This Agreement (as defined below) is entered into by you, being either an advertising third party or an Advertiser and being either: (i) the party which accepts this Agreement online and is listed on the account you create; or (ii) being the entity identified as the “Bill To” on the Front Page (if any) of this Agreement which signs this Agreement (“Customer” / “You”) and Google Ireland Limited (registered number: 368047) with its registered office located at 1st and 2nd Floor, Gordon House, Barrow Street, Dublin 4, Ireland (“Google”).
1. Definitions
“Acceptance Date” means either: (i) the date on which
Customer accepts this Agreement online; or (ii) the acceptance date listed
on the signatory page (if any) of this Agreement;
“Advertiser” means the entity whose ads (whether created
by itself or by a third party on its behalf) are made available by Google
in accordance with this Agreement, which entity may be more particularly
detailed on the Front Page (if any) of this Agreement;
“AdWords Programme” means Google’s online auction based
advertising programme;
"Agreement" means these advertising terms and
conditions (including the Front Page and the signatory page if any), the
FAQs and the Editorial Guidelines;
"Creatives" means all ad content (including
without limitation any URLs, all contact information and/or other data
in the ad) which are subject to the Editorial Guidelines;
"Editorial Guidelines" means the Programme’s
(i) text ad editorial guidelines located at: https://adwords.google.co.uk/select/guidelines.html;
(ii) image ad editorial guidelines located at https://adwords.google.co.uk/select/imageguidelines.html;
and (iii) such other editorial guidelines relating to different types of
ads located at such URL(s) as made available to You from time to time;
“End Date” means the date (if any) on which the parties
agree this Agreement will terminate and all types of ads will cease to
be made available;
"FAQs" means the frequently asked questions
for the Programme (including without limitation, the policies and security
FAQs located at: https://adwords.google.co.uk/support/bin/topic.py?topic=26).
The AdWords Programme FAQs are currently located at: https://adwords.google.co.uk/support/;
"Google Property" means any website, application,
property and/or any other media owned, operated or provided by Google excluding
content pages on Google;
"Partner" means the third party owner and/or
operator of a Partner Property;
"Partner Property" means any website, application,
content, property or any other media owned, operated, or provided by a
Partner upon which Google places ads pursuant to a contractual agreement
as further described in the online advertising system and/or in the applicable
FAQs;
"Programme" means the different types of Google
advertising services each as may be more particularly detailed in the
online advertising system (including without limitation the AdWords Programme)
and which are made available by Google in accordance with this Agreement;
"Target" means any keyword, negative keyword,
category and/or other targeting mechanism; and
“Target Start Date” means any date(s) after the Acceptance
Date which is agreed by Google to be the date(s) on which the parties will
aim to make available the Customer’s ads in accordance with this Agreement.
For the avoidance of doubt, the Target Start Date may not be the same for
all types of ads.
2. Placement and targeting.
2.1 With regards to the AdWords Programme, Google shall
use reasonable endeavours to: (a) place Customer's ads on the Google Property;
and/or (b) having regard to the selections made by Customer (using the online
AdWords system and/or by sending an email to Google client services as applicable),
place Customer’s ads on (i) content pages on Google and Google Partners;
and (ii) search pages of Google’s Partners.
2.2 Customer may, using the online advertising system, purchase other types
of ads. Such ads shall be subject to this Agreement and Google shall use
reasonable endeavours to make such ads available on such media and in such
manner as more particularly detailed in the online advertising system.
2.3 Unless expressly provided otherwise, Customer acknowledges that Google
does not and cannot guarantee: (i) the placement, positioning or the timing
of delivery of any ad, or (ii) the number (if any) of any impressions, publications,
conversions or clicks on any ad whether on any Partner Property or Google
Property or content pages on Google or sections of such properties.
3. Creatives and positioning
3.1 Customer shall: (i) if requested, submit Creatives for the AdWords Programme
to Google at least three (3) business days prior to the applicable Target
Start Date; (ii) submit Creatives for all other types of ads in accordance
with such due date as may be set out in the online advertising system or
as otherwise communicated by Google; and (iii) ensure that the language
of Targets, Creatives, targeting and destination pages is consistent.
3.2 Customer acknowledges and agrees that: (i) the positioning of ads on
a Google Property, content pages on Google, or any Partner Property (if applicable)
is at Google's and/or Partner's sole discretion respectively; (ii) Google
may offer the same Target to more than one advertiser; and (iii) Customer’s
ads may not be displayed if for a given Target there are more advertisers
or ads than available display positions or if Customer’s ads do not meet
applicable click-through thresholds.
3.3 For certain types of ads such as the AdWords Programme, upon campaign
posting by Google, Google may send Customer an email notifying Customer it
has 72 hours (the "Modification Period") to modify
keywords and settings as posted and/or to make any other corrections. The
campaign (as initially posted or as modified by Customer) is deemed approved
by Customer at the end of the Modification Period and Google is only liable
to Customer for discrepancies if Customer can certify by contemporaneous
documentary evidence that Google posted ads not approved by Customer.
3.4 Customer is solely responsible for all: (i) Targets; (ii) Creatives generated
by or for Advertiser (at Advertiser’s request); (iii) content on the domain
or landing page reached by clicking on the Creative URLs; and (iv) advertised
services and products (together the "Advertiser Services").
3.5 Unless otherwise specified, Google and/or any Partner shall have the
right at any time to reject, or remove any ad, Creative and/or Target for
any or no reason. In addition, Google may modify the size and/or format
of ads (i) to the extent reasonably required to comply with the technical
specifications and/or policies related to any Google Property or any Partner
Property (including without limitation modifying image ads in the manner
set out in this Agreement); and/or (ii) where Customer has authorised Google
to optimise campaign performance generally.
3.6 Customer grants Google permission to utilise an automated software programme
to retrieve and analyze websites associated with the Advertiser Services
to enable Google to evaluate ad quality and serving purposes. Customer
may expressly opt out of such evaluation in the manner specified by Google.
4. Partner Properties. Even if Customer's ad(s) are placed on Partner Properties, Customer agrees to direct to Google any communication regarding Customer's ad(s) on any Partner Property(ies). In addition, if Customer’s ads are placed on Partner Properties, Customer acknowledges and agrees that the placement of such ads shall provide Partner(s) with access to the content of ads, including (without limitation) any images and any URL(s), any contact or other information that can be obtained through such URL(s), as well as data regarding queries or clicks.
5. Prohibited uses. Customer shall not, and shall not allow any third party to: (i) fraudulently use the Programme, including but without limitation to the foregoing generality, Customer shall not and shall not allow any third party to generate fraudulent or otherwise invalid impressions of or fraudulent or otherwise invalid clicks on Customer's ad(s) or third-party ad(s), including but not limited to using robots or other automated query tools and/or computer generated search requests, and/or the fraudulent use of other search engine optimisation services and/or software; (ii) use any automated means, form of scraping or other such data extraction methods to access, query or otherwise collect and use Google advertising related information from any Google Property unless expressly permitted by Google in writing;(iii) advertise substances, services, products or materials which contravene applicable laws and regulations in any country in which Customer’s ads are displayed, placed or otherwise made available ; (iv) violate any technical specifications, the Editorial Guidelines and/or any policy in particular but without limitation, the Google Privacy Policy (www.google.co.uk/privacy.html) and the Trademark Guidelines (www.google.co.uk/permissions/guidelines.html) posted on any Google Property, as revised from time to time; (v) engage in any other illegal or fraudulent business practice under the laws of any state or country where an ad is made available; (vi) include links to any website(s) as part of Customer's ad, unless the content found at such site(s) is relevant to Customer's Target(s) and/or Creatives; and/or (vii) run multiple ads linking to the same or similar site on the same search results page.
6. Payment, pricing and reporting. If required, Customer shall, on the Google Advertising Agreement Front Page (if any) or in the online advertising system specify a maximum amount of money it wishes to spend on ads (the “Agreement Budget”). For the avoidance of doubt, by indicating an Agreement Budget, Customer is not committing to spending the Agreement Budget. Customer is merely notifying Google that it does not wish to spend more than the Agreement Budget. Customer is and shall remain solely liable to pay sums incurred up to the amount of the Agreement Budget only. Customer shall pay (or procure that the applicable third party pays) Google in accordance with the pricing model applicable to the type of ads selected by Customer using the online advertising system. Google and Customer shall mutually agree the method of payment and record their agreement either on the Google Advertising Agreement Front Page (if any) or in the online advertising system. All sums stated in this Agreement are exclusive of VAT unless stated otherwise. Customer shall pay the sums (including (if applicable) VAT and any other applicable taxes or charges imposed by any government entity) in the manner dictated by the method of payment agreed between the parties. Unless expressly provided, no invoices shall be sent. 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. Google may change its minimum pricing at any time. Charges shall be calculated solely based on records maintained by Google. Google shall provide Customer with password-protected access to 24/7 online reporting information so that Customer may monitor its campaign. Refunds (if any) are at the discretion of Google and only in the form of advertising credit for Google Properties.
7. Representations and warranties. Customer represents and warrants that (i) all of the information provided by Customer to Google is complete, correct and current; (ii) it has all necessary rights to permit and hereby grants Google and any Partners all such rights which are necessary for Google and any Partner(s) to (as applicable) use, host, cache, route, store, copy, modify, distribute, reformat, reproduce, publish, display, transmit and distribute Customer's ad(s) (including any Targets and all Creatives) ("Use"); and (iii) such Use in accordance with this Agreement, the ads (including without limitation any Targets and Creatives) and the websites and/or landing pages linked from Customer ads (including without limitation Advertiser Services therein) shall not: (a) violate or encourage violation of any law or applicable regulation or code of practice (including without limitations the CAP Code in the UK and any equivalent advertising standards code of practice in any other jurisdiction); (b) infringe any intellectual property rights of any third party or contain any material which may be harmful, abusive, obscene, threatening or defamatory. Each party waives its rights against the other in respect of warranties and representations (whether written or oral) not expressly set out or referred to in this Agreement. Nothing in this clause limits or excludes either party’s liability for fraud.
8. Indemnity. Customer shall indemnify and defend Google, its agents, affiliates, directors, officers, employees and Partners (“Google Indemnified Persons”) from and against any claims, losses, liabilities, expenses, damages and settlement amounts (including legal fees and costs) incurred by any Google Indemnified Person(s) arising out of Customer's breach of clauses 3.3, 5 and/or 7 of these advertising terms and conditions. These indemnification obligations shall exist only if Google: (a) promptly notifies the Customer of any claim; (b) provides Customer with reasonable information and cooperation in defending the claim; and (c) gives Customer full control and sole authority over the defence and settlement of such claim. The Google Indemnified Persons may join in the defence with counsel of its choice at its or their own expense.
9. Limitation of liability. 9.1 Nothing in this clause
9 shall limit liability for death or personal injury caused by a party’s
negligence.
9.2 Other than the payment obligations set forth in clause 6, indemnity obligations
set forth in clause 8 and/or a breach of clause 10 (Confidentiality): (i)
each party’s liability to the other shall be limited to the amount paid or
payable by Customer to Google under this Agreement; (ii) neither party shall
be liable in contract, tort (including, without limitation, negligence),
for pre-contract or other representations (other than fraudulent misrepresentations)
or otherwise arising out of or in connection with this Agreement for any
economic losses (including, without limitation, loss of revenues, profits,
contracts, business or anticipated savings); any loss of goodwill or reputation;
or any special, indirect or consequential losses in any case, whether or
not such losses were within the contemplation of the parties at the date
of this Agreement, suffered or incurred by that party arising out of or in
connection with the provisions of, or any matter under, this Agreement.
10. Confidentiality. 10.1 Subject to clauses 10.2 and 10.3
below, during the term of this Agreement and for a period of two years following
the termination of this Agreement, neither party shall disclose Confidential
Information of the other party to any third party without prior written (including
in an email) consent except as provided herein. Any Customer passwords shall
be treated as Confidential Information of the Customer and Customer is solely
responsible for protecting the secrecy of such passwords use and/or a third
party’s use of any Customer online accounts. "Confidential
Information" includes (i) ads (including Targets and Creatives),
prior to publication; (ii) the terms of this Agreement; and (iii) any other
Programme information or access to technology prior to public disclosure
provided by Google to Customer and identified at the time of disclosure in
writing as confidential and/or proprietary. It does not include information
that has become publicly known through no breach by a party, or has been
(a) independently developed without access to the other party's Confidential
Information; (b) rightfully received from a third party; or (c) required
to be disclosed by law or by a governmental authority.
10.2 If the Customer is an advertising third party, Customer authorises Google
to grant any Advertiser which is a client of Customer or any subsequent advertising
third party appointed by the Advertiser access to and a right to use the
online account relating to Advertiser’s ads.
10.3 Customer acknowledges and agrees that Google may share Confidential
Information of Customer: (a) with any advertising third party appointed by
Customer or with any Advertiser which is a client of Customer as applicable;
or (b) with any holding company of Customer or with any subsidiary
company of Customer or with any subsidiary company of Customer’s holding
company. 10.4 Customer acknowledges and agrees that any 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 and/or servicing Customer’s account.
11. Term Termination.
11.1 Subject to clause 11.3 below, this Agreement shall commence on the
Acceptance Date and shall continue either until terminated or until the
End Date is reached.
11.2 This Agreement may be terminated: (a) by Google, which shall be entitled
to suspend or terminate the Programme (or part of it) and/or terminate this
Agreement, with immediate effect at any time upon email notice to Customer;
(b) by Customer: (i) using, if
available, the online advertising system to cancel any ad; or (ii) providing
written notice (including without limitation email notice) to Google requesting
termination of this Agreement (or part of it). Ads forming part of the AdWords
Programme cancelled online will stop serving shortly after cancellation.
All other ads may be subject to Google’s ability to re-schedule or replace
reserved inventory or cancel ads already in production. Customer
understands that cancelled ads may be published despite cancellation if cancellation
of those ads occurs after any applicable commitment date as notified in advance
to Customer by the Partner or Google and Customer shall pay Google for such
published ads. Upon expiration or termination of this Agreement for any
reason (i) Customer shall remain liable for any outstanding amounts; (ii)
each party shall upon request return Confidential Information of the other;
and (iii) clauses 1 (Definitions), 6 (Payment), 8 (Indemnity), 9 (Limitation
of Liability), 10 (Confidentiality), 11 (Term and Termination), 15 (Miscellaneous)
and 16 (Law and Jurisdiction) shall survive.
11.3 If an End Date has been specified, Customer may, subject to Google’s
prior email approval, extend this Agreement by email for additional periods
of 90 days or such other period as agreed by Google in writing.
12. Assignment. The parties shall only be entitled to assign,
delegate or otherwise transfer their rights and/or obligations under this
Agreement with the written consent of the other (such consent not to be unreasonably
withheld or delayed) except that Google shall be entitled to assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without consent to a subsidiary or holding company (as defined in section
736 of the Companies Act 1985) of Google or a purchaser of all or a substantial
part of the assets of Google.
13. Rights of third parties. Nothing in this Agreement
shall create or confer any rights or other benefits whether pursuant to
the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour
of any person other than the parties to this Agreement.
14. Force majeure. Other than in respect of payment obligations, neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, terrorism, civil commotion or industrial dispute.
15. Miscellaneous. This Agreement represents the entire terms agreed between the parties in relation to its subject matter and supersedes all previous contracts, representations or arrangements of any kind between the parties relating to its subject matter. For the avoidance of doubt, Customer acknowledges and agrees that these advertising terms and conditions include the FAQs and the Editorial Guidelines which are incorporated by reference, and the FAQs and Editorial Guidelines may be modified by Google at any time to reflect changes in how Google makes the Programme generally commercially available. No addition to or modification of these advertising terms and conditions shall be binding on the parties unless made by a written instrument and signed or accepted online by a duly authorised representative of each of the parties. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement. Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. Unless otherwise expressly provided, any notices shall be sent to the addresses set forth in this Agreement (or detailed in the online advertising system) with a copy to the legal department via (a) confirmed facsimile, with a copy sent via first class or air mail; or (b) courier services, and shall be deemed given upon receipt. Any translation of the English language, English law and court Agreement (the “Original Agreement”) is provided for convenience only and Customer agrees that in the event of a conflict between the translated version and the Original Agreement, the Original Agreement prevails.
16. Law and jurisdiction. This Agreement shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts in respect of any dispute or matter arising out of or connected with this Agreement.