These terms apply where The Lead Management Company (“TLMC”) and a third party (hereinafter “Advertiser”) have both signed an Advertiser insertion order (the signed version of which is referred to as the “Insertion Order”). These terms are incorporated by reference into the Insertion Order which, together with these terms, constitutes a binding agreement (this “Agreement”).
1. DEFINITIONS: The following terms shall have the following meanings in this Agreement:
“Adverts” means the advertisements or advertising campaigns of the Advertiser, as further described on the Insertion Order;
“Advertiser” means the entity (other than TLMC) on whose behalf the Insertion Order has been signed;
“Network” means TMLC’s network of affiliates who have agreed to (i) attempt to procure Registrants’ details (i.e. leads) on behalf of TMLC and/or (ii) create its own advertising materials or use Adverts or other means for the purpose of generating impressions, clicks or sales for the ultimate benefit of Advertiser and other advertisers contracted to TLMC;
“Registrants” means individuals who have properly opted in to receiving marketing communications from third parties in accordance with the requirements set out on the Insertion Order;
“Website(s)” means the Advertiser’s website(s) as specified on the Insertion Order.
2. TERM AND TERMINATION: The term of this Agreement shall be one year from the date of the Insertion Order. The Agreement shall then automatically renew for successive one year periods unless one party gives written notice to the other at least three months prior to the end of the first year (or of any such subsequent one year period), that the Agreement will not renew at the end of the first year (or such subsequent one year period). In addition, TLMC shall be entitled to terminate this Agreement immediately by written notice to Advertiser in the event that Advertiser breaches this Agreement or becomes insolvent or has an application or order made for the appointment of an administrator, administrative receiver or other comparable officer.
3. TLMC OBLIGATIONS
3.1 TLMC will (as applicable):
(a) Affiliate Network Insertion Orders: (i) make the Adverts constantly available (subject to scheduled maintenance or updating work and to unexpected occurrences) to the Network in order that members of the Network may choose to place the Adverts on their own website(s) or choose to distribute those Adverts by other means; and (ii) use reasonable endeavours to use the Network in order to procure the details of Registrants (i.e. leads) for passing on to Advertiser;
(b) Co-Reg Network and Lead Generation Path Insertion Orders: use reasonable endeavours to procure Registrants’ details (i.e. leads) from its affiliates and partners for the benefit of Advertiser.
4. ADVERTISER OBLIGATIONS
Advertiser will:
(a) where appropriate, supply Adverts to TLMC, which shall include all necessary copy, graphics and other elements, free of third party rights and in a condition suitable for TLMC to make them available to its Network;
(b) ensure that the Website(s) is/are constantly available (subject to scheduled maintenance or updating work and to unexpected occurrences) and will give TLMC reasonable notice of any scheduled work which will adversely affect the Website(s);
(c) ensure that the Website(s) and all actions it takes pursuant to this Agreement comply entirely with all applicable laws and regulations (including without limitation those concerning intellectual property, advertising, marketing, e-commerce and electronic communication, data protection and the rights of the individual) and with all applicable internet service provider terms;
(d) make payments to TLMC in accordance with the Insertion Order (i) for the Registrants’ details (i.e. leads) that TLMC procures and (ii) on a cost per action basis as detailed in the Insertion Order;
(e) make all such payments referred to above within 15 days of receipt of the relevant invoice and agrees that TLMC shall be entitled to interest in accordance with current commercial debts regulations on any late payments;
(f) comply with all reasonable requirements of TLMC relating to the inclusion of tracking mechanisms in Adverts or otherwise and not attempt to circumvent such tracking mechanisms in any way.
5. PAYMENT CALCULATION. TLMC uses reliable mechanisms for calculating the payments that Advertiser must make to it in accordance with the Insertion Order in respect of costs per action, as detailed on the Insertion Order and Advertiser shall accept TLMC’s calculation of these payments. In respect of “cost per acquisition”/”cost per sale” calculations, Advertiser shall keep track of all sales arising as a result of this Agreement and shall, if required by TLMC, deliver to TLMC breakdowns and full details of such sales. Advertiser shall act in the utmost good faith in this regard and shall allow TLMC rights of audit over its accounts and other documentation. Advertiser may not make any deductions from the sum invoiced due to the delivery of Registrants’ details which it believes are not valid but must instead follow the invalid/deficient lead procedure as detailed on the Insertion Order.
6. DATA PROTECTION. Advertiser agrees to promptly forward to TLMC details of any entity that has chosen to opt out of receiving further communications from it or on its behalf and acknowledges the importance of doing this for complying with data protection requirements. Advertiser will forward such details to its Network but, in line within the general disclaimer of liability below, will not be liable to Advertiser for any claims, loss or damage arising from such opt outs.
7. INTELLECTUAL PROPERTY. Advertiser grants to TLMC a licence for the term of this Agreement to use its intellectual property rights (including without limitation trade mark rights, copyright, design rights etc.) in the Adverts, and otherwise, for the purpose of fulfilling its obligations under this Agreement. The rights licensed may be sub-licensed by TLMC to members of its Network in order that they can fulfil their obligations to TLMC.
8. CONFIDENTIALITY. Advertiser shall keep in strict confidence all customer/contact lists, Network member contact details, technical or commercial know-how, specifications, inventions, business methods, processes or initiatives which are of a confidential nature and have been disclosed to Advertiser by TLMC, its employees, agents or sub-contractors and any other confidential information concerning TLMC’s business, its Network members, affiliates or partners or its services which Advertiser may obtain. Advertiser shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging Advertiser’s obligations to TLMC, and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind Advertiser. Furthermore, Advertiser shall not use any of the information given to it by TLMC to make a secret profit or use any such information for its own benefit or in any way which may prejudice the interests of TLMC. This clause shall survive the termination or expiry of this Agreement.
9. INJUNCTIVE RELIEF. Advertiser agrees that damages alone will not be an adequate remedy for the breach of any of the provisions of this Agreement and accordingly that, without prejudice to any other rights and remedies available, TLMC shall be entitled to seek injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this Agreement.
10. INDEMNITY. Advertiser shall indemnify and keep indemnified TLMC and its directors, employees and contractors (including Advertisers) from and against any loss or damage (including, without limitation, legal costs), incurred by any of the indemnified parties as a result of the acts or omissions of Advertiser and/or as a consequence of any breach by Advertiser of the terms of this Agreement.
11. LIMITATION OF LIABILITY. TLMC shall not be liable (except in respect of death or personal injury resulting from negligence or for any damage or liability incurred by Advertiser as a result of fraud or fraudulent misrepresentation by TLMC) for any loss or damage (including loss of profits, loss of business, loss of use, loss or corruption of data or any special, indirect, consequential or pure economic loss) arising out of or relating to this Agreement or otherwise.
12. SEVERABILITY. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
13. NON-RELIANCE. Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
14. ASSIGNMENT. Advertiser shall not, without the prior written consent of TLMC, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. TLMC 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. This Agreement shall be binding on, and inure to the benefit of, the parties’ successors in title.
15. NO PARTNERSHIP ETC. Nothing in this Agreement is intended to, or shall operate to, create a partnership or joint venture between the parties, or to authorise either party to act as agent for the other.
16. LAW AND JURISDICTION. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales and the parties agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
© The Lead Management Company 2009
