Interpretation

Definitions of important terms. In these conditions, the following definitions apply

Business Day: a day, other than Sunday

Campaign: the creation, installation, management, development, and employment of a PPC advertising network strategy as set out in the PPC Brief

Charges: the charges to be paid by the Client for the supply of the Services as mentioned in clause 6, including the Initial Fee and the Monthly Charge.

Client: the person, business, or firm who acquires Services from Yaya Ads

Conditions: these terms and conditions are amended from time to time under clause 15.8

Contract: the contract between Yaya Ads and the Client for the supply of Services under these conditions

Contract Order Form: the order form issued by Yaya Ads to the Client

Conversion tracking codes: the Google conversion tracking codes or other conversion tracking codes installed on the Website.

Deliverable: any amendments or other work carried out to the Website, including the design or development of any additional Website Pages, by Yaya Ads as part of the requested Services.

Document: includes, in addition to any document in writing, drawing, map, plan, diagram, design, picture or other images, tape, disk or other device or record embodying information in any form.

Initial Fee: Yaya Ads’ fee for setting up the Campaign.

Input Material: has the meaning set out in clause 4.1(c).

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including 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.

Initial Term: has the meaning set out in clause 3.2.

Monthly Charge: the monthly fee for the Services.

PPC: Pay-per-click advertising.

PPC Advertising Networks: the PPC advertising networks that Yaya Ads agrees to provide the Services in connection with as set out in the PPC Brief.

PPC Brief: the brief set out in writing the description or specification of the Services to be provided by Yaya Ads to the Client.

Pre-existing Materials: all Documents, information, and materials provided by Yaya Ads relating to the Services which existed before the commencement of the Contract including computer programs, data, reports, graphics, and specifications.

Proposal: Yaya Ads’ initial quote for the provision of the Services.

Resources: the resources that Yaya Ads may use or employ to provide the Services, including Third-Party Resources.

Search Engines: the search engines that Yaya Ads agrees to provide the Services in connection with as set out in the PPC Brief.

Services: the PPC services supplied by Yaya Ads to the Client as mentioned in the PPC Brief, together with any additional services that Yaya Ads agrees to provide to the Client.

Third-Party Resources: PPC Advertising Networks, Search Engines, web analytics software, PPC programs, directories, or third-party websites or any other third-party resources that Yaya Ads may use or employ to provide the Services.

Website: any website, intranet, or extranet of the Client that Yaya Ads is to provide PPC services on as part of the Services.

Website Pages: pages on the Website, including any additional pages created by Yaya Ads as part of the Services.

Construction. In these Conditions, the following rules apply:

• a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
• a reference to a party includes its representatives, successors, or permitted assigns;
• a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
• any phrase introduced by the terms including, include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and a reference to writing or written includes faxes and emails.

Basis Of Contract

• The Client shall sign the Contract Order Form and return it to Yaya Ads. This includes an offer by the Client to purchase Services under these Conditions.
• The Contract Order Form shall only be deemed to be accepted when Yaya Ads agrees with it, signs it, and returns a copy of it to the Client at which point, and on which date the Contract shall come into existence.
• The Contract constitutes the complete agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Yaya Ads which is not set out in the Contract.
• Any samples, drawings, descriptive matter, or advertising issued by Yaya Ads, or any descriptions or illustrations contained in Yaya Ads’ catalogs or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not be a part of the Contract or have any contractual force.
• These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
• Any quotation given by Yaya Ads shall not be considered as an offer, and, unless otherwise agreed, is subject to revision at any time to meet any rise or fall in Yaya Ads’ expense.

Supply Of Services

• Yaya Ads shall supply the Services to the Client as per the Contract Order Form and PPC Brief in all material respects.
• The Services shall be supplied for the term (Initial Term) set out in the Contract Order Form and, after that, shall continue to be supplied unless the Contract is terminated by one or both of the parties giving at least one months’ notice before the termination. The Contract shall terminate on the last day of the Month following the Month after which the notice is given. The earliest date at which notice can be given is during the last but one month of the Initial Term.
• Yaya Ads shall use all sensible approaches to meet any performance deadlines specified in Contract Order Form or PPC Brief. However, any such dates shall only be considered as estimates, and time shall not be of the essence for the performance of the Services.
• Yaya Ads warrants to the Client that the Services will be provided using sound care and skill.
• Yaya Ads will not commence the performance of the Services until it has received the Initial Fee.
• Yaya Ads can refuse to accept or use any Input Material in the provision of the Services:

which may be considered offensive, illegal, or controversial in any way;

for which the Client has not obtained an appropriate license, permission, or legal consent under clause 4.1(f).

If the Client or any third party apart from Yaya Ads, makes any changes to the Website which contradict the Deliverables, Yaya Ads will not be responsible for reinstating the Deliverables and if the Client does require Yaya Ads to reinstate them then the Client is liable to pay Yaya Ads the additional charges to cover the cost of reinstating the Deliverables.

Yaya Ads shall be entitled to approve or disapprove any design strategies, existing code, or other techniques requested or currently used by the Client which is the sole opinion of Yaya Ads that are unfavorable to the Campaign or other Services to be provided by Yaya Ads for the duration of the Contract.

Clients Obligations

The Client shall:

• Ensure that the terms of the Contract Order Form and any information it provides in the PPC Brief are complete and accurate;
• provide full cooperation with Yaya Ads in all matters relating to the Services;
• provide Yaya Ads with information and materials as Yaya Ads may reasonably require to supply satisfactory Services (Input Material) including additional relevant text content for the Website to create additional Website Pages where Yaya Ads considers that the text content of the Website is too low, and ensure that such information is accurate in all material respects;
• facilitate Yaya Ads with administrator rights to any Third-Party Resources as are necessary for Yaya Ads to supply the Services;
• ensure that the Conversion Tracking Codes are installed properly and are functioning; and
• obtain and maintain all necessary licenses, permissions, and consents that may be required before the date on which the Services are to commence and provide Yaya Ads with evidence of such license, permission, or consent when requested by Yaya Ads.

If Yaya Ads’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

• Yaya Ads shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays Yaya Ads’ performance of any of its obligations;
• Yaya Ads shall not be held accountable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Yaya Ads’ failure or delay performing any of its obligations as set out in this clause 4. For the avoidance of doubt, the Client shall continue to be liable for the Monthly Charge during any period that Yaya Ads suspends performance of the Services; and
• The Client shall reimburse Yaya Ads on written demand for any costs or losses sustained or incurred by Yaya Ads, arising directly or indirectly from the Client Default.

Amendments

If the Client wishes to change the scope or execution of the Services, they shall submit details of the requested change to Yaya Ads in writing.

If the Client requests a change to the scope or execution of the Services, Yaya Ads shall, within a reasonable time, provide a written estimate to the Client of:

• The likely time required to implement the change;
• Any necessary variations to the Charges arising from the change; and
• Any other impact of the change on this agreement.

If the Client wishes Yaya Ads to proceed with the change, Yaya Ads has no obligation to do so unless and until the parties have agreed on the necessary variations to the Charges, the Services and any other relevant terms of this agreement to take account of the change and this agreement has been varied under clause 8.

Charges And Payment

• The Charges for the Services shall be set out in the Contract Order Form.
• The Initial Fee shall be payable to Yaya Ads before it commences the provision of the Services. The Monthly Charges shall be paid by the Client as per the payment terms set out in the Contract Order Form in full and in cleared funds to a bank account facilitated in writing by Yaya Ads.
• Time for payment shall be of the essence of the Contract.
• All amounts payable by the Client under the Contract are exclusive of amounts in respect of Value-Added Tax (VAT) chargeable for the time being. Where any taxable supply for VAT purposes is made under the Contract by Yaya Ads to the Client, the Client shall, on receipt of a valid VAT invoice from Yaya Ads, pay to Yaya Ads such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
• Without limiting any other right or remedy of Yaya Ads, if the Client fails to make any payment due to Yaya Ads under the Contract by the due date for payment (Due Date), Yaya Ads shall have the right to charge interest on the overdue amount at the rate of decided percent per annum, mutually agreed by the client and Yaya Ads, accumulated daily from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment and compounding quarterly.
• The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off, or counterclaim against Yaya Ads to justify withholding payment of any such amount in whole or in part. Yaya Ads may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Yaya Ads to the Client.
• The Client shall be responsible for the fees of any Third-Party Resources and shall maintain such adequate funds in any third-party accounts as are required to maintain inclusion in such resources. The Proposal sets out an estimate of the fees that the Client will incur for the inclusion of keywords and other listings in the Third-Party Resources.

Intellectual Property Rights

• The Client hereby authorizes Yaya Ads to use any Intellectual Property Rights of the Client that are on the Website to provide the Services.
• Subject to clause 7.3 all Intellectual Property Rights arising out of the Deliverables, including any graphics or programming code, shall be owned by Yaya Ads until the Client has paid the Charges in full. Once the Client has paid the charges in full all such Intellectual Property Rights shall automatically be transferred to the Client.
• The Client acknowledges that, where Yaya Ads does not own any Pre-existing Materials, Yaya Ads licenses all such rights to the Client on a royalty-fee non-exclusive worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Deliverables and that such license and the Client’s use of any Intellectual Property Rights in the Pre-Existing Materials is conditional on Yaya Ads obtaining a written license from the relevant licensor on such terms as will entitle Yaya Ads to license such rights to the Client.
• As between the Client and Yaya Ads, the Input Material shall be owned by the Client. The Client licenses all Intellectual Property Rights and other rights in the Input Material to Yaya Ads on a royalty-fee non-exclusive worldwide basis to such an extent as is necessary to enable Yaya Ads to provide the Services.
• The Client undertakes that they have all necessary licenses and consents to allow Yaya Ads to use the Input Material to provide the Services.
• The Client hereby authorizes Yaya Ads to annotate and insert onto the Website Yaya Ads’ identification as the author of the specific code it provides as part of the Services providing that Yaya Ads only inserts such identification where it is the legal owner of such code.

Indemnities

• The Client shall keep Yaya Ads indemnified in full against all costs, expenses, damages, and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred
• or paid by Yaya Ads as a result of or in connection with any claim made against Yaya Ads:
• for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use of the Input Material;
• for death or personal injury or damage to property arising out of, or in connection with any defective goods, products, or services sold via the Campaign.
• Yaya Ads shall keep the Client indemnified in full against all costs, expenses, damages, and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Client as a result of or in connection with:
• any disruption to any third-party services used by the Client, including merchant accounts, shopping carts, shipping, hosting, real-time credit card processing, arising out of the provision of the Services; or
• any claim made against the Client for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the insertion of Yaya Ads’ identification on the Website as the author of the specific code it provides as part of the Services.

Confidentiality

Results

• The Client acknowledges and accepts the following terms regarding the Services:
• Yaya Ads is not responsible for the policies of Third-Party Resources. The Website or any content on it may be excluded or restricted from the Third-Party Resources at any time.
• Many of the Third-Party Resources are subjective and competitive. Accordingly, Yaya Ads does not guarantee the position of any PPC keyword, phrase, or search term.
• Yaya Ads’ previous performance in the provision of the Services or services similar to the Services is not indicative of any future results that Yaya Ads may achieve on behalf of the Client.
• PPC advertising may be subject to the individual PPC Advertising Network’s policies and procedures. Each edit or change made to such policies and procedures may affect the Campaign and the Client acknowledges that this is outside the control of Yaya Ads. Yaya Ads will endeavor to rectify any negative effects on the Campaign arising from the changes to these policies and procedures.
• A Search Engine or PPC Advertising Network may drop a listing for no apparent or predictable reason. If the listing does not reappear in the Search Engine or PPC Advertising Network within a reasonable period Yaya Ads will re-submit the Resources based on the current policies of the Search Engine or PPC Advertising Network.
• Unless otherwise agreed in the PPC Brief, Yaya Ads does not guarantee the placement of the Client’s advertising, its availability, or availability related to the funds in the Client’s account with the Search Engine or PPC Advertising Network.
• Yaya Ads will practice all reasonable approaches to keep the Client informed of any changes in Third-Party Resources, industry practice, or any other changes that Yaya Ads is made aware of which may impact the Campaign and the provision of the Services. However, Yaya Ads may not become aware of such changes.

Limitation Of Liability: The Client’s Attention Is Particularly Drawn To This Clause

• Nothing in these Conditions shall limit or exclude Yaya Ads’ accountability for:
• death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;
• fraud or fraudulent misrepresentation; or
• Subject to clause 11.1:
• Yaya Ads shall, under no circumstances whatever, be held accountable to the Client, whether in contract, violation (including negligence), breach of statutory duty, or otherwise:
• for any loss, damage, costs, expenses, or other claims for compensation arising from any Input Material or instructions supplied by the Client which is incomplete, incorrect, inaccurate, illegible, or arising from their late or non-arrival, or any failure of the Client to comply with its obligations in clause 4.1 or any other fault of the Client or the Client’s agents or sub-contractors;
• for any loss, damage, costs, expenses, or other claims for compensation arising from the use of Third-Party Resources;
• for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
• Yaya Ads’ total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, violation (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges.
• Except as set out in these Conditions, all warranties, conditions, and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
• This clause 11 shall retain the termination of the Contract.

Termination

• Without limiting its other rights or remedies, Yaya Ads may terminate the Contract effective immediately by giving written notice to the Client if:
• the Client fails to pay any amount due under the Contract on the due date for payment;
• the Client commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified about the breach in writing;
• the Client 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 (being a company) is deemed unable to pay its debts;
• the Client commences negotiations with all or any class of its creditors with intending to reschedule any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
• 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 Client (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
• the Client (being an individual) is the subject of a bankruptcy petition or order;
• a creditor or encumbrancer of the Client 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 its assets and such attachment or process is not discharged within 14 days;
• 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 Client (being a company);
• a floating charge holder over the assets of the Client (being a company) has become entitled to appoint or has appointed an administrative receiver;
• a person becomes entitled to appoint a receiver over the assets of the Client or a receiver is appointed over the assets of the Client;
• any event occurs, or proceeding is taken concerning the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1(c) to clause 12.1(j)
• (inclusive);
• the Client suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
• the Client (being an individual) dies or, because of illness or incapacity (whether mental or physical), is incapable of managing his or her affairs or becomes a patient under any mental health legislation.
• Without limiting its other rights or remedies, Yaya Ads shall have the right to suspend the provision of the Services under the Contract or any other contract between the Client and Yaya Ads if the Client becomes subject to any of the events listed in clause 12.1(c)) to clause 12.1(m), or Yaya Ads reasonably believes that the Client is about to become subject to any of them, or if the Client fails to pay any amount due under this Contract on the due date for payment.

Consequences Of Termination

• On termination of the Contract for any reason:
• the Client shall immediately pay to Yaya Ads all of Yaya Ads’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Yaya Ads shall submit an invoice, which shall be payable by the Client immediately on receipt;
• subject to the Client’s compliance with clause 13.1(a), Yaya Ads shall return to the Client all Input Materials and all information and materials relating to the Campaign and any other Services which are reasonably necessary for the Client or its agents or suppliers to continue to provide similar services to those to be provided under the Contract, except that Yaya Ads shall not be required to disclose any of confidential information relating to its business or systems, including any technical and commercial know-how, specifications, inventions, processes, or confidential initiatives;
• the accrued rights, remedies, obligations, and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
• clauses which expressly or by implication have effect after termination shall continue in full force and effect.

Data Protection

• Any personal data processed by and on behalf of the Yaya Ads in connection with the Services will be processed as per Yaya Ads’ Privacy Policy, a copy of which can be obtained from Yaya Ads on request.

General

• Force majeure:
• For this Contract, Force Majeure Event means an event beyond the reasonable control of Yaya Ads including but not limited to strikes, lock-outs, or other industrial disputes (whether involving the workforce of Yaya Ads or any other party), failure of a utility service, or transport network, an 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 subcontractors.
• Yaya Ads shall not be held accountable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
• If the Force Majeure Event prevents Yaya Ads from providing any of the Services for more than 6 weeks, Yaya Ads shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.

Assignment and subcontracting:

• Yaya Ads may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
• The Client shall not, without the prior written consent of Yaya Ads, assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.

Notices:

• Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by pre-paid first-class post, recorded delivery, or by commercial courier at its registered office (if a company) or (in any other case) its principal place of business or sent by fax to the other party’s main fax number.
• Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, or email on the next Business Day after transmission. In case of email correspondence containing confidential or sensitive information, the mails must include digital signature and brand seal.
• This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For this clause, “writing” shall include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

Waiver:

• A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
• Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

Severance:

• If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
• If any invalid, unenforceable, or illegal provision of the Contract would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.
• No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
• Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
• Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Yaya Ads.
• Governing law and jurisdiction: This Contract, and any dispute or claim subject to Indian law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of India.