Advertising Program Terms
These Advertising Program Terms (“Terms”) are entered into by Google Asia Pacific Pte. Ltd. (“Google”) and the entity executing these Terms or that accepts these Terms electronically (“Customer”). These Terms govern Customer’s participation in Google’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 individual arbitration to resolve disputes rather than jury trials or class actions.
1 Programs. Customer authorizes Google and its affiliates 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 or its affiliates on behalf of Google 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 and its affiliates to use automated tools to format Ads. Google and its affiliates may also make available to Customer certain optional Program features 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 and its affiliates or Partners may reject or remove a specific Target, Ad, or Destination at any time for any or no reason. Google and its affiliates 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 (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 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, an
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 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 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 may suspend Customer’s permission to utilize that 3PAS provider and may suspend or void the effectiveness of the above 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 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’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 email@example.com (
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.
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 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 1.5% 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.
9 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, GOOGLE, ON BEHALF OF ITSELF AND ITS PARTNERS AND AFFILIATES, DISCLAIMS AND EXCLUDES ALL CONDITIONS, REPRESENTATIONS, GUARANTEES AND WARRANTIES, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY IMPLIED TERMS ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, WHICH ARE NOT EXPRESSLY SET OUT IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW AND OTHER THAN EXPRESSLY SET OUT IN THIS AGREEMENT, THE PROGRAMS AND GOOGLE, ITS AFFILIATES’, AND PARTNER PROPERTIES ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS,” AND CUSTOMER USES THEM AT ITS (AND ANY ADVERTISER’S) OWN RISK AND NONE OF GOOGLE, ITS AFFILIATES OR ITS PARTNERS MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS. TO THE FULLEST EXTENT PERMITTED BY LAW, 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) NEITHER GOOGLE NOR CUSTOMER OR THEIR RESPECTIVE AFFILIATES MAY BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF 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, NEITHER GOOGLE NOR CUSTOMER OR THEIR RESPECTIVE AFFILIATES MAY 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 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. 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 DISPUTE RESOLUTION AGREEMENT.
A. Negotiation. In the event any dispute arises out of or in connection with these Terms (each, a “Dispute”), the parties will make good faith efforts to resolve the Dispute within 60 days of written notice of the Dispute from the other party. If the parties are unable or unwilling to resolve the Dispute in that time, the Dispute will be finally determined by arbitration administered by the International Centre for Dispute Resolution (“ICDR”) under its International Arbitration Rules (“Rules”). This agreement to arbitrate is intended to be broadly interpreted and, among other claims, applies to any claims brought by or against (i) Google, Google affiliates that provide the Programs to Customer or Advertiser, Google parent companies, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities and (ii) Customer or Advertiser, the respective affiliates and parent companies of Customer or Advertiser, and the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities.
B. Arbitration Procedures. The place of arbitration will be Santa Clara County, California. The arbitration will be before a tribunal of three arbitrators. The claimant(s) will select one arbitrator of the tribunal in accordance with the Rules, and the respondent(s) will jointly select the second arbitrator in accordance with the Rules. If the parties fail to agree on the third arbitrator (the “Chairman”) within 20 days of the confirmation of the second, the ICDR will appoint the Chairman in accordance with the Rules. The arbitration will be conducted in English. Except as may be otherwise required by law, the existence, contents or results of any arbitration, including any documents or evidence produced, will be strictly confidential. The decision of the arbitrators will be final and binding and judgment upon any awards rendered by the arbitrators may be entered in any court of competent jurisdiction thereof. The arbitrators will not be bound by rulings in other arbitrations in which Customer or Advertiser is not a party. The arbitrators will
C. No Class Arbitration. CUSTOMER, ADVERTISER, AND GOOGLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Google, Customer and Advertiser agree that, by entering into this arbitration agreement, they are waiving their respective rights to a trial by jury or to participate in a class or representative action. Unless all affected parties agree otherwise in writing, the arbitrators may not preside over any form of a representative or class proceeding. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
14 Miscellaneous. (a) ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, EXCEPT TO THE EXTENT THAT CALIFORNIA LAW IS CONTRARY TO OR PREEMPTED BY FEDERAL UNITED STATES LAW. (b) EXCEPT AS PROVIDED IN SECTION 13, SOLELY IN THE EVENT THAT SECTION 13 IS NOT ENFORCED AS TO A PARTICULAR CLAIM OR DISPUTE, ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THESE COURTS. (c) Customer will not seek in any proceeding filed during the period of time these Terms are in effect, and for one year after any termination of these Terms, an injunction based on patent infringement in connection with the Programs. (d) These Terms are the parties’ entire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects. (e) Customer may not make any public statement regarding the relationship contemplated by these Terms (except when required by law). (f) All notices of termination or breach, or under Section 13, 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). The email address for notices being sent to Google’s Legal Department is firstname.lastname@example.org. All other notices to Customer will be in writing and sent to an email address associated with Customer’s account. All other notices to Google will be in writing and addressed to Customer’s primary contact at Google or other method made available by Google. Notice will be treated as given on receipt, as confirmed by written or electronic means. These notice requirements do not apply to legal service of process, which is instead governed by applicable law. (g) 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. Neither party will be treated as having waived any rights by not exercising (or by delaying the exercise of) any rights under these Terms. Except as provided in Section 13(C), 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. (h) Neither party may assign any part of these Terms without the written consent of the other party save that (A) Google may assign all or part of its rights and/or obligations under these Terms to an affiliate if Google has notified Customer of the assignment, and (B) Customer may assign all of its rights and obligations under these Terms to an affiliate but only where (I) the assignee agrees in writing to be bound by these Terms, (II) Customer remains liable for obligations under these Terms if the assignee defaults on them, and (III) Customer has notified Google of the assignment. Any other attempt to transfer or assign is void. (i) Except as expressly listed in Sections 11 and 13, there are no third-party beneficiaries to these Terms. (j) These Terms do not create any agency, partnership or joint venture among the parties. (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. (m) If these Terms are made available in English and any other language, the English language text will prevail in the event of a conflict.
September 1, 2017