1.1) The definitions and rules of interpretation in this clause apply in these Terms & Conditions of Business (“Agreement”):
Client Materials: all information, text, graphics, photos, designs, content and materials provided by you to us for use in the provision of the Services;
Deliverables: all websites, videos, animations, graphics, designs, graphics, illustrations, artwork, text, printed materials; data; diagrams; reports and specifications (including drafts products and materials developed or provided by Lead Genera to you in relation to the Services in any media). The term ‘Deliverables’ shall also include the ‘Final Deliverables’;
Fees: any fees payable by you to Lead Genera under this Agreement, as set out in the applicable Proposal;
Final Deliverables: the finalised version of the Deliverables;
Intellectual Property Rights: any patents, copyright, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights or industrial 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: a document detailing the Services and/or Deliverables to be provided by Lead Genera to you, as agreed by the parties in writing.
Services: the services to be provided by Lead Genera to you under this Agreement, as specified in the applicable Proposal. This can include: lead generation, marketing consultancy, website development and design and animation; and
1.2) Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.3) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4) 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.
1.5) A reference to ‘writing’ or ‘written’ includes email unless stated otherwise, but not faxes.
2.1) This Agreement shall:
2.1.1) apply to and be incorporated into any Services to be provided by Lead Genera to the Client; and
2.1.2) prevail over any inconsistent terms or conditions contained in, or referred to in, the Client’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2) In consideration of payment to Lead Genera of the Fees, the Client engages Lead Genera under this Agreement, and Lead Genera agrees, to provide the Services and produce the Deliverables in accordance with the applicable Proposal.
3.1) The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
3.2) We will provide the Services to you using reasonable care and skill and we will use reasonable efforts to deliver the Deliverables to you in accordance with the applicable Proposal.
3.3) We will use reasonable efforts to complete the Services within any timeframe agreed with you, but for the avoidance of doubt, time shall not be ‘of the essence’ for the performance of the Services.
3.4) From time to time we may request that you provide us with certain Client Materials, further information or assistance to enable us to fully perform the Services. You agree to cooperate with us to expedite the provision of the Services. You shall be responsible for the accuracy, completeness and propriety of any information concerning your products and/or services and any other Client Materials which you furnish to us verbally or in writing in connection with the performance of this Agreement. If we are unable to perform our obligations to you under this Agreement because we have been prevented or delayed by you, such as your failure to do something requested of you, we will not be liable for any delays which may occur in the provision of the Services. If the delay in providing the Services exceeds seven days, you must pay us for any costs or expenses we have incurred as a result of the delay and all work provided by us up to that point in time.
3.5) Any projects that go dormant due to the lack of engagement of the Client for longer than 45 days will incur a fee to resume work at the sole discretion of Lead Genera.
3.6) You will be responsible for obtaining all licences and permissions in the Client Materials which we may need in order to fully perform the Services. You hereby confirm that you have all the necessary rights and ownership in the Client Materials to permit us to use them for the provision of the Services without infringing any third party Intellectual Property Rights.
3.7) You will check that the terms of each Proposal and any other information provided to us is correct and accurately reflects your requirements.
4.1) We will notify you when the Deliverables are ready for inspection and will provide you with a draft version for your review. We will give due consideration to comments received from you, and if necessary, we will provide you with up to 1 set(s) of minor revisions (collectively not to exceed a total of 10 hours’ of a member of Lead Genera’s personnel’s time). The time allocation for each set of revisions shall be distributed evenly (i.e. 10 hours per set of revisions), unless we notify you that a set of revisions will require additional time (in which case the time allocation for future sets of revisions (if available) will be reduced accordingly).
4.2) If any further amendments or revisions are required thereafter, Lead Genera will provide such additional Services at its headline rates in force from time to time (available on request) in addition to the Fees set out in the Proposal.
4.3) On completion of the Deliverables, we will provide you with the Final Deliverables for your final approval. You will be responsible for checking, proofreading and approving the Final Deliverables before the Services are deemed to be complete. If you do not let us know whether you approve the Final Deliverables within 14 days of us sending them to you, you will be deemed to have accepted and approved the Final Deliverables at the end of this 14 day period.
4.4) Once you have approved the Final Deliverables to ensure that they are complete and satisfactory, a copy of the Final Deliverables will be provided to you and/or made publicly available (as specified in the Proposal) once full payment of all outstanding Fees has been received by Lead Genera.
4.5) Lead Genera will not be liable for any of the contents of, or errors in, the Final Deliverables in any medium after the Client has approved them in accordance with clause 4.3 above.
4.6) Lead Genera reserves the right to refuse to create, use, publish or broadcast all or any part of the Deliverables that it considers in its sole discretion is obscene, threatening, menacing, offensive, discriminatory, defamatory, morally unsuitable, in breach of confidence, infringes a third party’s Intellectual Property Rights or is otherwise illegal.
5.1) All Client Materials and/or Deliverables which we hold and store for you are kept solely at your risk. You are responsible for insuring any such Client Materials or Deliverables as you deem to be appropriate.
5.2) We will store the electronic files of the Final Deliverables up until the Services have been completed and we will make these available to you to download upon full payment of the Fees by you. Following a period of 30 days, we may delete the files at our discretion without any liability to you.
6.1) The Fees will be payable at the milestones stated in the Proposal document.
6.2) In the event that you submit any functionality or feature requests above and beyond those listed in the Proposal specification, we shall provide you with an additional Fee proposal to undertake such works.
6.3) The Client must supply Lead Genera with all necessary purchase order numbers and other internal information required for invoice processing within a reasonable period before each relevant Fee milestone.
6.4) Any payments required in advance of the Services commencing shall be payable on demand, immediately. Any other fees shall be payable within 30 days of the date of the relevant invoice.
6.5) VAT and any expenses to be incurred will be shown separately on all invoices (where applicable).
6.6) You will not be entitled to set-off, counterclaim, deduct or withhold payment under this Agreement.
6.7) If any additional expenses are required, we will obtain your written consent before we incur such expenses.
6.8) If you do not pay an invoice issued to you by the relevant due date, we reserve the right to take the following actions:
6.8.1) charge interest on any outstanding sums from the due date for payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
6.8.2) deleting or disposing of any Deliverables that we may hold on your behalf. Please note that we will not be responsible for any loss or damage you may suffer as a result of any deletion or disposal; and/or
6.8.3) suspending the Services we provide to you. We will not be liable for any loss of data that may occur in relation to the suspension of the Services. Please note: suspension of hosting or web servers due to non-payment could result in a negative effect on your website’s SEO and rankings,
and in addition In the event payment is not made within 15 days, Lead Genera will charge a late payment fee of 5% per month on any overdue and unpaid balance not in dispute, to cover the manpower, interest, and other costs Lead Genera pays for carrying overdue invoices from the Client. In the event that we incur legal fees, costs and disbursements in an effort to collect our invoices, in addition to interest on the unpaid balance, you agree to reimburse us for these expenses.
6.9) We may set-off any liability that you may have to us against any liability that we may have to you.
7.1) When providing the Services, we may provide you with stock images which will include a licence for commercial use by you.
7.2) You hereby grant Lead Genera a non-exclusive, perpetual, irrevocable, transferable, royalty-free, worldwide licence to use the Client Materials solely for use in the provision of the Services and the creation and use of the Deliverables.
7.3) We will retain all Intellectual Property Rights and other rights in the Deliverables. Upon payment of the full Fees, we will grant you a licence for all Intellectual Property Rights in the Final Deliverables on a non-exclusive, perpetual, irrevocable, non-transferable, royalty-free, worldwide basis to allow you to make reasonable use of the Final Deliverables.
7.4) You agree to pay for all costs associated with the transfer of the Final Deliverables.
7.5) You acknowledge that Lead Genera and its personnel may use any non-confidential details of the Services and the Deliverables (including sharing any analysis or metrics gained from any testing) for a number of purposes, including case studies, publications, exhibitions, competitions and other promotional purposes (such as use in print and on our website). You hereby permit Lead Genera and other associated parties to publish the name and standard logo of the Client for such purposes.
7.6) You agree that any websites or videos created by Lead Genera, and the use of the Final Deliverables by you in any publicity or promotions (e.g. awards, competitions, press releases etc), will be accompanied with the statement, “Created by Lead Genera.” Containing a hyperlink to our website at https://leadgenera.com/ (where this is possible based on the medium of the statement). In respect of websites, this attribution will be detailed in the Website footer. In respect of any videos, this attribution will be detailed in the video description field of the relevant video hosting website.
7.7) The Client acknowledges that the Deliverables have been created in accordance with the Client’s instructions and/or specifications and have been approved by the Client pursuant to clause 4.3. The Client will therefore indemnify and keep Lead Genera and its officers, employees, consultants, agents and sub-contractors indemnified, on demand, against all losses, costs and liabilities and all expenses, including reasonable legal or other professional expenses, suffered or incurred by Lead Genera arising out of or in connection with any claim:
7.7.1) in relation to the Client Materials or any Deliverables infringing a third party’s Intellectual Property Rights;
7.7.2) in relation to the Client Materials’ or any Deliverables’ contents, accuracy or completeness; and/or
7.7.3) for any defamatory, offensive or illegal content, information or materials provided by you either directly or indirectly to us.
8.1) A party (“Receiving Party”) will 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 (either orally, in writing or by demonstration) to the Receiving Party by the other party (“Disclosing Party”) or its employees, agents or sub-contractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (“Confidential Information”).
8.2) In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree:
8.2.1) to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this Agreement;
8.2.2) not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this Agreement and provided that such officers, employees, consultants, agents and sub-contractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this Agreement); and
8.2.3) to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.
8.3) Nothing in this Agreement will prevent the Receiving Party from using or disclosing any Confidential Information which:
8.3.1) is in or comes into the public domain in any way without breach of this Agreement by the Receiving Party or any person or entity to whom it makes disclosure;
8.3.2) the Receiving Party can show was: (i) in its possession or known to it by being in its use or being recorded in its files prior to receipt from the Disclosing Party and was not acquired by the Receiving Party from the Disclosing Party under an obligation of confidence; or (ii) to have been independently developed by the Receiving Party without reference to the Confidential Information;
8.3.3) the Receiving Party obtains or has available from a source other than the Disclosing Party without breach by the Receiving Party or such source of any obligation of confidentiality or non-use;
8.3.4) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or
8.3.5) is required by law to be released (e.g. by a court order), provided that, when permitted by the applicable law, the Disclosing Party is given as much prior written notice as possible of such request.
8.4) This clause 8 shall survive termination of this Agreement, however arising.
9.1) Each party will ensure that in the performance of its obligations under this Agreement it will at all times comply with all applicable Data Protection Laws and any other applicable privacy laws and regulations.
9.2) In the event that Personal Data is processed under this Agreement, the parties agree to negotiate a suitable Data Processing Agreement in good faith.
10.1) This clause 10 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party:
10.1.1) arising under or in connection with this Agreement;
10.1.2) in respect of any use made by the Client of the Services and/or the Deliverables or any part of them; and
10.1.3) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
10.2) All warranties, conditions and other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
10.3) Nothing in this Agreement limits or excludes the liability of either party for death or personal injury which results from negligence or for any damage or liability incurred by a party as a result of fraud or fraudulent misrepresentation by the other party.
10.4) Subject to clause 10.3 and excluding any provisions in this Agreement where an indemnity is provided by either party:
10.4.1) neither party will be liable for loss of profits, loss of business, depletion of goodwill and/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; and
10.4.2) each party’s total liability to each other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising under or in connection with this Agreement will be limited to 100% of the price paid or payable under the relevant Proposal for the Services provided to the Client by Lead Genera giving rise to such liability.
10.5) Whilst we will use our reasonable endeavours to make sure that any Client Materials you provide to us are not lost or damaged, we will not be responsible or liable for any loss or damage that may occur to them.
11.1) You are entitled to terminate this Agreement and any Proposal at any time upon providing us with at least 60 days’ written notice. In this event, you will be liable to pay us for any services provided up to the effective date of termination and for any cost commitments that we have made which cannot be cancelled. Lead Genera will use commercially reasonable efforts to minimise its costs and expenses.
11.2) Without limiting any other rights or remedies, either party (“Terminating Party”) may terminate this Agreement with immediate effect by providing written notice to the other party (“Defaulting Party”) on or at any time after the occurrence of any of the events specified below:
11.2.1) a breach by the Defaulting Party of its obligations under this Agreement which (if the breach is capable of remedy) the Defaulting Party has failed to remedy within 30 days after receipt of notice in writing from the Terminating Party requiring the Defaulting Party to do so; or
11.2.2) an event, including (or similar in nature to) the following:
a. the Defaulting Party is unable to pay its debts as they fall due;
b. the Defaulting Party goes into liquidation either compulsorily (except for the purpose of reconstruction or amalgamation) or voluntarily;
c. a receiver is appointed in respect of the whole or any part of the Defaulting Party;
d. a provisional liquidator is appointed to the Defaulting Party or the Defaulting Party enters into a voluntary arrangement or any other composition or compromise with the majority by value of its creditors or has a winding-up order or passes a resolution for the voluntary winding-up or has an administrative receiver appointed or takes steps towards any such event; or
e. the Defaulting Party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
11.3) If this Agreement terminates for any reason, notwithstanding any other provision, all charges payable by the Client to Lead Genera under this Agreement will become due and payable immediately. This clause is without prejudice to any right by Lead Genera to claim for interest or any other right under this Agreement.
11.4) Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
Neither party shall be liable for any failure to perform its obligations under this Agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this Agreement and which are beyond the parties’ reasonable control (including, without limitation, strikes, lock-outs or other industrial disputes (involving the workforce of Lead Genera), failure of a utility service or transport network, war, riot, civil commotion, terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors) (“Force Majeure Event”). If a Force Majeure Event continues for a period of 30 days or more, either party may terminate this Agreement immediately by providing the other party with written notice.
13.1) Where you engage us to conduct paid advertising as part of the Services, we will apply a management fee on a monthly retainer basis (“Advertising Management Services”). The details of the Advertising Management Services and the duration of the retainer will be documented in a Proposal.
13.2) Pursuant to each advertising campaign, you must pay any advertising fees directly to the relevant advertising platform (“Platform Advertising Fees”).
13.3) You acknowledge and agree that we do not guarantee that any paid advertising campaign will produce increased revenue or sales and we will have no liability to you where the advertising fees do not generate the level of return that you expect from the relevant campaign. Notwithstanding, where we fail to generate 50% of the estimated leads (as notified to you by us prior to the start of the relevant advertising campaign) in the first three months of the advertising campaign (“Initial Period”), we will provide you with a refund of 50% of the Advertising Management Services fees for the Initial Period within 14 days of the end of the Initial Period. This refund:
13.3.1)is contingent upon you strictly following our advertising proposal, strategy, advice and timescales provided for the relevant campaign; and
13.3.2)excludes any Platform Advertising Fees.
14.1) This Agreement 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. Each party acknowledges that in entering into this Agreement 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
14.2) It may be necessary for us to update this Agreement and its terms from time to time. If you continue to use the Services after we have informed you of any amendments or additional terms to the Agreement, you will be deemed to have accepted these changes and they will be incorporated into this Agreement.
14.3) Subject to clause 14.2, no variation of this Agreement will be effective unless it is in writing and signed by both parties.
14.4) No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
14.5) You shall not, without the prior written consent of Lead Genera, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement. Lead Genera 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 this Agreement.
14.6) All notices must be in writing and will be deemed given when mailed by registered or certified mail, return receipt requested, to the other party’s main business address. Serving notice by email or fax will not be accepted as an effective method of providing notice of a claim under this Agreement.
14.7) No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
14.8) Nothing in this Agreement is intended to, or will be deemed to establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.
14.9) If any provision or part-provision of this Agreement 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 Agreement.
14.10) Any Proposal may be signed in counterparts. Each signed copy of a document will be deemed to be an original, but all signed copies, when taken together, will constitute one and the same agreement.
14.11) This Agreement 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 English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts.