1.1 In this Agreement, the defined terms have the meanings assigned:
‘Commencement Date’ means the earlier of (i) the date that the second signatory signs this Agreement, (ii) the date that Lead365 Limited commences performance of the Services and (iii) the date the Deliverables are first made available to the Client.
‘Deliverables’ means the service, data, leads and other information (and all updates thereof) in whatever form to be made available to the Client by or on behalf of Lead365 Limited including the output from the Services and such Deliverables as described in the Schedule.
‘Approved supplies’ means the sites approved by Lead365 to host and run lead generation and licence data.
‘Input’ means the source data and materials to be provided by the Client to Lead365 Limited including such Input as described in the Schedule, if any.
‘Minimum Term’ means any period of time identified as such in the Schedule.
‘Price’ means Lead365 Limited)’s charges described in the Schedule.
‘Schedule’ means the schedule (Insertion Order or IO) attached to these Terms and Conditions and signed by the parties containing details of the Services and/or Deliverables.
‘Scope of Licence’ means use of the Deliverables for the Client’s own internal business purposes and for the End User names and stated under Scope of Licence in the Schedule.
‘Services’ means the services (if any) described in the Schedule.
‘Software’ means any part of the Deliverables that comprises software.
‘Special Conditions’ means special conditions identified as such in the Schedule.
‘Year’ means each period of twelve consecutive months commencing on the Commencement Date or any anniversary of that date.
1.2 The Schedule contents (including Special Conditions) form part of this Agreement.
1.3 To the extent of any inconsistency between the Schedule contents and these Terms and Conditions, the Schedule contents shall take precedence.
- OBLIGATIONS OF THE PARTIES
2.1 In consideration of the Client paying to Lead365 Limited the Price, Lead365 Limited agrees:
2.1.1 To perform the Services and (where applicable) compile the Deliverables using all reasonable skill and care; and
2.1.2 That the Software will be capable in all material respects of performing the functions and facilities set out in the appropriate Lead365 Limited product sheet. Lead365 Limited does not warrant that the Deliverables will be entirely error free.
2.2 Where the Client is required to provide Input, the Client agrees to provide accurate Input in a form reasonably acceptable to Lead365 Limited
2.3 Lead365 Limited shall in its sole discretion be entitled upon receiving the Input in an unacceptable form either to correct the Input at its own expense or (after having previously notified the Client) at the Client’s expense or to reject the Input, in which case the Client shall provide replacement Input.
2.4 The Client shall clearly define to Lead365 Limited any instructions which it has regarding the processing of the Input. If the Client fails to do so then Lead365 Limited may delay the processing of the Input until such time as such instructions are received.
2.5 All Input shall, while in the possession of Lead365 Limited, be deemed to be held at the Client’s own risk and the Client should arrange insurance cover accordingly.
- DELIVERY, SUPPLY, LICENCE & BREACH OF LICENCE PENALTY
3.1 Lead365 Limited grants to the Client a personal, non-exclusive, non-transferable licence to use the Deliverables at the Designated Site in accordance with the Scope of Licence only for the duration of this Agreement.
3.2 The Client shall not sell, transfer, distribute or otherwise make the Deliverables available to, or use the Deliverables on behalf of, any third party, unless agreed.
3.3 In the event of the Deliverables being miss-used, sold, brokered, transferred without permission and/or detection of a seed being used outside of Data Licence Agreement by the Client, Lead365 Limited will invoice up to 10 times the ‘Price’ of the Deliverables.
3.4 Save as permitted by law, the Client may make one copy of the Deliverables for back-up purposes but otherwise shall not copy the Deliverables.
3.5 Save as permitted by law, the Client shall not adapt, alter, modify, reverse engineer, de-compile or otherwise interfere with the Deliverables nor combine the same with other materials.
3.6 The Client shall not use the Deliverables through a network, time sharing or multiple user arrangement.
3.7 The Client acknowledges that the data comprised within the Deliverables may include seeds from our third party company or from the ‘Approved supplies’
3.8 Lead365 Limited may in its sole discretion provide updates to the Deliverables as and when such updates are available for general release. Lead365 Limited only supports the current plus one previous version of the Deliverables.
3.9 The Client accepts that Data may contain gone away, deceased’s, dead and wrong numbers, Email bounce back and inaccuracies. The Client accepts that no guarantees are offered from response, contact or open rates, click-through or deliverability through any Contact Channel in respect to Lead365 Limited Data/Leads & services.
3.10 The Client shall inspect and check Data and or Leads immediately on delivery and shall give Lead365 Limited notice in writing by email within 2 working days after the day of delivery as to any alleged defect together with details of the alleged defect. Failing such notice, the goods shall be deemed to be in accordance with the Order Confirmation/Contract. Lead365 Limited will allow ‘Returns’ of Data/Leads in accordance with Section 7, Liability & Returns
4.1 Title, copyright and all other intellectual property rights in the Deliverables and the Services (excluding any part that is comprised of Input in the form received from the Client) shall at all times remain vested in Lead365 Limited (or its third party licensors) and the Client shall acquire no rights whatsoever therein save as expressly provided in this Agreement.
4.2 Title, copyright and all other intellectual property rights in the Input (in the form received from the Client) shall at all times remain vested in the Client (or its third party licensors) and Lead365 Limited) shall acquire no rights whatsoever as expressly provided in this Agreement.
4.3 The Client warrants that it has the right to licence the Input to Lead365 Limited for the purposes of this Agreement.
4.4, Lead365 Limited warrants that it has the right to make the Deliverables available to the Client for the purposes of this Agreement and that it has obtained all consents as may be necessary for the client to use the data contained within the Deliverables for telemarketing purposes for it end user.
- COMPLIANCE WITH LAWS AND AUDIT
5.1 Lead365 Limited and the Client shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations and rules, including the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulation 2003.
5.2 The Client shall use the Deliverables only in accordance with best industry practice including the Direct Marketing Association’s Code of Practice and the British Code of Advertising, Sales Promotion and Direct Marketing.
5.3 Without limiting clauses 4.4, 5.1 and 5.2, where the Deliverables include telephone numbers or e-mail addresses, the Client (and not Lead365 Limited is responsible for ongoing compliance with the Privacy and Electronic Communications (EC Directive) Regulations 2003 in accordance with the consents received by Lead365 Limited, including processing against the latest TPS file.
Each party shall in respect of the other party’s confidential information keep the confidential information in strictest confidence and not make the same available to any third party.
7.1 Lead365 Limited accepts no liability for defects in the Deliverables which are attributable to defects in any Input. In the event of any defect attributable to Lead365 Limited being discovered in the Deliverables then the Client shall forthwith notify Lead365 Limited who shall be entitled at its sole discretion to take steps to correct the same at its own expense. No liability shall attach to Lead365 Limited for any such defect unless notification is given within 2 days from the date of delivery of the Deliverables to the Client or month end returns.
7.2 Lead365 Limited accepts no liability for failing to meet any quoted delivery dates for the Deliverables where the Input (if any) has not been delivered to Lead365 Limited in sufficient time or if the Input does not conform to the requirements of this Agreement.
7.3 The Client acknowledges that the Deliverables may be based on information provided to Lead365 Limited by third parties/’approved supplies’ over whom Lead365 Limited has no control. Therefore, subject always to clauses 2.1.1 and 2.1.2 and 4.4, Lead365 Limited can give no warranties as to the accuracy of the Deliverables nor the suitability of the Deliverables for any specific purposes.
7.4 Returns; An invalid record is defined as a unique piece of data that is alleged to be a hoax, salacious, hard bounce email, dead telephone number. Duplicate records will also be taken into consideration and will be investigated and confirmed by Lead365 Limited.
7.4.1. Lead365 Limited will only be obligated to supply replacement data for invalid records proven to equal or a maximum of 10% of volume of the data supplied.
7.4.2 Complaints or disputes concerning the data supplied must be made within 2 working days of receipt. Lead365 Limited will investigate and confirm the outcome.
7.4.3 The Client must supply all month end returns by the 5th working day of the following month, failure to do so will result in the full gross volumes becoming billable.
7.4.4 Lead365 Limited has the right to provide replacement Data should a dispute be validated in accordance with its internal procedures and compliance criteria.
7.5 Lead365 Limited shall not be liable for any indirect or consequential loss arising out of or in connection with this Agreement or its subject matter even if Lead365 Limited had notice of the possibility of such loss.
7.6 Lead365 Limited shall not be liable for any loss of business, loss of profits, loss of anticipated savings, loss of reputation, loss of goodwill, business interruption or increase in bad debt arising out of or in connection with this Agreement or its subject matter even if Lead365 Limited had notice of the possibility of such loss.
7.7 Lead365 Limited entire aggregate liability in respect of all claims, losses, damages and costs arising out of or in connection with this Agreement or its subject matter (whether in contract, tort including negligence, breach of statutory duty or otherwise) in any Year shall not exceed an amount equal to the sums received by or due toLead365 Limited from the Client under this Agreement in respect of that Year.
7.8 Notwithstanding any other term of this Agreement, Lead365 Limited does not limit or exclude liability for death or personal injury arising from its negligence or for fraudulent misrepresentation.
7.9 Except as expressly provided in this Agreement and subject to clause 7.8 all conditions and warranties or terms of equivalent effect whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
- PAYMENT AND COSTS
8.1 The Client shall pay the Price to Lead365 Limited together with all reasonable travel, accommodation and subsistence expenses incurred by or on behalf of Lead365 Limited during performance of any of the Services away from Lead365 Limited premises.
8.2 Value added tax (‘VAT’) is to be paid by the Client at the prevailing rate on all sums due under this Agreement. All sums due are quoted exclusive of VAT.
8.3 All sums due must be paid within 30 days of the date of Lead365 Limited invoice. Failure to comply with prompt payment will result in a reminder letter being sent on the 37th day and a fee of £100 being added to the value of the invoice, followed by a subsequent £25 fee every 7 days thereafter until the account is brought up to date.
9.1 Either Lead365 Limited or the Client may terminate this Agreement (including all licences granted hereunder) immediately on written notice if:
9.1.1 the other commits any material breach of this Agreement and such breach (where capable of remedy) is not remedied to the non-defaulting party’s reasonable satisfaction within 14 days of written notice specifying the breach and requiring its remedy; or
9.1.2 In respect of the other a resolution is passed or an order is made for winding up (save for the purpose of a bona fide reconstruction or amalgamation); or
9.1.3 In respect of the other an administration order is made, or a receiver or administrative receiver is appointed over any of its property or assets;
9.1.4 The other is dissolved or is insolvent or would be taken to be insolvent under section 123 of the, Insolvency Act 1986.
9.2 On termination of this Agreement or any licences for any reason, the Client shall:
9.2.1 Immediately return to Lead365 Limited all Deliverables (and all copies thereof); and
9.2.2 Delete all Deliverables (including all flags and other data and information appended to or forming part of any of the Client’s databases which are derived from the Deliverables) from the Client’s computer systems and other storage media; save that the Clients and its End User shall be entitles to retain data in respect of those individuals who have responded positively to a telemarketing calls by the client and shall be entitled to record any individuals who no longer with to receive telemarketing calls from the client or its end user on their suppression list.
9.2.3 Provide Lead365 Limited with a certificate of compliance with the provisions of this clause 9.2 signed by a duly authorised officer.
9.3 The Client agrees that, notwithstanding any termination or expiry of this Agreement, Lead365 Limited shall be entitled to retain archive copies of the Input for on-going legal and compliance purposes only.
9.4 Lead365 Limited may terminate any or all of the licences granted hereunder and/or this Agreement if as a result of any act or default of any third party Lead365 Limited is no longer permitted or licensed to provide the Services and/or to make the Deliverables available pursuant to this Agreement or if in Lead365 Limited’s reasonable opinion it is necessary to do so to comply with any law, regulation or applicable code of practice. In the event of such termination, Lead365 Limited shall refund to the Client a proportion of the Price in respect of such Services or Deliverables, such proportion to reflect the unexpired part of the period in respect of which the Price was paid. Save for such refund, in respect of matters referred to in this clause 9.4 (i) Lead365 Limited shall have no liability whatsoever to the Client; and (ii) Lead365 Limited) shall not be deemed to be in breach of any of its obligations under this Agreement.
9.5 Termination is without prejudice to any antecedent breach or to any continuing obligation. The provisions of clauses 1, 4, 5.4, 6, 7, 8, 9.2, 9.3 and 11 shall continue after termination or expiry of this Agreement.
This Agreement shall be deemed to have commenced on the Commencement Date and shall (subject to earlier termination under clause 9) as follows:
10.1 When there is a Minimum Term, this Agreement shall continue for the Minimum Term and thereafter for subsequent consecutive periods equal to the Minimum Term or consecutive periods of three (3) years (whichever is the shorter) (such periods hereinafter ‘Extended Terms’) until terminated by either party serving on the other not less than three (3) months prior written notice (such notice to expire on the last day of (i) the Minimum Term or (ii) any Extended Term).
10.2 When no Minimum Term is specified in the Schedule, this Agreement shall terminate automatically twelve months after completion of the Services.
11.1 The Agreement represents the entire agreement between the parties in relation to its subject matter and supersedes all previous written or oral communication.
11.2 No variation of this Agreement shall be binding on Lead365 Limited unless made in writing and signed by an authorised signatory of both the Client and Lead365 Limited
11.3 Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement (except for any obligation to make payment) arising from any cause beyond its reasonable control including any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion, industrial action or failure in telecommunications services.
11.4 The Client may not assign, sub-contract, sub-license or otherwise transfer any of its rights or obligations under this Agreement without Lead365 Limited prior written signed consent by an authorised signatory
11.5 Any concession or indulgence made by either party shall not be considered as a waiver of its rights.
11.6 The headings in this Agreement are for convenience only and do not affect its meaning or construction.
11.7 Any use of “including” shall be deemed to mean “including without limitation”.
11.8 This Agreement shall be construed in accordance with English Law and the English Courts shall have exclusive jurisdiction.
11.9 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely on or enforce any term of this Agreement