THE DIGITAL TRAILBLAZER LEAD GENERATION CAMPAIGN
TERMS AND CONDITIONS
Engagement of Yomp Marketing Limited
This document is to confirm the basis of the Digital TrailBlazer Lead Generation Campaign Agreement (“the Agreement”) between (“the Client”) and (“the Company”) Yomp Marketing Limited company registered number 6048269 whose registered office is Cedars Coach House, Church Road, Windlesham, Surrey, GU20 6BL.
5.1 Subject to the Client paying to the Company all fees and other sums due to the Company under the Contract the Company grants to the client:
5.1.1 a royalty-free licence to use the Bespoke materials;
5.1.2 a non-exclusive and non-transferable licence to use the Company materials (in relation to any software Deliverables, in object form only) in respect of the Contract; and
5.1.3 subject to a third party supplier’s standard terms and conditions a non-exclusive and non-transferable sub licence to use any third Party materials (in relation to any software Deliverables, in object form only) in respect The Client grants to the Company a non-exclusive, non-transferable, licence to use the Client Materials for the purposes of the Contract.
5.2 The Client warrants to the Company that the Client (or its licensors) are the owner of any Intellectual Property Rights in the Client materials and the Company’s use of the Client Materials shall not infringe any third party Intellectual Property Rights.
5.3 The Client shall indemnify and hold the Company harmless from and against all and any losses, liabilities, demands, claims, costs and expenses (including legal costs and disbursements on any indemnity basis) and damages incurred or suffered by the Company, and any damages awarded against the Company, arising directly or indirectly as a result of or in connection with any claim that the Client Materials infringe any Intellectual Property Rights of any third party or are libellous, defamatory or obscene.
5.4 The Client shall not (except to the extent necessary to make proper use of the Deliverables): (a) alter, adapt, reverse engineer or decompile the Company Materials except as permitted by law nor attempt to do any of those things: (b) reproduce or deal in the Company materials (in whole or in part) in any way; (c) make copies of the Company Materials except to the extent reasonably necessary for back up purposes or for other purposes permitted by the Contract; (d) Make the Deliverables available to any third party without the Company’s prior written consent; and remove, suppress or modify in any way any proprietary making of the Company, including any trademark or copyright notice, on or in the Deliverables.
5.5 The Client acknowledges that the Company (or its licensors) are the owner of all Intellectual Property Rights in the Company Materials and that nothing in the Contract shall result in the Client owning any Intellectual Property Rights in the Company Materials.
5.6 Notwithstanding clause 5.5 the Client hereby assigns with full title guarantee any such right, title and interest in the Company materials which may have been vested in the Client for any reason absolutely to the Company. Further, the Client will execute such further documents and undertake such further acts as the Company may reasonably require from time to time, at the Company’s expense, to give full effect to the assignment in clause 5.6.
5.7 The Client agrees with the Company not to cause or permit anything to be done which may damage or endanger the Company’s intellectual property or any title to such intellectual property or assist or allow others to do so.
5.8 The Client acknowledges that the relevant third party supplier (or its licensors) is the owner of all intellectual Property Rights in the Third Party Materials and that nothing in the contract shall result in the Client owning any Intellectual Property Rights in the Third Party Materials.
6.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
6.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
6.1.2 fraud or fraudulent misrepresentation; or
6.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
6.2 Whilst the Company considers The Digital TrailBlazer Lead Generation Campaign to be a unique marketing system by bringing together the supply of multiple digital services the Company does not provide any warranty, representation, undertaking or guarantee as to the level of financial return or savings in other marketing expenditure that the Digital TrailBlazer Lead Generation Campaign will provide to the client. The Client also understands that the name “The Digital TrailBlazer Lead Generation Campaign” is a marketing term, and it does not mean it covers any and all forms of digital marketing.
6.2.1 The Company does not guarantee nor warrant any particular outcome from using The Digital TrailBlazer Lead Generation Campaign platform. This includes the number of leads that can be generated, the conversion rates of any part of the process or the monetary return on investment. Much of the success of any marketing is determined by the demand for the product, the business strategy of the company including pricing, the management of the Client’s company and
6.2.2 the money available to invest in marketing. Results are never instant and the purchase of The Digital TrailBlazer Lead Generation Campaign does not guarantee the success of your business.
6.2.3 The fee you pay the Company may include a limited budgeted figure for fees or payments made to companies that might carry your advertising such as Facebook, Google, LinkedIn or Bing. These payments have set budgets which the Company will use to promote the Clients business at certain times.
6.3 subject to clause 6.1:
6.3.1 the Company shall under no circumstances whatsoever be liable to the Client for losses arising out of or in any way connected with (1) the provision of information by the Client to the Company or (2) the Client’s failure to provide information to the Company either punctually or at all;
6.3.2 the Company shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss (which means without limitation any loss of turnover; loss of business; loss of goodwill or similar losses; loss of anticipated savings; or any other economic loss, costs, damages, charges or expenses) arising under or in connection with the Contract; and
6.3.3 the Company’s total liability to the Client in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500.00.
6.4 the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
6.5 No claim regardless of its cause of action arising out of the Contract may be brought against the Company more than six months after the cause of action arises.
6.6 The Client warrants that it is contracting with the Company as a person dealing in the course of a business, and not as a consumer.
6.7 This clause 6 shall survive termination of the Contract.
7.1 A party (receiving party) shall 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 to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7.1 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Client if:
8.1.1 if the Client fails to pay any amount due under this Contract on the due date for payment;
8.1.2 the Client commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
8.1.3 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
8.1.4 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);
8.1.5 the Client suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
8.2.1 the Client (being an individual) is the subject of a bankruptcy petition or order, or dies, or by reason of illness, or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, the Company may suspend the supply of any or all of the services comprising The Digital Trailblazer Lead Generation Campaign under the Contract or any other contract between the Client and the Company if the Client fails to pay any amount due under this Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.6, or the Company reasonably believes that the Client is about to become subject to any of them.
8.4 On termination of the Contract for any reason;
8.4.1 the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of any other services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt.
8.4.2 The Client shall return all of the Company Materials and any Deliverables which have not been fully paid for;
8.4.3 the accrued rights and remedies of the parties as at 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
8.4.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
9.1 For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of the company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, 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.
9.2 The Company shall not be liable 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.
9.3 If the Force Majeure Event prevents the Company from providing any or all of the services comprising The Digital TrailBlazer Lead Generation Campaign for more than 12 weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client.
10.1 Notwithstanding the Company’s warranty to the Client that it will exercise reasonable care and skill in the provision of The Digital TrailBlazer Lead Generation Campaign, if the Client has a complaint about the provision of the Company’s services, then in the first instance, they are invited to meet with the Company’s representative at the Company’s Head office, so that the matter may be discussed and reviewed. The Company will endeavour to find a satisfactory solution to resolve any genuine complaint that the Client has. Complaints need to be set out in full and in writing prior to this meeting. Complaints must be addressed as soon as they arise and a face to face meeting arranged for as soon as practically possible.
11.1 Assignment and other dealings.
11.1.1 The Company may at any time assign, transfer, mortgage, 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.
11.1.2 The Client shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first class post or other next working day delivery service, or by commercial courier, fax or email.
11.2.2 A notice or other communication shall be deemed to have been received:
11.2.3 If delivered personally, when left in respect of the Client at the address referred to in the Registration Form and in respect of the Company at its correspondence address; if sent by pre-paid first class post or other next working day delivery service, or by commercial courier, fax or email.
11.2.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the 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 the Contract.
11.3.2 If the Company gives notice to the Client of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extend possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A waiver of any right under the Contract or law 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 prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Company.
11.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
12.1 Definitions. In these Conditions, the following definitions apply:
“Bespoke Materials”; any materials included in the Deliverables by the Company specifically for the Client and as set out in the Client On Boarding Guide.
“Business Day”; a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Client”; the person or firm who purchases The Digital TrailBlazer Lead Generation Campaign from the Company as evidenced by such person or firm signing the Registration Form.
“Client Materials”; any materials which are provided or made available to the Company by or on behalf of the Client, including copy, artwork, layouts, designs, paper, software, printed materials or electronic files for use by the Company or incorporation into the Deliverables.
“Commencement Date”; the date as set out in the Registration form when the Company shall start to provide to the Client The Digital TrailBlazer Lead Generation Campaign.
“Company”; Yomp Marketing Limited, a limited liability company incorporated in England (registered number 6048269) with registered office address at Cedars Coach House, Church Road, Windlesham, Surrey, GU20 6BL and correspondence address at: Romalco House, 49 Guildford Road, Bagshot, Surrey, GU19 5NG.
“Company Materials”; any materials developed by the Company either before or during the Contract and included in the Deliverables excluding the Bespoke Materials.
“The Digital TrailBlazer Lead Generation Campaign”; the 11 step process and services being provided by the Company that together comprise the marketing campaign known as The Digital TrailBlazer Lead Generation Campaign, as set out in the Client On Boarding Guide.
“Conditions”; these terms and conditions are amended from time to time in accordance with clause 11.7.
“Contract”; the contract between the Company and the Client for the supply of The Digital TrailBlazer Lead Generation Campaign in accordance with these conditions, the Registration Form and the Customer On Boarding Guide.
“Customer On Boarding Guide”; the description or specification of each of the services comprising the 11 step process comprising The Digital TrailBlazer Lead Generation Campaign.
“Deliverables”; the deliverables of the Digital TrailBlazer Lead Generation Campaign as set out in the Customer On Boarding Guide.
“Fee”; the price for The Digital TrailBlazer Lead Generation Campaign as set out in the Registration Form.
“Force Majeure Event”; has the meaning given to it in clause 9.1.
“Intellectual Property Rights”; patents, rights to inventions, copyright and related rights, trademarks, business names and domain names, rights in get-up, 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 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.
“Registration Form”; the Client’s written acceptance of the Contract.
“Specification”; the specification for The Digital TrailBlazer Lead Generation Campaign as set out in the Schedule to these Conditions.
“Third Party Materials” any materials owned, supplied or licensed by a third party either before or during the Contract that are used in providing The Digital TrailBlazer Lead Generation Campaign and/or included in the Deliverables as set out in the Customer On Boarding Guide.
12.2 Construction. In these Conditions, the following rules apply:
12.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
12.2.2 a reference to a party includes its successors or permitted assigns;
12.2.3 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;
12.2.4 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
12.2.5 a reference to writing or written includes faxes and emails.