TERMS AND CONDITIONS
DP ONLINE MARKETING LIMITED
TERMS AND CONDITIONS FOR THE MANAGEMENT OF GOOGLE ADS / PPC ADVERTISING
The definitions and rules of interpretation in this clause apply in these terms and conditions.
“Contract” means the Supplier’s proposal and the Customer’s acceptance of it under condition 3.
“Customer” means the person, firm or company who purchases Services from the Supplier.
“Customer’s Project Manager” means the Customer’s manager for the Services appointed in accordance with condition 5.1.1.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Proposal” means the proposal for the Services to be provided by the Supplier to the Customer as more particularly described in condition 3.
“Services” means assisting clients with the complexity of building and managing Google Ads accounts (or other pay per click platforms) more particularly described in appendix 1.
“Supplier” means DP Online Marketing Limited.
“Supplier’s Project Manager” means the Supplier’s manager for the Project, appointed in accordance with condition 4.3.
“Term” means the term of the Contract as set out in clause 10.1.
“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Contract.
1.3 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to “writing” or “written” includes faxes and email.
1.9 References to clauses and Schedules are to the clauses and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
2.1.1 apply to and be incorporated in the Contract; and
2.1.2 prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
3. EFFECT OF PURCHASE ORDER
The Customer’s purchase order constitutes an offer by the Customer to purchase the Services specified in it on these conditions; accordingly, the Supplier’s proposal sent by electronic means from the Supplier to the Customer, whether signed electronically or not by the Customer, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
4. SUPPLIER’S OBLIGATIONS
4.1 The Supplier shall use reasonable endeavours to manage and complete the Services in accordance in all material respects in accordance with the Proposal.
4.2 Any dates agreed between the Supplier and the Customer shall be estimates only and time shall not be of the essence of the Contract.
4.3 The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
4.4 Communication: This proposal includes communication as per the pricing table via the methods quoted. Where “fair usage” is stated, the supplier recognises that Customers will from time to time have queries and a ‘reasonable’ level of communication is accepted. The Supplier will deem what levels of communication fall under “fair usage” and reserves the right to quote the Customer for additional fees should they require levels of communication deemed outside the scope of the proposal by the Supplier. An example of this would be additional meetings to discuss performance outside of the monthly meeting covered in the quotation or excessive phone call communication.
5. CUSTOMER’S OBLIGATIONS
5.1 The Customer shall:
5.1.1 co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Project Manager, who shall have the authority to contractually bind the Customer on matters relating to the Services; and
5.1.2 provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects.
5.2 The Customer shall ensure that conversion tracking is enabled and working correctly and make all and any changes to the pay per click website that the Supplier advises.
5.3 The Customer shall make all payments for pay per click advertising directly to the pay per click platform provider promptly and fully in accordance with the pay per click platform providers payment terms.
5.4 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct or indirect consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.5 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of six months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier.
5.6 Any consent given by the Supplier in accordance with condition 5.5 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, 20% of the annual remuneration to be paid by the Customer to such employee or sub-contractor.
5.7 In the case of a complaint or dispute, the customer shall provide the supplier notification of any such dispute in writing and provide a 31 day period to the supplier to respond. During this period, the customer shall make any and all due payments and the supplier will continue to provide services as detailed within the proposal/contract terms. If the client cancels their direct mandate, (or debit/credit card authorisation), removes the suppliers access to their advertising account, the supplier will not respond to any complaint or dispute until the client is within terms.
5.8. The client assumes all liability for any changes made by the Supplier to the Clients website. Any changes to the clients website are done so on the understanding the client has functioning back ups of the site that can be quickly restored by the Client should any issue occur. The Supplier accepts no liability whatsoever from any loss or damages caused to the Clients website for any reason.
5.9 The client assumes all liability for any policy violations and/or suspension of its Google Ads account. Should the client incur a policy violation/suspension, the suppliers fee will continue to be charged unless the clients cancels as detailed within this contract.
6. CHARGES AND PAYMENT
6.1 Prices for the provision of the Services are set out in the fees section of the proposal and are based on the your stated budget at the time of enquiry or if no budget is stated, the overall total daily budget x 30.4 (average days in a month) as configured in your PPC account. If your budget is increased by more than 50%, we reserve the right to re-quote for the continuation of our services based on the new budget.
6.2 The pricing model applicable to each Contract will be specified in the Supplier’s proposal, which will form the terms for this Contract. The full details of the pricing models are set out in the fees section.
6.2.1 The Contract is for a minimum term of one month (or 6 months if selected) which ‘rolls over’ monthly (or every 6 months for another 6 months if selected) automatically where the Customer will make monthly payments unless 31 days notice to cancel is provided. In short, invoices and payments will continue to be due monthly (or for another 6 months if selected) unless 31 days notice to cancel is provided. Any invoices that fall due within (including on the last day of) the notice period are payable and in this event, work for 30 days (or 6 months if selected) after the invoice date will be provided unless access to the advertising account is removed or at the request of the customer.
6.3 For payment of the prices by the Customer to the Supplier the Customer must pay the Supplier via the Supplier’s direct debit provider “GoCardless” or via recurring credit/debit card and the Customer shall not cancel its Direct Debit Mandate (or credit/debit card authorisation) for payment until both the term is completed and all payments due to the Supplier from the Customer have been made in full. The customer authorises the Supplier to debit their credit/debit card or bank account for any and all due payments as part of the contract.
6.3.1 Should the Customer cancel their Direct Debit Mandate (or debit/credit card authorisation) without first providing an alternative payment source, an administration charge equal to 2 x monthly payments will be charged in addition to any outstanding amounts.
6.3.2 The Customer shall not withhold any payments to the supplier for any reason.
6.4 Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
6.4.1 charge interest (and/or late fees) on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment; and
6.4.2 suspend all Services until payment has been made in full.
6.5 Time for payment shall be of the essence of the Contract.
6.6 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
6.7 We require payment to terms. Payment must be made on time, in full, and without any deduction, set off or counterclaim. In the event that an account is outstanding, we may refer the matter to our debt collection agents which will incur costs of 15% + vat. Any costs incurred to collect the debt will be added to the debt, plus VAT at the prevailing rate. You agree that you will be legally liable to pay us that surcharge in addition to any late fees, and that payment of the same can be enforced against you in court. You also agree to pay interest at the relevant reference rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998 and subsequent amendments, which interest is payable both after and before any judgment of the court and continues to accrue.”
6.8 OVERDUE ACCOUNTS
6.8.1. If payment of invoices is not made when due, we reserve the right to charge late payment fees on overdue amounts, these fees are calculated at the following banded rates. These fees will accrue daily from the due date until payment is made:
For invoices up to £500 ex VAT – £5.28 per day
For invoices from £501 up to £1,000 ex VAT – £12.22 per day
For invoices from £1001 + £10000 ex VAT – £32.80 per day
For invoices above £10,001 ex VAT – 5% per day
6.8.2 If payment of invoices is not made when due, we reserve the right to terminate or suspend performance of the services provided under this contract, at our absolute discretion. This includes suspension and locking of all supplier accounts within our control until full payment is made and an on-going payment plan is agreed. If the payment plan is not adhered to, then we reserve the right to terminate your account(s). We will also undertake legal proceedings to recover any outstanding debts.
6.8.3 We reserve the right to retain all work, materials, account login details, intellectual property and any other items in our possession relating to any matter until all invoices are paid in full.
6.8.4 Any queries in respect of an invoice must be raised within 7 days of the date of the invoice. After this date it will be deemed that the invoice has been accepted by the client.
6.8.5 The client agrees not to chargeback any payments for any reason ever.
6.8.6 Chargebacks – in the event of a fraudulent chargeback, as defined by the 2006 Fraud Act which states it is a crime to wrongfully charge back a payment, (i.e. a chargeback to recover fees previously charged under the terms of this contract) an initial administration fee of £1000 will be applied to the suppliers account for each charged-back invoice. Additionally, late fees will be added and back dated to the date of invoice and accrue daily until full payment is received (as per overdue late fees table above).
7. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights shall be owned by the Supplier. The Supplier hereby licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services as is envisaged by the parties. If the Supplier terminates the Contract under condition 10.1, this licence will automatically terminate.
8. CONFIDENTIALITY AND SUPPLIER’S PROPERTY
8.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
8.2 All materials, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
8.3 This condition 8 shall survive termination of the Contract, however arising.
9. LIMITATION OF LIABILITY
9.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
9.1.1 any breach of the Contract howsoever arising;
9.1.2 any use made by the Customer of the Services, or any part of them; and
9.1.3 any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these conditions excludes the liability of the Supplier:
9.3.1 for death or personal injury caused by the Supplier’s negligence; or
9.3.2 for fraud or fraudulent misrepresentation.
9.4 Subject to condition 9.2 and condition 9.3:
9.4.1 the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for loss of profits; loss of business; depletion of goodwill or similar losses; loss of anticipated savings; loss of goods; loss of contract; loss of use; loss or corruption of data or information; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
9.4.2 the Supplier’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services.
10.1 The term of the Contract (“Term”) shall be for the minimum period set out in the Proposal (monthly or 6 monthly). If there is no minimum period set out in the Proposal the Contract shall continue until terminated by either party giving 31-days notice to the other and in these circumstances Term shall mean the period from the date the Contract commences until the effective date of cancellation.
10.1.1 Cancellation notice must be provided in writing to firstname.lastname@example.org with 31 Days notice. (If an invoice falls on the 31st day, the invoice remains payable). If cancellation notice is not received to this email, billing will continue.
10.1.1 Cancelling a direct debit mandate or debit/credit card authorisation or unlinking your ads account does not constitute a cancellation of services and billing will continue until a cancellation notice is received as per 10.1.1.
10.2 Without prejudice to any other rights or remedies to which the parties may be entitled, the Supplier may terminate the Contract without liability to the Customer if:
10.2.1 the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
10.2.2 the Customer commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
10.2.3 the Customer repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
10.2.4 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
10.2.5 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.2.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
10.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer;
10.2.8 the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
10.2.9 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
10.2.10 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
10.2.11 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.2.4 to condition 10.2.10 (inclusive);
10.2.12 there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
10.3 The Customer may terminate the Contract upon giving 31 days written notice to the Supplier (if a 6 month term is selected, the contract will continue until the current 6 month renewal is complete).
10.4 The Customer will continue to be charged unless cancellation is provided to email@example.com in all circumstances
10.5 If the customer exercises its right to terminate prior to the end of the term in accordance with clause 10.3, the Customer will remain liable to pay the Supplier the Price for the Services for the remainder of the Term.
10.6 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
10.7 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11. FORCE MAJEURE
The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13. RIGHTS AND REMEDIES
The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
14.1 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Contract.
14.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
15. ENTIRE AGREEMENT
15.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions.
15.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
17. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. THIRD PARTY RIGHTS
No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.
19.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing and shall be:
19.1.1 delivered by email or post
19.2 Any notice or communication shall be deemed to have been received:
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, “writing” shall not include email.
19.4 By signing this contact you agree and understand that all phone calls are recorded and can be used for the purposes of record keeping and be produce to any relevant authority should it be deemed necessary.
19.5 By signing this contact you agree to be included on our own internal email marketing lists however, you can unsubscribe at any time by notifying us.
20. GOVERNING LAW
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
The Supplier will provide the following Services to the Customer:
1. Managing Customers pay per click (“PPC”) campaigns.
2. Manage pay per click adverts using the pay per click providers platforms, for example Google, Google Ads, Bing Ads and social media sites PPC interfaces.
3. Provide the above services within the budget set for each PPC platform by the Customer from time to time.
Please note that the Customer is liable for paying the PPC platforms ad spend directly to the PPC platform provider. Please also note that in the context of this appendix 1 the word “manage” shall mean using PPC platform to optimise advertising performance, eg changing bid prices, changing advert copy, adding new keywords etc.
Services provided will be as per the pricing table in this contract.
Please note: all prices quoted are EXCLUSIVE of VAT.
Payment Terms: First monthly payment required immediately with following payments due every 31 days via Credit/Debit Card (or Direct Debit subject to eligibility) for the duration of the contract.
Cancellation: You can cancel at anytime provided your initial contract term has passed and with 31 days notice. To cancel, you must email firstname.lastname@example.org. You will then receive an automated message confirming your request has been received.
A note about expectations: Ads take time to give great results, it rewards patience, good optimisation and consistency. It is likely to take several weeks / months before it reaches its full potential. This is usually the case for ALL accounts and is due to the nature of how Ads work: As data comes in, it’s optimised to give performance increases. The more data available (over time), the better the results generally become. This is an unavoidable aspect of any Ad campaign.