- Interpretation
The following definitions and rules of interpretation apply in these conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.
Contract: the contract between YLM and the Client for the supply of Services in accordance with these Conditions.
Controller & Personal Data: have the meanings given in the Data Protection Legislation.
Client: the person or firm who purchases Services from YLM.
Client Default: has the meaning set out in clause 4.2.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
Fees: the fees payable by the Client for the supply of the Services in accordance with clause 5.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Proposal: means the proposal provided to the Client by YLM detailing the Services and Specification.
Services: the lead generation services supplied by YLM to the Client as set out in the Specification.
Specification: the description and details of the Services provided in writing by YLM to the Client in the “Your Investment” section of the Proposal.
UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
YLM: Your Lead Machine Limited registered in England and Wales with company number 11408901.
1.2 Interpretation:
(a)A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email.
2. Basis of contract
2.1 The Contract shall only come into force and be valid once the Client has signed the Proposal detailing the Services at which point and on which date the Contract shall come into existence (Commencement Date).
2.2 Any descriptive matter or advertising issued by YLM, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 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 law, trade custom, practice or course of dealing.
2.4 The Proposal, or any other quotation, given by YLM is only valid for a period of 10 Business Days from its date of issue.
3. Supply of Services
3.1 YLM shall supply the Services to the Client in accordance with the Specification in all material respects
3.2 YLM shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 YLM reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and YLM shall notify the Client in any such event.
3.4 YLM warrants to the Client that the Services will be provided using reasonable care and skill.
3.5 YLM shall use reasonable efforts to provide the Services, however, YLM makes no representations, warranties, or guarantees that the Services will generate a specific volume or quantity of leads for the Client. The Client acknowledges that lead generation results may vary and that YLM’s obligations are limited to performing the Services as agreed, without assurance of any particular outcomes. YLM shall not be liable to the Client in connection with a lack or leads being produced through the Services, or where such leads are below the Client’s own expectations, and the Client shall remain liable to pay all Fees under the Contract in full.
3.6 The Client acknowledges that any leads provided by YLM may or may not result in successful sales or other desired outcomes. The Client is solely responsible for managing, pursuing, and converting leads generated through the Services. YLM bears no responsibility, and no liability to the Client, for the Client’s ability to convert leads into sales, revenue, or any other business results.
4. Client’s obligations
4.1 The Client shall:
(a) ensure any information it provides are complete and accurate;
(b) co-operate with YLM in all matters relating to the Services;
(c) provide YLM with such information and materials as YLM may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(e) comply with any additional obligations as set out in the Proposal.
4.2 If YLM’s 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):
(a) without limiting or affecting any other right or remedy available to it, YLM shall 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 in each case to the extent the Client Default prevents or delays YLM’s performance of any of its obligations;
(b) YLM shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from YLM’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
(c) the Client shall reimburse YLM on written demand for any costs or losses sustained or incurred by YLM arising directly or indirectly from the Client Default.
5. Fees and Payment
5.1 The Fees for the Services shall be as detailed within the Proposal.
5.2 YLM shall invoice the Client monthly in advance.
5.3 The Client shall pay each invoice submitted by YLM:
(a) within 14 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by YLM, and
time for payment shall be of the essence of the Contract.
5.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time which shall be included, and payable by the Client, on any relevant invoice provided under clause 5.2.
5.5 If the Client fails to make a payment due to YLM under the Contract by the due date, then, without limiting YLM’s remedies under clause 9, YLM shall be entitled to:
(a) charge the Client interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.5 (a)will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%;
(b) suspend all Services under the Contract, or any other contract between the Client and YLM; and
(c) charge the Client for all costs incurred by the Company (including legal fees and debt collection fees), which will become immediately due and payable by the Client.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6. Intellectual property rights
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by YLM.
6.2 YLM grants to the Client a non-exclusive, non-transferrable licence to read, possess, copy and modify any documentation YLM creates and provides to the Client as part of the Services.
6.3 All Intellectual Property Rights in any materials provided by the Client to YLM under the Contract, to which the licence has been provided in clause 6.4, shall be owned by the Client.
6.4 The Client grants YLM a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Client to YLM for the term of the Contract for the purpose of providing the Services to the Client.
7. Data Protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the parties are both Controllers in their own right. Should this determination change, the parties will work together to produce suitable data protection clauses to replace this clause 7.
7.3 Without prejudice to the generality of clause 7.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to YLM for the duration and purposes of the Contract.
7.4 Should the Client fail to abide by the terms of this clause 7 or the Data Protection Legislation and this results in losses for YLM, the Client agrees to indemnify and keep indemnified YLM against all costs, expenses, charges and losses incurred.
8. Limitation of liability
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in this clause 8 shall limit the Client’s payment obligations under the Contract.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3, YLM’s total liability to the Client shall not exceed the amount of Fees paid by the Client to YLM under the Contract in the preceding 12 months prior to any claim.
8.5 Subject to clause 8.2 and clause 8.3, this clause 8.5 sets out the types of loss that are wholly excluded:
(a) loss of profits.
(b) loss of sales or business.
(c) loss of agreements or contracts.
(d) loss of anticipated savings.
(e) loss of use or corruption of software, data or information.
(f) loss of or damage to goodwill; and
(g)indirect or consequential loss.
8.6 YLM has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by any legislation are, to the fullest extent permitted by law, excluded from the Contract.
8.7 This clause 8 shall survive termination of the Contract.
9. Term & Termination
9.1 The Contract shall continue for the fixed duration as stated within the Proposal.
9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(c) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.3 Without affecting any other right or remedy available to it, YLM may terminate the Contract with immediate effect 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.
9.4 Without affecting any other right or remedy available to it, YLM may terminate the Contract at any time by giving the Client one month’s written notice.
10. Consequences of termination
10.1 On termination or expiry of the Contract the Client shall immediately pay to YLM all of YLM’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted or for the Services for the remainder of the Contract term (if terminated early), YLM shall submit an invoice, which shall be payable by the Client immediately on receipt.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, 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.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11. General
11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 Assignment and other dealings.
(a) YLM may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of YLM.
11.3 Confidentiality
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 Entire agreement.
(a) The Contract 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.
(b) Each party acknowledges that in entering into the Contract 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.If any provision or part-provision of this Contract deleted under this clause 11.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.8 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or by email.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission.
(c) This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
12. Dispute Resolution
12.1 Should the Client be dissatisfied with the Services at any time, the Client should contact YLM immediately by either emailing or calling Dhruval Patel on 02382355441 or drew@yourleadmachine.co.uk.
12.2 If any dispute arises in connection with the Contract, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR.
12.3 The Client may not commence any court proceedings in relation to any dispute arising out of the Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated, or YLM has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. YLM may commence court proceedings at any time, whether before or after mediation.
