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TERMS AND CONDITIONS 1&1 Search Engine Marketing

1&1 Search Engine Marketing

By ordering these Search Engine Marketing services, you ("you" or "customer") agree to the terms and conditions set forth herein (this "Agreement"). This Agreement incorporates and is supplemental to 1&1's General Terms and Conditions (the "GT&C"), by which you are also bound, to the extent they are not modified by this Agreement.

1. Scope of Services

The following terms and conditions apply to the 1&1 Search Engine Marketing service (hereafter referred to as "Search Engine Marketing") provided by 1&1 Internet Inc. whose registered office is at 701 Lee Road, Suite 300, Chesterbrook, Pennsylvania 19087 (hereafter referred to as "1&1"). 1&1 shall offer the customer within the scope of this service various facilities for search engine marketing for its website.

2. Availability

The service is only available to persons who in the course of a business use a web hosting package provided by 1&1 and who have registered a relevant domain name with 1&1.

3. Services to be provided

3.1
The service is provided to facilitate the customer in search engine marketing for its website (hereafter referred to as "website"). 1&1 will act as virtual media agent for the customer.

3.2
1&1 will produce for the customer advertising copy which will appear as an advertisement when internet users input certain key words on search engine and portal websites. 1&1 will also prepare the key word list. 1&1 will decide in its absolute discretion the search engines where the advertisements will be placed. 1&1 will not reserve any advertising space with search engine websites which as their exclusive or main theme contain the following material: sexually explicit offensive material, the portrayal of violence, discriminatory statements or representations relating to race, gender, religion, nationality, disability, sexual orientation or age and radical political material, or any other material that 1&1 deems offensive or inappropriate.

3.3
1&1 is entitled to produce advertising copy in its absolute discretion. 1&1 is not required to take account of ideas or wishes of the customer. 1&1 is not required to obtain the customer's release of any material. In producing advertising copy and key word lists 1&1 will also use material appearing on the customer's website. If 1&1 uses only certain pages of the customer's website, the customer is required to inform 1&1 of the precise URL for these pages. If the customer does not specify any URL for individual pages, 1&1 will use material from all pages of the customer's website. 1&1 confirms that in producing advertising copy it will not include statements with the following content: sexually explicit offensive material, the portrayal of violence, discriminatory statements or representations relating to race, gender, religion, nationality, disability, sexual orientation or age and radical political material, or any other material that 1&1 deems offensive or inappropriate.

3.4
1&1 will store the advertising copy on its own server or with a server of the search engine provider according to 1&1's own choice.

3.5
1&1 will also monitor the clicks generated and the relevant performance of the advertising copy and the key words used. 1&1 is entitled to alter the advertising copy and key words in its absolute discretion for the purpose of optimizing the service.

3.6
Where a fixed monthly fee has been agreed upon, the following provisions shall apply:

1&1 charges a fixed monthly handling fee plus an advertising budget. This advertising budget can be adjusted by the customer on a monthly basis.

In the event the number of clicks in a given month corresponds to less than 75% of the monthly advertising budget, the customer will receive a pro-rata refund of the monthly advertising budget amount. There will be no refund of the handling fee. In other cases of undersupply, a pro-rata amount will be added to the customer's budget amount for the following month.

The customer may request that a campaign be suspended for an entire month by giving 1&1 no less than three (3) days' notice via the 1&1 Control Panel of such intention prior to commencement of the relevant month. 1&1 reserves the right to reject any such request or to impose restrictions on such suspension at 1&1's sole discretion.

Where the Search Engine Marketing services are terminated by 1&1 or by the customer resulting in an undersupply in the final month of the contractual period the customer will receive a pro-rata refund of the monthly budget. There will be no refund of the handling fee.

3.7
Where a specified number of clicks per month has been agreed with the customer, the following provisions will apply in the event of an over or under supply of the service:

In the case of an oversupply the number of clicks exceeding the agreed number will be included in the clicks for the following month.
In case of an undersupply of up to 25% per month the missing clicks will be added to the number of clicks to be supplied in the following month ie. 1&1 has the right to supply the missing clicks in the following month. The first clicks of the following month will be set off against the missing clicks for the previous month.

In case of an undersupply of more than 25% per month the client will receive a credit corresponding to the value of the missing clicks for the month in question.

In determining the number of clicks per month only valid clicks will count. Valid clicks will be recorded and verified on the basis of the transaction systems of the search engine and portal providers and estimated by 1&1. Valid clicks will not include clicks produced automatically by technical means (eg. click generators) or clicks generated through the misperception of the internet user concerning the availability of a hyperlink in the advertising text. Click calculations shall be determined by 1&1 in its sole and absolute discretion and shall not be subject to challenge or review.

Where the Search Engine Marketing services are terminated by 1&1 or by the customer resulting in an undersupply in the final month of the contractual period the customer will receive a refund corresponding to the value of the remaining number of clicks for the month.

3.8
Delays in the provision of the service caused by force majeure or resulting from events which make the provision of the service by 1&1 more difficult or impossible for any substantial period of time (in particular strikes, lock outs, orders issued by any authority etc.) will not be 1&1's responsibility. If the delay lasts more than three months the customer may terminate the contract on reasonable notice.

3.9
1&1 reserves the right to reject any order for Search Engine Marketing placed by a customer who had an active Google Adwords account within 90 days prior to the placing of the order.

4. Customer's Obligations

4.1
The customer shall observe and comply with all applicable laws, including without limitation the laws of the United States of America. As 1&1 will provide its services by reference to the material on the customer's website, the customer shall comply with the following requirements relating to the legality of its website.

4.2
The customer will not include on its website nor in any pages or sub-pages nor in any banners nor in any e-mail address or other matters appearing in the website anything which is unlawful or immoral or which infringes the rights of third parties (trademarks, protected names, copyright, data protection etc.). In particular the customer will not offer nor allow to be offered any pornographic material or any services connected with gaming nor any material of a pornographic and/or erotic nature (eg. naked images, peep shows etc.) or any material that violates the GT&C, including but not limited to Section 7 therein.

4.3
Material may only be uploaded, stored, kept available and/or transferred or disseminated on the customer's website (in particular on those pages to be used by 1&1 in accordance with clause 3.3) for which the customer owns the necessary rights (in particular copyright and other intellectual property rights) and which do not infringe the rights of third parties. In particular the customer must be the owner of any necessary copyright or other intellectual property rights which permit the use of the contents of the website by 1&1 in providing this service.

4.4
In relation to the website for which the customer uses the services to be provided by 1&1 the customer agrees to comply with all applicable laws. Any use which contravenes any local, national, or international laws which may apply to 1&1 or the customer's local jurisdiction or any jurisdiction to which the customer or the customer's website may be subject is strictly prohibited.

5. License

5.1
To facilitate the use by 1&1 of material from URLs specified by the customer in accordance with clause 3.3 or (where the customer does not specify a URL) material from the whole of the customer's website in preparing advertising copy and the key word list, the customer grants 1&1 a non-exclusive worldwide and irrevocable licence which is free of charge unlimited as to time freely assignable and in respect of which sub-licences can be granted for the purposes of copying, distributing, amending, displaying and publicising the content in connection with the service and 1&1's business.

5.2
Unless otherwise agreed any use of the material beyond the services to be provided by 1&1 pursuant to this Agreement is prohibited.

6. Payment

6.1
Prices quoted are fixed prices. The payment due depends upon the choice of tariff specially agreed with the customer. 1&1 is entitled to require payment in advance.

6.2
Any credit due in connection with an undersupply in any month as referred to in clause 3 will be taken into account in the invoice for the following month.

6.3
Once the customer pays an invoice or where no objection is raised with respect to any invoice within thirty (30) days after receipt of an invoice, the invoice is deemed accepted by the customer. Acceptance of a particular invoice shall also indicate customer's acceptance of the clicks and any applicable credit as measured by 1&1. &1 will remind the customer in the invoice of the relevant time limit and of the significance to be attributed to the customer's response.

6.4
1&1 will assess the payment due in accordance with the current price list although this will not affect the customer's main liability ie. in particular the commitment to pay the chargehandling fee and the monthly advertising budget.

6.5
1&1 may at any time and from time to time increase charges by notification to the customer. The customer will be deemed to have consented to any price increase unless the customer terminates this Agreement within thirty days following receipt of the relevant notification.

6.6
In the event of any change in any tax payable in connection with the supply of the service, 1&1 is entitled to modify its charges for goods or services supplied on a regular basis from the time when the change takes effect.

6.7
The first invoice will be issued for the month beginning with the day upon which the agreement takes effect regardless of the selected plan. Invoices will be issued for subsequent months ending in each case one day before the same day in each subsequent calendar month. Where no such day occurs in any calendar month, the month will end on the penultimate day of the month. Advertisements which extend beyond the last day of any month will be carried over into the next invoicing period.

6.8
In the event of any change in the charges or the components of any charge (eg. increase in any tax) occurring within any invoice period, a separate invoice will be issued covering the period from the beginning of the invoice period up to the time of the change and the period from the time of the change up to the end of the invoicing period.

6.9
1&1 will issue the invoice to the customer at least five days before the amount is debited either by e-mail or in the customer's personal configuration menu.

6.10
Payment of the charges may only be made by a valid credit card or through Pay Pal. The customer authorizes 1&1 to deduct any charges incurred from the account specified by the customer.&1 of any changes to the customer's Credit Card or Pay Pal account so that there is no interruption or delay in processing payments.

6.11
In the event of any delay in payment by the customer 1&1 is entitled to terminate the booking for the advertising space immediately. In such an event the customer remains liable to pay the monthly charges.

7. Effective Time of Agreement, Termination, Compensation

7.1
1&1 is entitled to accept the customer's offer to receive the service within fourteen days following an order by telephone or dispatch of the order by the customer. The Agreement takes effect when the first advertisement is placed.

7.2
By receiving the customer's order, 1&1 becomes entitled but not committed to provide the services within the scope of the terms and conditions. The customer has no claim against 1&1 for performance of the Agreement until 1&1 commences to provide the service which will then be provided in accordance with the terms of this Agreement and charged for accordingly.

7.3
1&1 reserves the right to decline any customer's order without giving reasons.

7.4
Unless otherwise agreed the Agreement will last for a minimum period of one month.

7.5
If the Agreement is concluded for a fixed period or if a minimum period has been agreed with the customer, then the Agreement will be automatically renewed by the agreed period up to a maximum of one year unless it is terminated at least seven days before expiration of the relevant period. This provision will apply subject to any other arrangement with the customer.

7.6
If the Agreement has been concluded for an indefinite period it can be terminated by 1&1 on giving seven days' notice to expire at the end of a month without the giving of any reason and by the customer on giving thirty days' notice to expire at the end of a month.

7.7
Where a specified number of clicks per month has been agreed with the customer and a cancellation by 1&1 or by the customer results in an undersupply, then in the event of an undersupply in the final month of the contractual period the customer will receive a credit corresponding to the value of the remaining number of clicks for the month in question.

7.8
The right of both parties to terminate the Agreement without notice where there has been a fundamental breach of contract remains unaffected. 1&1 shall in particular be entitled to terminate the Agreement without notice if the customer:

  • Fails to comply with any of the duties set out in clauses 4 and 5 or
  • Fails to modify the customer's internet pages so as to comply with the requirements of clause 4 within a reasonable period following a notice to do so

7.10
Where 1&1 is entitled to terminate the Agreement without notice 1&1 is entitled to require payment of an amount equal to 75% of the total of all monthly basic charges which the customer would have had to pay if the Agreement had been terminated with the appropriate notice.

7.11
Any termination of the Agreement must be in writing.

8. Liability and Indemnity

8.1
The customer shall be solely responsible for the content of the advertising material and the advertising space. The customer warrants that the content of the advertisement does not contravene current laws, exceed legal restrictions, and is not of an offensive nature and that the rights of third parties will not be prejudiced or infringed by the publishing of the advertisement.

8.2
The customer agrees to indemnify and keep indemnified 1&1 from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with this Agreement. In particular and without prejudice to the generality of the foregoing the customer will indemnify 1&1 against all losses, liabilities, costs and expenses reasonably suffered or incurred by 1&1, all damages awarded against 1&1 under any judgment by a court of competent jurisdiction and all settlements sums paid by 1&1 as a result of any settlement agreed by it arising out of or in connection with any breach of this Agreement or the GT&C, including without limitation:

  • Any claim by any third party that the use of the service by the customer is defamatory, offensive or abusive, or of an obscene or pornographic nature, or is illegal or constitutes a breach of any applicable law, regulation or code of practice
  • Any claim by any third party that the use of the service by the customer infringes that third party's copyright or other intellectual property rights of whatever nature; and
  • Any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the service by the customer.

8.3
1&1 shall have the right, but shall not be obliged to check the content of the advertisement or of customer's website for compliance with this Agreement or the GT&C. 1&1 shall have the right without prior notice to remove any advertisements which contravene the provisions of the GT&C or this Agreement&C, or which contravene current laws, exceed legal restrictions or are of an offensive nature&1 has reason to believe infringe a third party's intellectual property rights, or which otherwise violate the GT&C or this Agreement, with or without notice.. 1&1 shall notify the customer in a timely manner of any measures taken. The customer shall remain liable to pay the contractually agreed charges&1 to review except where the customer establishes that 1&1 removed the advertisement without justification. Other claims by the customer for reimbursement or damages are excluded. 1&1 may outsource any of the services provided hereunder to a third party and, in such case, to forward any data to such third party required for the performance of the services.

8.4
In the case of each advertisement 1&1 shall be liable only for publishing the advertisement correctly but shall not be responsible for the advertising copy actually being seen by the intended recipient.

8.5
If advertisements of either type are not published on time or fully or in accordance with the Agreement with the customer, 1&1 shall have the right and shall be required to make the necessary corrections within a reasonable period of time. After two unsuccessful attempts at making the necessary corrections the customer shall have a right of cancellation or shall be entitled to a reduction in the amount charged.

8.6
1&1 disclaims all liability in connection with loss of material or technical problems including errors or interruptions of the website.

8.7
1&1 shall have no liability to the customer for any loss, damage, costs, expenses or other claims for compensation arising from any material supplied by the customer to 1&1 for the purpose of this Agreement or instructions supplied by the customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wring form, or arising from their late arrival or non-arrival, or any other fault of the customer

8.8
1&1 shall not be liable to the customer by reason of any representation or any implied warranty, condition or other term, or any duty at common law for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of 1&1, its servants or agents or otherwise) which arise out of or in connection with the provision of the services to the customer pursuant to this Agreement. Under no circumstances shall 1&1's liability exceed the amounts paid &1 by the customer for the provision of the said services.

8.9
1&1 shall not be liable to the customer or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of 1&1's obligations in relation to the said services, if the delay or failure was due to any cause beyond 1&1's reasonable control.

9. Exclusion of Warranties

THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT AS SPECIFICALLY PROVIDED HEREIN. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE USE OF THE SERVICES IS AT CUSTOMER'S SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED HEREIN, 1&1 DOES NOT WARRANT AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. 1&1 HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. Miscellaneous

10.1
No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties. Except for the GT&C, which apply to all transactions between 1&1 and any of its customers, this Agreement supersedes any written, electronic, or oral communication the customer may have had with 1&1 or any agent or representative thereof, and constitutes the complete and total agreement between the parties. If any of the provisions contained herein are in conflict with the GT&C, the provisions in this Agreement shall prevail.

10.2
This Agreement shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania. Any claim, dispute, or controversy with respect to, in connection with or arising out of this Agreement shall be subject to and decided by arbitration in the City of Philadelphia, County of Philadelphia, Commonwealth of Pennsylvania, pursuant to the provisions of Section 21 of the GT&C, and the parties irrevocably submit to said jurisdiction.

10.3
If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.

10.4
If any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.

10.5
The parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

10.6
Any notice under this Agreement shall be given by 1&1 to the customer via e-mail at the address provided by the customer to 1&1. Notice to the customer at such e-mail address is deemed sufficient regardless of the customer's receipt of such e-mail.

10.7
Nothing contained herein shall be interpreted as creating an agency, partnership or joint venture between 1&1 and the customer.