Google Ads Terms and Conditions: Google LLC Advertising Campaign Terms

     These Google LLC Advertising Campaign Terms and Conditions (the "Terms") are entered into by Google LLC ("Google") and the entity executing these Terms or accepting these Terms electronically ("Customer"). These Terms govern Customer's participation in Google's advertising campaigns and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that reference, or are covered by, these Terms (collectively, the "Campaigns"). Please read these Terms carefully. They require binding individual arbitration to resolve disputes, in place of a jury trial or a class action.

1      Campaigns. Customer authorizes Google, CyberPerformance and its affiliates to place Customer's advertising materials, production data (feed data) and technology (collectively, the "Ads" or the "Creative") on any content or property (individually, a "Property") provided by Google or its affiliates on behalf of Google or, where applicable, on behalf of a third party (a "Partner"). Customer is solely responsible for all of the following: (i) the Ads, (ii) traffic or ad targeting decisions (for example, keywords) ("Targets"), (iii) the destinations the Ads send visitors to (for example, landing pages, mobile apps) as well as the associated URLs, waypoints and redirects ("Destinations"), and (iv) the products and services promoted on the Destinations (collectively, the "Services "). The Campaign is an advertising platform on which the Partner authorizes Google, CyberPerformance and its affiliates to use automated tools to format Ads. Google and its affiliates may also make certain optional Campaign features available to Customer to help select or generate the Targets, the Ads or the Destinations. Customer is not required to authorize the use of these optional features and may, where applicable, opt in to or opt out of using them. However, if Customer does use these features, Customer will be solely responsible for the Targets, the Ads and the Destinations. Google and its affiliates or its Partners may reject or remove a specific Target, Ad or Destination at any time, for one reason or another. Google and its affiliates may modify or cancel the Campaigns at any time. Customer acknowledges that Google or its affiliates may take part in Campaign auctions to support their own products and services. Certain Campaign features are identified as " Beta " or as otherwise unsupported or confidential ("Beta Features"). Customer may not disclose any information from the Beta Features, or the terms or the existence of any non-public Beta Feature.

2      Policies. Customer is solely responsible for its use of the Campaigns (for example, access to and use of the accounts and of the usernames and passwords that protect the Campaigns) ("Use"). Use of the Campaigns is subject to Google's policies available at google.com/ads/policies and to any other policies Google makes available to Customer, including Partner policies and, where applicable, Google's EU User Consent Policy available at privacy.google.com/businesses/userconsentpolicy (in each case, as amended from time to time, the "Policies"). Customer also authorizes Google to modify the Ads as described in the Policies. In connection with the Campaign, Google will comply with the Google Privacy Policy available at google.com/policies/privacy(as amended from time to time). To the extent that Use of the Campaign falls within their scope, Google and Customer will comply, where applicable, with (i) the Google Ads Controller-Controller Data Protection Terms available at privacy.google.com/businesses/controllerterms; or (ii) the Google Ads Data Processing Terms at privacy.google.com/businesses/processorterms (together, the "EU Data Handling Rules"). Google will not modify the EU Data Handling Rules except as expressly authorized in the EU Data Handling Rules. Customer will not, and will not authorize any third party to, do any of the following: (i) generate fraudulent or otherwise invalid automated impressions, surveys, clicks or conversions, (ii) conceal conversions for the Campaigns when they are required to be disclosed, (iii) use any automated means to scrape or extract data in order to access, request or otherwise collect Google advertising information from any Property, unless Google has expressly authorized it, or (iv) attempt to interfere with the proper functioning of the Campaigns. Customer will send communications about Ads on Partner Properties, in accordance with these Terms, to Google only.

3      Display Ads. (a) Customer will not supply Ads that contain, or that link to, malware, spyware or unwanted software or any other malicious code, and will not deliberately breach or circumvent any Campaign security measure. (b) Customer may use an ad server for the sole purpose of serving or tracking Ads within Campaigns that allow third party display advertising, and only if Google has authorized that ad server to participate in the Campaign. Google will execute Customer's ad server tags so that they are functional. (c) For online impressions of Display Ads billed on a CPM or vCPM basis ("Display Ads"), if Google's applicable impression count ("IC") for a Campaign exceeds the third party ad server's ("3PAS") IC by more than 10% over the billing period, Customer will facilitate reconciliation efforts between Google and the 3PAS. If the discrepancy is not resolved, Customer's sole remedy is to make a claim within 60 days of the invoice date (the "Claim Period"). If Google considers the claim valid, Google will provide Customer with advertising credits equal to (90% of Google's IC minus the 3PAS IC) multiplied by the campaign's average CPM or vCPM (as applicable) reported by Google over the billing period. Any advertising credits issued must be used by Customer within 60 days of issuance (the "Expiry Date"), and Google may suspend Customer's authorization to use that 3PAS provider and suspend or cancel the effectiveness of the discrepancy resolution terms in this Section for that 3PAS provider. Measurements from the 3PAS whose ad server tags are supplied to Google will be used in the discrepancy resolution calculations above. Google may require discrepancy records to be provided directly by the 3PAS to Google. Customer will not be credited for discrepancies caused by the 3PAS failing to serve the Ads.

4      Testing. Customer authorizes Google, CyberPerformance and its affiliates to run regular tests that may affect Customer's Use of the Campaigns, including Ad formatting, Targets, Destinations, quality, ranking, performance, pricing and bid adjustments. To ensure the timeliness and validity of test results, Customer authorizes Google to run these tests without notice to, or compensation for, Customer.

5      Ad cancellation. Unless a Policy, the Campaign user interface or a contract covering these Terms (an "IO") states otherwise, either party may cancel any Ad at any time before the next auction or the first Ad placement, but if Customer cancels an Ad after a commitment date indicated by Google (for example, a reserved campaign), Customer owes any cancellation fee Google communicates to Customer and the Ad may still run. Cancelled Ads will generally stop serving within 8 business hours, or as described in the Policy or the IO, and Customer remains obligated to pay all charges arising from served Ads (for example, conversion-based charges). Customer must cancel Ads (i) online through Customer's account if that functionality is available, (ii) if that functionality is not available, by giving notice to Google by email to Customer's account representative or (iii) if that functionality is not available and Customer has no account representative, by giving notice to Google by email at ads-support@google.com. Customer will not be released from any payment obligation for Ads that Customer did not submit, or submitted after the deadline indicated by Google. Google will not be bound by an IO supplied by a Customer.

6      Warranties, rights and obligations. Customer warrants (a) that it holds, and hereby grants to Google, CyberPerformance and its affiliates and its Partners, rights in the Ads, the Destinations and the Targets so that Google, its affiliates and its Partners can run the Google Campaigns (including, in the case of production data, after Customer stops using the Campaigns) and (b) that all information and authorizations Customer provides are complete, correct and current. Customer authorizes Google and its affiliates to automate the retrieval and analysis of, and to create test credentials to access, the Destinations for the purposes of the Campaigns. By giving Google a telephone or mobile number in connection with the Campaigns, Customer authorizes Google, its affiliates and their agents to call the phone numbers provided (standard call rates may then apply), including through an automatic telephone dialing system, for the purposes of the Campaigns. Google will not, however, rely on this authorization to place automated calls for marketing purposes. 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 (an "Advertiser"), and any reference to Customer in these Terms applies equally to the Advertiser, where applicable. If for any reason Customer has not bound an Advertiser to these Terms, Customer will be responsible for performing any obligation the Advertiser would have had under these Terms had the Advertiser been bound. If Customer uses a Campaign on its own behalf, it will be deemed to be both Customer and Advertiser. Customer will provide the Advertiser with reporting data at least once a month, disclosing the absolute dollars spent on Google and the performance (at a minimum, cost and a minimum number of user clicks and impressions on that Advertiser's account) in a reasonably visible location. Google may, at an Advertiser's request, share Advertiser-specific information with that Advertiser.

7      Make-goods. For reserved Display Ads, Google will deliver any agreed total number of Display Ads by the end of the campaign; however, if Google does not, Customer's sole remedy is to make a claim during the Claim Period. If Google confirms that the claim is accurate, it will not charge Customer for the undelivered Display Ads or, if Customer has already paid, at Google's reasonable discretion, Google will provide (i) advertising credits, which must be used before the Expiry Date, (ii) placement of the Display Ads in a location Google considers comparable within 60 days of Google confirming that the claim is accurate or (iii) an extension of the campaign duration. Google cannot guarantee that any auction Ad will be delivered and, as a result, make-goods do not apply to auction Ads.

8      Payment. Customer will pay all charges incurred in connection with a Campaign, using a payment method Google has approved for that Customer (as amended from time to time), within a commercially reasonable period indicated by Google (for example, in the Campaign user interface or the IO). Late payments bear interest at 1.5% per month (or the highest rate permitted by law, if lower). Charges are exclusive of taxes. Customer will pay (i) all taxes and other government charges and (ii) the 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 for the Campaign concerned (for example, clicks, impressions or conversions). Any portion of the charges not disputed in good faith must be paid in full. Neither party may offset any payment due under these Terms against any other payment made under these Terms. Google may, at its sole discretion, extend, review or revoke credit at any time. Google is not required to serve any Ad above any credit limit. If Google does not serve Ads against the Targets or Destinations selected, Customer's sole remedy is to make a claim for advertising credits during the Claim Period. Google will then issue the credits once the claim is validated, and they must be used before the Expiry Date. Customer understands that third parties may generate impressions or clicks on Customer's Ads for prohibited or improper purposes and, in that case, Customer's sole remedy is to make a claim for advertising credits during the Claim Period. Google will then issue credits once the claim is validated, and they must be used before the Expiry Date. TO THE FULLEST EXTENT PERMITTED BY LAW, (A) CUSTOMER WAIVES ALL CLAIMS RELATING TO ANY CAMPAIGN CHARGES UNLESS A CLAIM IS MADE DURING THE CLAIM PERIOD AND (B) THE ISSUANCE OF ADVERTISING CREDITS (IF ANY) IS AT GOOGLE'S REASONABLE DISCRETION AND, IF ISSUED, THEY MUST BE USED BEFORE THE EXPIRY DATE.

9      Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, GOOGLE, ON ITS OWN BEHALF AND ON BEHALF OF ITS PARTNERS, CYBERPERFORMANCE AND AFFILIATES, DISCLAIMS ALL IMPLIED, STATUTORY OR OTHER WARRANTIES, INCLUDING NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AS WELL AS ANY WARRANTIES ARISING FROM TRADE USAGE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE CAMPAIGNS AND THE GOOGLE AND PARTNER PROPERTIES ARE PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS", AND CUSTOMER USES THEM AT ITS OWN RISK. GOOGLE, CYBERPERFORMANCE, ITS AFFILIATES AND ITS PARTNERS MAKE NO WARRANTY IN CONNECTION WITH THE CAMPAIGNS OR THE RESULTS OF THE CAMPAIGNS. GOOGLE DOES NOT 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 AND REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) GOOGLE, CYBERPERFORMANCE,  CUSTOMER AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE UNDER THESE TERMS, OR ARISING OUT OF OR IN CONNECTION WITH 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) EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS UNDER THESE TERMS, GOOGLE, CYBERPERFORMANCE, CUSTOMER AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE FOR DAMAGES UNDER THESE TERMS, OR ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THESE TERMS, FOR ANY EVENT OR SERIES OF RELATED EVENTS DETERMINED IN THE AGGREGATE TO EXCEED THE AMOUNT PAYABLE TO GOOGLE BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS PRECEDING THE DATE OF THE ACTIVITY THAT ORIGINALLY GAVE RISE TO THE CLAIM.

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

12      Changes to the Terms. Google may make non-material changes to these Terms at any time, without notice; however, if the changes to these Terms are material, Google will give notice. The Terms will be available at www.google.com/ads/terms. Changes to the Terms will not apply retroactively and will take effect 7 days after they are posted. Changes made for legal reasons, however, take effect immediately upon notice. Either party may terminate these Terms at any time by giving notice to the other party, but (i) campaigns not cancelled under Section 5 and new campaigns may still be run and booked and (ii) continued use of the campaign is, in each case, subject to Google's terms and conditions then in effect for Campaigns (available at www.google.com/ads/terms). Google may suspend Customer's ability to take part in the Campaigns at any time. In all cases, running any Customer campaign after termination is at Google's sole discretion.

13      Dispute resolution agreement.

     A. Negotiation. In the event of a dispute arising out of or in connection with these Terms (each, a "Dispute"), the parties will make a good faith effort to resolve the Dispute within 60 days of the written notice sent by the other party raising the Dispute. If the parties are unable or unwilling to resolve the Dispute within that period, the Dispute will be finally settled by arbitration administered by the International Center for Dispute Resolution (the "ICDR") under its International Arbitration Rules (the "Rules "). This arbitration agreement is meant to be interpreted broadly and applies, in particular, to all claims brought by or against (i) Google, CyberPerformance, the Google affiliates that provide the Campaigns to Customer or to the Advertiser, Google's parent companies and the respective officers, directors, employees, agents, predecessors, successors and assigns of those entities and (ii) Customer or the Advertiser, the respective affiliates and parent companies of Customer or the Advertiser, and the officers, directors, employees, agents, predecessors, successors and assigns of those entities.

     B. Arbitration procedures. The arbitration will take place in Santa Clara County, California. The arbitral tribunal will be made up of three arbitrators. The claimant(s) will select one arbitrator under the Rules and the respondent(s) will select the second arbitrator under the Rules. If the parties cannot agree on the third arbitrator (the "Chair") within 20 days of the confirmation of the second, the ICDR will appoint the Chair under the Rules. The arbitration will be held in English. Unless the law provides otherwise, the existence, content and results of any arbitration proceeding, including any documents or evidence produced, will be strictly confidential. The arbitral award will be final and binding on the parties, and judgment enforcing the award may be entered by any court of competent jurisdiction. The arbitrators will not be bound by decisions rendered in other arbitrations to which Customer or the Advertiser is not a party. The arbitrators may grant conservatory measures or declaratory, interim or final relief, solely in favour of the party seeking that relief and only to the extent necessary to provide the remedy justified by that party's claim, without affecting other users or other Google Customers or Advertisers. Any interim measures ordered by the arbitrators may be enforced by a court of competent jurisdiction. These Terms do not prevent a party from seeking any individualized interim or preliminary relief from a court of competent jurisdiction, and any such request to a court will not be considered incompatible with the arbitration agreement or a waiver of the right to arbitrate.

     C. No class arbitration. CUSTOMER, ADVERTISER AND GOOGLE AGREE THAT EACH OF THEM MAY BRING CLAIMS AGAINST THE OTHERS ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF IN, OR A PARTICIPANT IN, ANY CLASS ACTION, REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL PROCEEDING. Google, Customer and Advertiser agree that, by entering into this arbitration agreement, they waive their respective rights to a jury trial or to any class or representative action. Unless all affected parties agree otherwise in writing, the arbitrators may not preside over representative proceedings or class actions. If a court decides that applicable law prevents any of the limitations in this article from being enforced against a given claim, that claim (and only that claim) must be severed from the arbitration and brought before a court.

14      Miscellaneous. (a) ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE CAMPAIGN TERMS WILL BE GOVERNED BY THE LAW OF THE STATE OF CALIFORNIA, EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES, EXCEPT WHERE CALIFORNIA LAW IS CONTRARY TO UNITED STATES FEDERAL LAW OR WHERE UNITED STATES FEDERAL LAW PREVAILS OVER CALIFORNIA LAW. (b) EXCEPT AS PROVIDED IN SECTION 13, AND ONLY WHERE SECTION 13 IS NOT ENFORCED FOR A CLAIM OR DISPUTE, ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE CAMPAIGNS WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, UNITED STATES. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. (c) Customer will not seek any injunctive relief for patent infringement in connection with the Campaigns in any proceeding brought during the term of these Terms, or for one year after their termination. (d) These Terms are the entire agreement between the parties in relation to their subject matter and supersede any prior or current agreement on that subject matter. (e) Customer may not make any public statement about the relationship contemplated by these Terms (unless 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 the other party has no known Legal Department, to the other party's primary contact or to any other address on record). The email address for notices to be sent to Google's Legal Department is legal-notices@google.com. All other notices to Customer must be in writing and sent to an email address associated with Customer's account. All other notices to Google must be in writing and addressed to Customer's primary contact at Google, or delivered by any other means Google offers. Notices will be deemed given when they are received, which may be confirmed by a written or electronic acknowledgement of receipt. These notice requirements do not apply to legal service of process, which is instead governed by applicable law. (g) Except for changes Google makes to these Terms under Section 12, any amendment must be agreed to by both parties and must expressly state that it amends these Terms. No party will be deemed to have waived a right by failing to exercise (or by delaying the exercise of) a right 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) No party may assign any part of these Terms without the written consent of the other party, except that (A) Google may assign all or part of its rights and/or obligations under these Terms to a CyberPerformance and an affiliate if Google informs Customer of the assignment, and (B) Customer may assign all of its rights and obligations under these Terms to CyberPerformance and an affiliate, but only if (I) the assignee agrees in writing to be bound by these Terms, (II) Customer remains liable for the obligations under these Terms if the assignee breaches them and (III) Customer has notified Google of the assignment. In addition, Google may assign any debt Customer owes it to a third party without Customer's consent. Any other attempted transfer or assignment is null and void. (i) Except as provided 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 between the parties. (k) Sections 1 (last sentence only) and 8 through 14 will survive termination of these Terms. (l) Except in relation to payment obligations, no party, nor CyberPerformance and its affiliates, is liable for any failure or delay in performance to the extent it is caused by circumstances beyond its control.

The client agrees that all incoming and outgoing video, telephone or other calls may be recorded and may be used in court as evidence of any kind. The client also agrees that a voice or video notice is not required for the recordings to be valid in court as potential evidence in, but not limited to, a lawsuit, an arbitration, and so on.

May 21, 2023