The following are Product Specific Terms and Conditions
Advice and Advice Based Services Provided by LeadGenerators
Graphic and Web Design Services ("Design Services")
General Terms & Conditions
1. Introduction
1.1 These terms and conditions ("Terms") together with a service proposal supplied by LeadGenerators to Client (as referred to in the service proposal) ("Service Proposal") will form a binding contract between the Client and LeadGenerators (hereinafter (as applicable) together referred to as "us") which shall constitute the entire agreement between us and apply to any trading agreement or other contract or arrangement between us.
1.2 These Terms apply to the exclusion of all other terms or conditions of contract the Client may propose and shall not be varied unless agreed in writing, signed by LeadGenerators.
1.3 The Client's signature on an agreement or a Service Proposal is not required in order for contracts to be legally binding. The use of our services and/or receipt by LeadGenerators of an email approving, confirming or requesting the supply of our service or any initial payment shall constitute agreement.
2. Nature of Relationship
2.1 In consideration of the payment by Client to LeadGenerators of the costs and/or fees as set out in the Service Proposal ("Costs and Fees"), LeadGenerators agrees to provide to Client the goods and services described in the Service Proposal ("Works") in accordance with the Service Proposal, with reasonable and due care in accordance with and subject to these Terms.
2.2 LeadGenerators undertakes that the Works shall be faithful to the basic conceptualisation of the pitch to Client or Service Proposal and reflect the same standards of quality and integrity.
2.3 Nothing in these Terms or any agreement between us gives rise to any exclusive relationship between us and nothing in these Terms shall prevent LeadGenerators acting for or providing goods and services the same or similar to the Works to any third party.
2.4 The Client and LeadGenerators are independent parties and nothing in these Terms or any agreement shall constitute either party as the employer, principal, agent or partner of or joint venture with the other. Neither the Client nor LeadGenerators has any authority to assume or create any obligation or liability, either expressly or implied, on behalf of the other.
2.5 No person who is not a party to these Terms or any agreement between us shall be entitled to enforce any of the Terms pursuant to the Contracts (Rights of Third Parties) Act 1999.
2.6 The Client shall not assign the benefit or burden of any agreement between us without the prior written consent of LeadGenerators.
2.7 Every effort is made by LeadGenerators to ensure that information presented by its service and/or Works is accurate. LeadGenerators, its agents, representatives or employees cannot accept any liability arising as a result of incorrect information being provided by Client.
3. Client
3.1 Client will co-operate with and act in good faith towards LeadGenerators and, on request, undertake such acts and provide such source materials (including those listed in the Service Proposal or other communication) ("Materials") as LeadGenerators are to incorporate into the Works, or as LeadGenerators require to carry out its obligations hereunder.
3.2 In the event that the Client does not undertake those acts or provide those Materials required under clause
3.1 above within a reasonable time (and at least within 21 days) of being requested to do so, including without limitation carrying out any changes, modifications or optimisations to Client's web site or other Materials as requested, recommended or required by LeadGenerators, LeadGenerators shall be entitled to invoice and be paid for the remaining Works as if Client had done so whether such are provided or not.
4. Survival of Contract
4.1 Where one or more of the Terms are held to be void or unenforceable for whatever reason, the remainder of the Terms will remain in full force and effect.
5. Jurisdiction
5.1 These Terms are made in accordance with the laws of England and the parties hereto submit to the exclusive jurisdiction of the English courts, further the United Kingdom shall be considered the place of first publication of any material on the internet.
6. Change of Terms and Conditions
6.1 LeadGenerators reserves the right to change these Terms at any time by posting revised terms and conditions on the LeadGenerators' web site.
7. Termination
7.1 Except for agreements between us where a specific period of time is specified, and unless otherwise stated, either party may terminate any service agreement by giving 30 days written notice to the other party of such termination. For the avoidance of doubt Client may not unilaterally cancel its order of the Works or otherwise terminate its agreement with LeadGenerators (except for material breach by LeadGenerators of a fundamental term of this Agreement) at any time without full payment of the Costs and Fees.
7.2 LeadGenerators shall be entitled to immediately restrict, suspend or terminate the Works and the Client's use of any Works and or terminate this Agreement upon the Client's material breach of this Agreement (including without limitation the non-payment of any sum as and when due) unless the Client remedies such breach within 14 days of its occurrence.
7.3 LeadGenerators reserve the right to refuse or break a contract without prior notice, if it is believed that the Client's business, its Website, or any of its Materials is illegal, racist, defamatory, immoral, obscene and/or pornographic or otherwise in its reasonable opinion deems unacceptable.
7.4 Either party may by written notice to the other terminate this agreement immediately if one of the following events occurs: (a) either party goes into liquidation or makes any arrangement or composition with its creditors or is otherwise unable to pay its debts within the meaning of Section 123 Insolvency Act 1986; (b) either party's ability to carry out its obligations under this agreement is prevented or substantially interfered with for any reason for a period in excess of three months (whether or not within the control of such party) including without limitation by reason of any regular law decree or any act of state or any other action of a government.
7.5 In the event that work is terminated or postponed, LeadGenerators reserves the right to invoice pro-rata for all Works completed up to and including the notification date. LeadGenerators also reserves the right to invoice for all expenses incurred on behalf of the Client up to and including the notification date.
7.6 During the course of any agreement between us and for a period of 12 months afterwards, the Client shall not solicit the staff of LeadGenerators or entice them to transfer their employment or services.
8. Events Beyond the Control of LeadGenerators
8.1 LeadGenerators will not be liable for breach of contract and/or in any amount for failure to perform any obligation under an agreement with Client if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of LeadGenerators including without limitation software, hardware or electrical failure, Internet outages, communications outages, natural events such as fire or flood, war or act of God.
9. Supply and Pricing of Services:
9.1 LeadGenerators reserves the right as it deems necessary to outsource as appropriate at the time any part of the Works, if this does happen it agrees to discuss and have Client's agreement to alter its prices as (and if) necessary without affecting existing contractual agreements save as applicable in respect of prices.
10. Payment
10.1 Invoices shall be issued in accordance with the payment terms as specified in the Service Proposal and unless otherwise stated therein, the Client agrees to settle all invoices in full within 14 days of the invoice date.
10.2 No Works will be commenced until initial payments have been received. The Client shall pay LeadGenerators the Costs and Fees without deduction or set-off (with VAT thereon). LeadGenerators shall be entitled to withhold or suspend the Works until such time as LeadGenerators receives the Costs and Fees as applicable or other payments due.
10.3 All Works created by LeadGenerators will remain its exclusive property until such time that all invoices and expenses has been paid by the Client in full.
10.4 In the event that a Client does not settle all invoices fully within the agreed 14 days, LeadGenerators reserves the right to take some or all of the following actions: (a) suspend any ongoing Works for Client; (b) suspend any licenses, hosting services, use of domains or use of any services supplied by LeadGenerators; (c) replace, modify, or remove any website; and (d) revoke the Client's license to use or benefit from any Works created for the Client.
10.5 Any or all of the measures set out in 10.4 above do not effect in any way the Client's obligation to settle any outstanding Costs and Fees or other payments due.
10.6 In addition to the above actions, for any monies that are still due after the 14 days, LeadGenerators shall be entitled to charge interest on any overdue payment at the rate of 3% over its current bank's base rate prevailing at the time and to charge for each overdue reminder notice issued (at a rate of £20 per instance) and, in the event that monies are still due after the final reminder has been issued, the Client agrees that LeadGenerators can take appropriate legal actions to recover any unpaid amounts and to charge the Client for any legal or other fees that are incurred as a result of such actions.
10.7 In the event that the Works include pay-per-click (PPC) or other search engine placement services or online advertising or any other service which require payments to third parties and are agreed with the Client prior to their implementation, the Client shall reimburse and indemnify LeadGenerators for any out of pocket expenses incurred by LeadGenerators in supplying the same.
10.8 For the avoidance of doubt LeadGenerators will require payment and will issue an invoice and/or invoices for additional costs and fees in accordance with its then prevailing rates for the applicable service being supplied by LeadGenerators or at the rates set out in the Service Proposal: (a)
in the event of delays or additional works caused or required by the Client including its failure to provide LeadGenerators with such information, Materials, instructions, media or approvals, as are reasonably required for the supply of the Works, properly and/or on time; (b) in the event of changes to the cost of labour, materials, services and other circumstances outside of LeadGenerators's reasonable control; and (c)
in the event that Client requires the supply of works, goods and services in addition to those described in the Service Proposal or any variations to the Works.
11. A Change or Alteration
11.1 If Client requires any change or alteration to the Works ("Change"), LeadGenerators and Client shall, prior to such Change being effective or implemented, agree: (a) the nature of the Change; (b) the procedures for implementation of such Change; and (c) the variation to the Costs and Fees.
11.2 Until any Change is formally agreed between us, LeadGenerators will continue to perform and be paid for the Works as if the Change had not been proposed, unless otherwise requested by the Client.
12. Publicity
12.1 From time to time, LeadGenerators produces and publishes press releases and other similar publicity material for both offline and online purposes, which could include information about its work, its clients and its successes. The Client agrees that LeadGenerators can, for the purposes of self promotion, discuss and/or exhibit any graphic/web design work or other work that it has carried out for the Client and mention any specific successes that it has achieved. Furthermore, the Client gives LeadGenerators permissions to include the Client in its offline and online client portfolios.
13. Intellectual Property Rights/Confidentiality
13.1 All copyright, design right, registered designs, trademarks, patents, database rights and confidential information and ideas and all other rights whatsoever of a like nature world-wide whether registered or not of whatever nature in material devised, created or commissioned by LeadGenerators, in supplying the Works under any agreement between us will vest in and belong to LeadGenerators unless otherwise agreed and specified in writing on the Service Proposal or otherwise and signed by both parties.
13.2 In consideration of and upon payment of the Costs and Fees in full, Client shall have the rights of use set out in the Service Proposal which rights shall take effect on receipt by LeadGenerators of the Costs and Fees. Where no such rights are specified the Client is granted a non-exclusive licence to use the Works for the purpose described in the Service Proposal, or other Works documentation. Rights of use shall be extended only with the consent of LeadGenerators and payment of additional fees.
13.3 The Client grants LeadGenerators a non-exclusive royalty free licence to use the Materials for all purposes relating to any agreement between us and warrant that it has obtained and is fully entitled to grant LeadGenerators these rights and that the Materials are free of racist, defamatory, obscene, pornographic and/or other legally restricted material.
13.4 The Client undertakes that it will keep secret and confidential the terms of any agreement between us and any information supplied by LeadGenerators hereunder or the business of LeadGenerators (including the Service Proposal) and the Works and shall not disclose or make available such information or part thereof to any third party (except to its own employees and advisers and then only on a need to know basis) without LeadGenerators's prior written consent PROVIDED THAT this clause shall not extend to information which was and can be shown to be rightfully in the possession of the Client prior to the commencement of the negotiations leading to any agreement between us or which is in the public domain (other than as a result of a breach of this clause).
13.5 The Client shall not modify, adapt or translate the Works except with the prior written consent of LeadGenerators or as otherwise permitted by law where all modifications, adaptations, translations shall belong to and vest in LeadGenerators unless otherwise agreed and specified in writing in the Service Proposal.
13.6 LeadGenerators warrants that it will use reasonable efforts to ensure that the Works do not infringe the copyright of any third party.
14. Specific Terms Relating to Specific Types of Services
14.1 The Terms set out in the following clauses set out the basis on which LeadGenerators provide the services referred to and are in addition to the General Terms & Conditions.
15. Advice and Advice Based Services Provided by LeadGenerators
15.1 The Works carried out by LeadGenerators is based on the knowledge, advice and/or the common wisdom of the internet marketing community. This applies to all aspects of online marketing, all analysis work that it undertakes, all recommendations that it offers, and the strategies, programs or campaigns that it creates or suggests for a Client.
15.2 The Client understands and accepts that, in the business of online marketing any advice provided by LeadGenerators is based partly on its own experience and partly on its learning, reading and interpretation of other expert opinions, by participating in offline and online conversations and from interactions with other professionals and experts in the business of online marketing.
15.3 Client understands and accepts that what might provide positive results for one of LeadGenerators's clients might not provide the same results for another. LeadGenerators does not make any definitive claim that any advice given will guarantee any specific results for any particular Client and does not take any responsibility should objectives not be achieved as a result of advice taken or used.
16. LeadGenerators Graphics & Web Design Services ("Design Service(s)")
16.1 Description of Work
16.1.1 The Service Proposal will describe the Works that LeadGenerators will be contracted by the Client to carry out.
16.1.2 Any work required by the Client that is not included in the Service Proposal will be subject to the provisions of clauses 10.8 above and will be deemed a Change in accordance with the provisions of clauses 11.1 and 11.2 respectively. For the avoidance of doubt such a Change will incur additional costs and fees at LeadGenerators' prevailing rates for Design Service(s) or at the rates set out in the Service Proposal and further may substantially delay completion of the Works and implementation of the Works by Client.
16.2 Limitation of Scope of Work
16.2.1 Unless otherwise stated in the Service Proposal the following parameters and/or limitations apply to the scope of any Design Service(s) undertaken by LeadGenerators:
16.2.1(a) Design Service(s) undertaken by LeadGenerators includes work done by hand and work undertaken by the use of graphics packages such as by way of example only Photoshop, Flash and Illustrator. For the avoidance of doubt, unless otherwise stated in the Service Proposal, Design Service(s) do not include any web development or work requiring programming languages by way of example only PHP, ASP and Java;
16.2.1(b) in respect of Design Service(s) for websites, newsletters, banners and other graphic projects, LeadGenerators will create and provide up to 2 design concepts only, if the Client requires LeadGenerators to create additional design concepts, these will incur additional fees at LeadGenerators prevailing rates for Design Service(s) or at the rates set out in the Service Proposal; and
16.2.1(c) for the avoidance of doubt Design Service(s) will not include any hosting services, ftp management, email management, domain registration and/or search engine optimisation, if the Client requires any of these services, these will be purchased separately and will incur additional costs and fees to be agreed with Client. Further LeadGenerators take no responsibility for services provided by any third parties required for the completion of the Works.
16.3 Supply of Materials:
16.3.1 The Client agrees to supply all Materials required for LeadGenerators to complete the Works in accordance with the Service Proposal. Materials may include, but are not limited to, photographs, written copy, logos and other printed materials.
16.3.2 The Client agrees to supply any required Materials in accordance with the provisions of clauses 3.1 and 3.2 above within a reasonable time. Client understands and accepts that any delay by the Client will delay the completion of the Works and implementation of the Works by Client. For the avoidance of doubt where any part of the Works is held up for more than 21 days by Client, LeadGenerators will invoice the Client and be paid for the remaining Works as if Client had done so whether such are provided or not.
16.3.3 The Client undertakes that any of the Materials provided by Client is: a) not in breach of the intellectual property rights of any third party; b) is not considered obscene, racist, defamatory, immoral or involving pornographic related content; and c) is not in breach of any code or provision of statute or common law or otherwise in force from time to time. Further the Client undertakes to LeadGenerators to indemnify and hold harmless LeadGenerators in full and defend at its own expense LeadGenerators against all costs, damages and losses incurred by LeadGenerators arising out of its use of the Materials or any breach by Client of clauses 7.3, 13.3 and/or this clause 16.3.3.
16.4 Approval & Completion of Work:
16.4.1 LeadGenerators will complete the Works according to the Service Proposal.
16.4.2 The Client shall inspect the Works regularly and shall inform LeadGenerators immediately if it wishes to reject any part of the Works because such do not comply with the Service Proposal. Rejection without good reason shall be deemed a breach of these Terms.
16.4.3 If the Works do not comply with the Service Proposal or are defective in material and workmanship LeadGenerators's liability shall be limited to correcting such defects within a reasonable time.
16.4.4 Once the look & feel of any part of the Design Services to be carried out by LeadGenerators has been accepted by the Client in writing, LeadGenerators will proceed to carry out the remainder of the Works (if any) based on the accepted look & feel accordingly. In the case of web design, this could involve, for example, the creation of inner page templates based on the accepted look & feel.
16.4.5 Any subsequent changes made to the accepted look & feel of the Design Service(s) will be deemed a Change and subject to the provisions of clauses 11.1 to 11.2 respectively.
16.4.6 Once any part of the Works has been completed, the Client will be notified, the Client will then have a 7 day review period within which it must elect one person to notify LeadGenerators, in writing, of any reasonable edits (if any) Client may require ("the Edits") that person shall hereinafter be referred to as "the Project Manager".
16.4.7 Once LeadGenerators has completed the Edits (if any), the Client will be notified. The Client will then have an additional 7 days to review the Edits and the Project Manager will notify LeadGenerators in writing of any further reasonable edits, to the Edits only, that the Client requires. If such written notice is not received within the 7 day period described herein then the Edits and the Works will be deemed approved and accepted by Client and LeadGenerators will issue an invoice to Client for 25% of the value of the remaining Costs and Fees to be paid.
16.4.8 LeadGenerators will then deliver the completed Works in JPG, PSD or HTML format as specified in the Service Proposal to the Client's developer/programmer ("Developer") who will then have 7 days to notify LeadGenerators, in writing, of any technical edits required ("Technical Edits"), LeadGenerators will carry out the Technical Edits and deliver the completed Works to Developer at which point Client accepts and agrees that LeadGenerators will have completed the provision of its design services and accordingly the Works and LeadGenerators will then issue an invoice to Client for the remaining Cost and Fees to be paid.
16.4.9 For the avoidance of doubt any edits requested by the Client, its Project Manager and/or its Developer after any of the 7 day review periods as described in clauses 16.4.6, 16.4.7 and/or 16.4.8 above will be deemed a Change (subject to the provisions of clauses 11.1 to 11.2 respectively) and will incur additional costs and fees at LeadGenerators' prevailing rates for Design Service(s) or at the rates set out in the Service Proposal and further may substantially delay completion of the Works and implementation of the Works by Client.
16.4.10 The Client agrees not to unreasonably withhold approval: (a) of the completed Works; and/or (b) at any part of the agreed staged development of such Works.
16.4.11 LeadGenerators carefully checks designs for errors in spelling and operation but 100% perfection cannot be guaranteed. It is the Client's responsibility to ensure the accuracy of its website and should ensure that all pages and links by way of example only are carefully checked by Client. Any errors in information that was provided in a clear concise manner to LeadGenerators will be corrected free of further cost for up to one-month following the date of the final invoice to Client. However author's changes or information that were provided in an ambiguous or handwritten form may incur an additional fee.
16.4.12 Subject to the provisions of clause 13 and its sub-clauses above, the Works remains the property of LeadGenerators and LeadGenerators may use any aspect of the design including coding for other LeadGenerators' clients. The Client may adopt aspects of the design for use in other media including print with the permission of LeadGenerators which will not be unreasonable withheld.
16.5 Internet Browser Compatibility Testing
16.5 On completion by Client of its own development and/or programming (as applicable) of the completed Works, that the Client hereby accepts and agrees will be done according to Client's own timing and schedule over which Client accepts that LeadGenerators has no control and therefore liability, the Client will request in writing that LeadGenerators carry out Internet browser compatibility testing in Firefox 3.0.14 and in Internet Explorer versions: (a) 6.0; (b) 7.0.5730.13; and (c) 8.0 only. LeadGenerators will carry out the testing described in this clause 16.5 accordingly. and will issue an invoice to Client for the Costs and Fees specified in the Service Proposal for such testing, If the Client expressly requires testing in other internet browsers not included in this clause 16.5 then Client will incur additional costs and fees charged at LeadGenerators' prevailing rates for this service or at the rates set out in the Service Proposal.
16.6 Expenses
16.6.1 The Client agrees to reimburse LeadGenerators for any expenses that need to be incurred in order to complete the Works. In respect of Design Services this usually includes the supply of (but is not limited to) photographs, images, logos, site texts & copy, news feeds and fonts.
16.6.2 Where possible, additional costs, fees and/or expenses will be authorised by the Client in advance.
16.6.3 Any software or third party service that Client requests LeadGenerators to supply as part of the Works shall be paid for: (a) 50% in advance of supply; and (b) 50% within 7 days of the invoice issued for such supply following delivery of the completed Works to the Developer in accordance with the provisions of clause 16.4.8 above.
16.6.4 Where the Costs and Fees for Design Services include an item of training, this shall be paid within 14 days of the training taking place whether at LeadGenerators or Client's premises. Costs and Fees quoted for training are for one person on a one to one basis unless stated otherwise in the Service Proposal.
16.6.5 The Client is not restricted to engaging LeadGenerators to undertake maintenance and amendment of the completed Works, which may be undertaken by the Client or a third party engaged by the Client. However, LeadGenerators makes no warranty about the capabilities of any other party to maintain or amend any of its Works, particularly in respect of coding whether hidden or not.
