbitral award will be rendered.
  3. Either party may, before the establishment of the arbitration tribunal, petition the courts to issue any order necessary to protect that party's rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties elect the courts of São Paulo, SP, as the competent to grant any injunction or urgency order, subject to the terms of this section.
  4. The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.
  5. The parties agree that any arbitration proceeding, any information disclosed during, and any agreements, negotiations, proposals and awards related to such arbitration procedures will not be disclosed to third parties, except if determined by law.
  6. The parties, however, might disclose the information in Section (v) above to a competent court as required to enforce any award rendered by the arbitration tribunal or propose any injunction as defined in Section 12(iii) above, as long as the parties request that the claim is deemed as sealed.
  7. Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitration tribunal’s final decision regarding the dispute. The fees and expenses of the arbitrators and experts appointed by the arbitral tribunal and the administrative expenses of the Arbitration Center referred above that may be incurred during the arbitration shall be paid by the parties in accordance with the RULES and the final decision will decide the obligation of the losing party to repay the amount paid in advance by the other party.
C) Opt out period. Customer (both for itself and for any Advertiser that Customer represents) and Advertiser have the right to opt out of this arbitration provision defined in Section 13(B). In this case, Customer must notify Google as set forth below within 30 days of the first acceptance date of any version of these Terms containing such arbitration provision. Notice to Google under this subsection must be submitted via webform available at adwords.google.com/nav/arbitration. An opt-out notice does not revoke or otherwise affect any previous arbitration agreement between the parties.

D) Future changes to Dispute Resolution Agreement. If Google makes any changes to the arbitration provision, Customer or Advertiser may reject any such change by notifying Google via webform as set forth in Section 13(F) within 30 days of the change. It is not necessary to submit a rejection of the future change to this arbitration provision if Customer or Advertiser had properly opted out of arbitration in compliance with the requirements of Section 13(C). By rejecting a future change, Customer or Advertiser is agreeing that it will arbitrate any dispute in accordance with the language of this Dispute Resolution Agreement, as modified by any changes that Customer or Advertiser did not reject.

14      Miscellaneous. (a) These Terms are the parties’ entire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects. (b) Customer may not make any public statement regarding the relationship contemplated by these Terms (except when required by law). (c) Except as provided in Section 13, 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 or other address on file). Notifications to Google should be directed to Google's Legal Department at Av. Brigadeiro Faria Lima, 3477 18th floor, São Paulo, CEP: 04538-133. All other notices to Customer will be in writing and sent to an email address associated with Customer’s account. Notice will be treated as given on receipt, as confirmed by written or electronic means (as applicable). (d) Except for modifications to these Terms by Google under Section 12, any amendment must be agreed to by both parties and must expressly state that it is amending these Terms. (e) Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms. (f) If any provision of these Terms is found unenforceable, that provision will be severed and the balance of the Terms will remain in full force and effect. (g) Neither party may assign any of its rights or obligations under these Terms without the written consent of the other party, except to an affiliate 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. Any other attempt to transfer or assign is void. (h) Except as provided in Sections 11 and 13, 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) The parties agree that these terms do not imply the existence of any employment relationship with each other, their administrators, employees or contractors. (k) Sections 1 (last sentence only) and 8 through 14 will survive termination of these Terms. (l) Except for payment obligations, no party or its affiliates are liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

April 16, 2018