1 About these Terms
1.1 We are GOA ONLINE LIMITED, a limited company registered in England with registered address at 189 Crompton Road, Macclesfield, Cheshire, England, SK11 8EH and registered number 09573388 (referred to as " we ", “ us ” and “ GOA ”).
1.2 We have developed certain software applications and platforms (the “ Tool ”) which we make available to subscribers via the internet on an annual subscription basis for the purpose of auditing and/or managing online advertising accounts.
1.3 Please review these Terms carefully and make sure that you understand them before using the Tool. If you do not agree to these Terms, you must cease use of the Tool immediately.
2 Acceptance of Terms
2.1 By either:
(a) clicking or signing electronically, completing the Order Form and returning it by email, or signing the Order Form with an electronic or wet ink signature, to indicate acceptance of these Terms; or
(b) by commencing use of the Tool,
you agree to be bound by these Terms in their entirety.
3 Definitions and Interpretation
3.1 Capitalised terms not otherwise defined herein shall have the meanings given in the Order Form. The following capitalised terms shall have the meanings set out next to them:
Authorised Account means the advertising account operated by the Client (including without limitation any Google AdWords Account(s) or Facebook Adverts Account to which the Tool is “linked”) as further described herein;
Business Day means a day (other than a Saturday or Sunday) on which the banks are ordinarily open for business in the City of London;
Client Data means the data input by the Client, or GOA on the Client's behalf for the purpose of using the Tool or facilitating the Client's use of the Tool;
Confidential Information means the provisions of these Terms and all information which is secret or otherwise not publicly available (in both cases either in its entirety or in part) including commercial, financial, marketing or technical information, know-how, trade secrets or business methods or data, in all cases whether disclosed orally or in writing before or after the date of these Terms;
Documentation means such documents as may be made available to the Client by GOA from time to time setting out a description of the Services and any user instructions for the Services;
Facebook Adverts Accounts means the Client’s registered account with Facebook adverts and all the Client Data registered with that account;
Fees means any of the Licence Fees, any additional licence fees, the Support Fees or the Other Services Fees in each case as set out in the Order Form;
Google AdWords Account means the Client’s registered account with Google AdWords and all the Client Data registered with that account;
Intellectual Property Rights means any and all rights in and/or to patents (including supplementary protection certificates), rights to inventions, copyright and related rights, trademarks, service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order Form means the order form to which these Terms are attached;
Processing Conditions : any restrictions or conditions with which GOA is required to comply as set out in the Order Form;
Tool has the meaning given in clause 1.2.
4 Licences, Documentation and services
4.1 Subject to the remaining provisions of these Terms, GOA hereby grants to the Client a non-exclusive, non-transferable right to permit an unlimited number of users to use the Tool during the Licence Term solely in connection with the Client's commercial business operations.
4.2 The rights provided under this clause 4 are granted to the Client only, and shall not be considered granted to any group company of the Client.
4.3 The Client agrees that the Tool requires and has permission to access (and, where the Client specifically instructs GOA to do so, control) the Authorised Account, including access to all the Client Data registered with such Authorised Account. In the event that the Client restricts access to its Authorised Account in any way at any time, the Tool may not function as contemplated by these Terms and the operation and effectiveness of the Tool may be impaired.
4.4 The Client acknowledges and agrees that GOA may aggregate in an anonymised format such Client Data as is generated by GOA pursuant to the Client’s use of the Tool. The Client hereby grants GOA a royalty free, perpetual licence to use, disclose, sell and aggregate with the data of other customers such data.
4.5 Unless otherwise agreed in the Order Form, GOA shall deliver to the Client on the Commencement Date (i) the Tool by way of login and password information for access to the Tool, and (ii) one copy of the Documentation in legible eye readable printed form and/or on USB or other format as the Client may reasonably request.
4.5 Where set out in the Order Form, GOA, or its third parties, will provide the Support Services and/or Other Services, including any integration activities for the Tool with the Client's systems or software, customisations, configurations or branding as set out in the Order Form. Other Services shall incur Service Fees.
5.1 In consideration of the provision of the Tool and (if applicable) any Support Services or Other Services, the Client shall pay the Fees in accordance with the provisions of this clause 5. All Fees shall be payable in pounds sterling (£). Fees shall be non-refundable unless stated to the contrary in these Terms. The Client shall pay all invoices to a bank account nominated in writing by GOA or by credit card through the application.
5.2 GOA shall invoice the Client at the beginning of the License Period or in accordance with the Frequency for the particular Fee. All invoices shall be paid on 14 day terms unless otherwise stated in the Order Form. In the event that any invoice is not paid within 30 days of its due date for payment, GOA may in its sole and absolute suspend the Client’s access to the Tool and / or terminate the agreement constituted by these Terms and the Order Form pursuant to clause 12.
5.3 If the Client fails to pay any amount properly due and payable by it under these Terms, GOA shall have the right to charge interest on the overdue amount at the rate of four (4) per cent per annum above the base rate for the time being of the Bank of England accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment.
5.4 All sums payable under these Terms are exclusive of VAT, sales or any similar tax, import or customs duties which will be paid additionally by the Client to GOA at the then prevailing rate.
5.5 The Client acknowledges and agrees that GOA may pass onto the Client any fees introduced or increased by the advertising provider for linking to, or extracting data from, the Authorised Account from time to time. GOA shall pass these fees on at cost price.
5.6 Fees shall be payable in respect of each Authorised Account to which the Tool is linked. If the Client wishes to use the Tool in respect of more than one advertising platform, additional Fees shall be payable.
6 Warranties and acknowledgments
6.1 GOA warrants that during the Licence Term the Tool will, when properly used on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation and that the Documentation correctly describe the operation of the Tool in all material respects. The warranty herein does not apply: (a) if the defect or fault in the Tool results from the Client having altered or modified the Tool; or (b) if the defect or fault in the Tool results from the Client having used the Tool in breach of the terms of these Terms.
6.2 GOA does not warrant that the Client's use of the Tool will be uninterrupted or error-free; or that the Tool, Documentation and/or the information obtained by the Client through the Tool will meet the Client's requirements. GOA is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Tool and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 The Client acknowledges and agrees that the Tool provides general suggestions based on a number of factors relating to the Client Data to which GOA is provided with access. GOA offers no guarantees that any suggestions will improve performance of the Client’s advertising. Decisions in respect of advertising are the sole and exclusive responsibility of the Client and GOA shall not be liable in respect of the results of any such decision.
7 Client Undertakings
7.1 The Client undertakes not to access, store, distribute or transmit any virus, or any material during the course of its use of the Tools that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or offensive, and GOA reserves the right to disable the Client's access to any material that breaches the provisions of this clause.
7.2 Except to the extent expressly permitted under these Terms, the Client undertakes not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, reverse compile, disassemble or reverse engineer all or any portion of the Tool (other than reports and summaries generated via the Tool, which the Client shall be entitled to share with its customers provided that the logo and branding of GOA is clearly visible).
7.3 The Client undertakes not to access all or any part of the Tool and Documentation in order to build a product or service which competes with the Tool, or to resell the Tool.
7.4 The Client shall comply with all applicable laws and regulations with respect to its use of the Tool and Documentation as well as the terms of service applicable to the provider of any Authorised account including without limitation any Google AdWords Account or Facebook Adverts Account.
8 Data protection
8.1 The Client warrants to GOA that any personal data contained in Client Data provided to the GOA is provided subject to a valid processing condition and that where consent is the processing condition, such consent has been given in a clear unambiguous format in compliance with the General Data Protection Regulation (EU) 2016/679).
8.2 In the event that GOA processes any personal data on the Client's behalf when performing its obligations under these Terms, the parties record their intention that the Client shall be the data controller and GOA shall be a data processor.
8.3 The parties agree that:
(a) personal data may be transferred or stored outside the EEA or the country where the Client are located and the Client shall ensure that the Client is entitled to transfer the relevant personal data to GOA so that GOA may lawfully use, process and transfer the personal data in accordance with these Terms on the Client's behalf; and
(b) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
9 Intellectual Property Rights
9.1 The Client acknowledges and agrees that all Intellectual Property Rights in the Tool and the Documentation shall remain the property of GOA. Nothing in these Terms shall have the effect of granting any Intellectual Property Rights in the Tool and/or the Documentation to the Client.
9.2 The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Tool or the Documentation.
9.3 All Intellectual Property Rights in the Client Data shall remain the property of the Client and, for the avoidance of any doubt, the Client shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
10.1 The Client shall defend, indemnify and hold harmless GOA against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Tool and/or Documentation and/or GOA’s use of the Client Data as contemplated by these Terms, provided that: (a) the Client is given prompt notice of any such claim; (b) GOA provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and (c) the Client is given sole authority to defend or settle the claim.
10.2 In no event shall GOA, its officers, employees, agents and sub-contractors be liable to the Client to the extent that any alleged infringement is based on: (a) a modification of the Tool or Documentation by anyone other than GOA; or (b) the Client's use of the Tool or Documentation in a manner contrary to the instructions given to the Client by GOA; or (c) the Client's use of the Tool or Documentation after notice of the alleged or actual infringement from GOA or any appropriate authority.
11 Limitation of Liability
11.1 Nothing in these Terms shall exclude or limit either party's liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other matter that cannot be limited or excluded by law. GOA shall not be liable, whether in contract, tort (including negligence), for breach of statutory duty, misrepresentation or otherwise in connection with these Terms for any indirect, special or consequential loss or damage, howsoever arising.
11.2 Subject to clause 11.1 above, GOA’s total aggregate liability arising out of or in connection with these Terms shall in no event exceed an amount equivalent to one hundred per cent (100%) of the Fees paid or payable by the Client in the 12 months immediately preceding the date on which the claim arose.
12 Duration and Termination
12.1 The agreement constituted by these Terms and the Order Form shall come into force on the Commencement Date and shall continue for the Licence Term, renewing thereafter for successive periods of equal duration to the initial Licence Term (each, a “ Renewal Period ”) (subject to the Client’s payment to GOA of all applicable Fees in respect of each such Renewal Period), unless and until terminated by either party giving the other no less than 30 days’ prior written notice, such notice not to expire earlier than the end of the initial Licence Term or, in the event of a Renewal Period, the end of the relevant Renewal Period.
12.2 Each party shall be entitled to terminate these Terms immediately upon giving notice in writing to the other party if:
(a) the other party commits a material breach of any of the terms of these Terms and, where such a breach is capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
(b) the other party becomes or is reasonably likely to become insolvent, enters into bankruptcy, individual voluntary arrangement, liquidation, winding up, receivership or administrative receivership, administration, a corporate voluntary arrangement or compromises any debts with creditors.
12.3 The termination/expiry of these Terms shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination/expiry.
12.4 Upon termination or expiry of these Terms for whatever reason and without affecting any other rights or remedies of any party the Client’ right to use the Tool shall immediately cease and GOA shall be permitted to delete any Client Data and any other data generated by the Tool in respect of the Client.
13.1 Each party shall keep and procure to be kept secret and confidential all Confidential Information belonging to the other party disclosed or obtained as a result of the relationship of the parties under these Terms and shall not use nor disclose the same save for the purposes of the proper performance of these Terms or with the prior written consent of the other party. The Client acknowledges that details of the Tool constitutes GOA's Confidential Information. The parties may disclose Confidential Information to an employee, consultant or agent to the extent necessary for the performance of these Terms.
13.2 The obligations of confidentiality in this Clause 13 do not extend to any Confidential Information which the party that wishes to disclose or use can show (i) is or becomes generally available to the public other than as a result of a breach of the obligations of confidentiality under these Terms, (ii) was in its written records prior to the date of these Terms and not subject to any confidentiality obligations, (iii) was or is disclosed to it by a third party entitled to do so, (iv) the parties agree in writing is not Confidential Information or may be disclosed or (v) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
14.1 The agreement constituted by these Terms is personal to the Client. The Client shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under these Terms without the prior written consent of GOA. GOA may assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under these Terms at any time without the prior written consent of the Client.
14.2 GOA shall have no liability to the Client under these Terms if it is prevented from or delayed in performing its obligations under these Terms, 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 GOA or any other party), failure of a utility service or transport or telecommunications network or the internet, 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, provided that the Client is notified of such an event and its expected duration.
14.3 No person who is not a party to these Terms shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of these Terms.
14.4 These Terms and the Order Form contains the entire agreement between the parties in relation to their subject matter and supersedes any prior arrangement, understanding written or oral agreements between the parties in relation to such subject matter.
14.5 If at any time any part of these Terms is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, such part shall be deemed omitted from these Terms and remainder of these Terms shall remain in effect.
14.6 No purported alteration or variation of these Terms shall be effective unless it is in writing signed by a duly authorised representative of each of the parties.
14.7 Any notices sent under these Terms must be in writing. Notice by email is deemed to be in writing.
14.8 These Terms and any issues, disputes or claims arising out of or in connection with them (whether contractual or non-contractual) shall be governed by, and construed in accordance with, English law.
14.9 All disputes or claims arising out of or relating to these Terms shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.