General Terms and Conditions – Last updated – 23 May 2018
1 Services and Orders
1.1 The Lead Generation Account shall constitute an order by you to purchase Leads in accordance with these Conditions.
1.2 The Lead Generation Account shall be deemed to be open and valid only when we receive the properly completed and approved Signup Form and activate the same on our system. Customers who joined us before 1st January 2015: the order is deemed to be accepted upon confirmation of details via Email.
1.3 We shall provide Leads in the categories you have specified and subject to the filters and quantity caps you have specified, all as set out on the Signup Form.
1.4 We shall provide Leads electronically via the method agreed with you and set out in the Signup Form. Subject to clause 3.3 and the other terms and conditions of the Agreement, you are licensed to use each Lead from the date it is provided to you for the purpose of selling or attempting to sell your products or services that are in the categories set out on the Signup Form, and only for this purpose. It is your responsibility to maintain your systems, including an internet connection and email, to ensure receipt of Leads sent to you. We accept no responsibility for un-received Leads due to spam filters or for any other reason beyond our control. For the avoidance of doubt all Leads provided to you are shown on our systems and we can provide screenshots if necessary.
1.5 We shall endeavour to deliver the quantities of Leads set out on the Signup Form, however, we do not guarantee that we will provide the full number of Leads that you have ordered.
1.6 If you require a change to be made to your Lead Generation Account, including, but not limited to, the categories, caps, filters or method of delivering the Leads, you must promptly notify us via email, or where possible make the changes yourself in your Client Portal. We shall have the right to make any changes to the Services which are necessary to comply with any applicable Law.
1.7 We reserve the right from time to time to change the data we collect in respect of the Leads we provide to you, and to change the steps we take to qualify the Leads.
1.8 Without limiting the effect of clause 1.9, we do not warrant that the Services will be free from interruption, or that Leads sent to you will result in any business, sales or revenue. We do not guarantee the specific detail of any Lead you receive.
1.9 Except as expressly stated in the Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise, are hereby excluded to the extent permitted by law.
1.10 All Intellectual Property Rights in or arising out of the Services, including (without limitation) the Leads, shall belong to us.
2 Price and Payment
2.1 You agree to pay the Charges in accordance with our standard billing frequency, credit terms and payment method. All accounts will be subject to a credit check on commencement of the service.
2.1.1 Lead Generation accounts are set up on a Pre-Pay basis and require a credit or debit card to be added to your portal account and an initial pre-payment to be made. Automatic top ups will be taken as and when the initial pre-payment credit has been used. For Pre-Pay Accounts we require your account to have been activated for a minimum of 30 days before any refund to be considered. Payment receipts are issued on a weekly basis for Pre-Payments taken in the previous week. All payments are shown on your portal account.
2.1.2 Post Pay Accounts are only offered to specific Partners, after discussion with the lead generation team and are invoiced weekly in arrears and by commencing our service; you agree for us to auto-charge your stored card. Payment is collected automatically when an invoice is raised, using the credit or debit card stored on the system, unless otherwise confirmed in writing. A copy invoice/receipt will be sent to you via Email.
2.1.3 You are not entitled to deduct or withhold payment of any sum payable to us for any reason including but not limited to; claim, counterclaim, credit, deduction, set-off, discount, damages or otherwise.
2.3 We reserve the right at any time to increase or otherwise change our Charges (including, without limitation, our Lead prices) set out in the Signup Form. We will give you 14 days prior notice by e-mail of any price increases or changes. We reserve the right to give priority to customers paying the highest Lead price.
2.4 If, for any reason, you fail to pay the Charges or any other sum due to us under the Agreement by the due date for payment, a Late Payment Fee, minimum of £42 + VAT, or 8% of the total balance (Whichever the greater) will be charged onto your account. For Australian Partners the Late Payment Fee minimum of $80 will be applied.
2.5 If a payment is unable to be taken; debit/credit card is declined, cancelled, expired or any other problem with the payment method on file; then the total balance on the account will become immediately due for payment. We will pause the account immediately until payment is made.
2.6 Payments made via PayPal will be subject to a 3% surcharge.
3 Your Obligations
3.1 You shall ensure that the terms of the Lead Generation Account are complete and accurate.
3.2 You agree to promptly contact all Leads that you receive from us.
3.3 You shall not resell, pass on or otherwise use or disclose any Lead or any information arising from or in connection with a Lead, or use any Lead or any information relating to a Lead for any reason outside of the terms of your licence (as set out in clause 1.4 above) or any applicable Laws (including, without limitation, the Data Protection Act 1998 as amended).
3.4 You agree that you shall have the sole responsibility for the goods or services provided in relation to a Lead and any complaints regarding those goods or services. In the event that you have a dispute with one or more Lead(s) you shall indemnify and keep indemnified us, our Affiliates, agents and employees against any claims, demands, costs, expenses, losses and/or damages whatsoever arising out of or in any way connected with that dispute.
3.5 You shall not inform or imply to any person by any means that you are acting on behalf of us or that we have approved of or endorsed you or your goods or services.
3.6 You shall not attempt to reverse engineer, decompile, disassemble or modify any software or programmes which we provide to allow you to access your Leads (including the Client Portal), and you shall not use any software or programmes that will or may corrupt any programmes or software which we provide (including the Client Portal).
3.7 You shall cooperate with us and provide us with all information and assistance we may require from time to time, in connection with the provision of the Services.
3.8 The Agreement has been accepted by and is binding on you, having been entered into by a duly authorised representative or agent on your behalf.
3.9 You shall comply with the General Data Protection Regulation (EU) 2016/679 and any other relevant data protection or applicable laws (Data Protection Law) relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner, and the equivalent of any of the foregoing in any relevant jurisdiction.
3.9.1 In order to comply with Data Protection Law with regards to Shared Personal
Data, each party agrees that each is an independent controller, and it is the responsibility of
each party to set down its own purposes and processes relating to the Shared Personal
Data, subject to the provisions of these terms and conditions.
3.9.2 You shall ensure your compliance with Data Protection Law by ensuring all your technical and organisational security measures are in place and fully compliant in respect of the processing of Shared personal Data.
3.9.3 Each party shall comply with Data Protection Law with regards to its own processing of Shared Personal Data. In obtaining and collecting personal data we will ensure that this process complies and that in disclosing the personal data, this itself, does not breach any Data Protection Law.
3.9.4 In respect of the transfer of Shared Personal Data, and the transparency requirements of Data Protections Law, we shall be responsible for ensuring these requirements are met. In respect of the Shared Personal Data, and the transparency requirements of Data Protection Law, you shall be responsible for ensuring your processing of the Shared Personal Data also meets these requirements.
3.9.5 Each Party shall enable the other to comply with Data Protection Law by providing all information, reasonable assistance and cooperation, in respect of the processing of the Shared Personal Data, this will be at the request and expense of the other party.
3.9.6 You shall only use the Shared Personal Data to provide a quotation, negotiating a sale and providing a service. Should negotiations result in a contract for service between the you and the lead, this restriction will end and no longer apply.
3.9.7 You are not permitted to transfer, or allow in any way to be transferred, the Shared Personal Data, from any location within the UK and EEA, to any location outside of the UK and EEA, directly or indirectly, unless you are fully compliant with Data Protection Law governing the international sharing of Shared Personal Data.
3.10 You shall indemnify and hold indemnified us and our Affiliates, agents and employees from and against any costs, claims, expenses, demands, losses or damages arising out of or in connection with you breaching clause 3.9.
3.11 You shall not, either during the term of this Agreement or for six (6) months thereafter:
employ or engage or otherwise facilitate the employment or engagement of; or offer to employ or engage or otherwise endeavour to entice away from us; any person employed or engaged by us and with whom you dealt during the term of this agreement or in the six (6) months before the commencement of this Agreement.
3.12 The restrictions imposed on you by clause 3.11 apply to you acting directly or indirectly, and on your own behalf or on behalf of, or in conjunction with, any other person, company or firm.
4 Returns Policy
4.1 We reserve the right to refuse returns, on any reason
4.2 All returns must be received within
4.3 All returns must be submitted via Partner Portal and will be considered on a case by case basis. Any returns not received via this portal will not be accepted.
4.4 Any returns/queries relating to leads that are over 30 days old will not be accepted.
5 Cancellation, Suspension and Termination
5.1 Either Party may terminate the Agreement with immediate effect via Email (email@example.com) or Telephone (Ocere office: 01242 525557). The Agreement shall not terminate unless and until you receive written confirmation from us.
5.2 If you fail to pay us any amount due under the Agreement by the due date for payment, or materially breach any of your obligations under the Agreement or fail to remedy any breach of the Agreement within fourteen (14) days of being asked to do so, or pass a resolution for winding up, or a court of competent jurisdiction makes an order for your winding up or dissolution, it shall be considered an “Event of Default “.
5.3 If an administration order is made in relation to you, or a creditor takes possession of or sells any of your assets, or you are unable to pay your debts, or you become insolvent, or you cease or threaten to cease to carry on business, or any similar event occurs, or we have reasonable grounds to believe any of the events listed in 4.2 or 4.3 have occurred or are reasonably likely to occur, it shall be considered an Event of Default.
5.4 On the occurrence of an Event of Default we may (at our option, and without limiting our other rights or remedies) (a) suspend the provision of the Services and cease providing you with Leads until such time as the default is remedied in our sole discretion, or (b) terminate the Agreement with immediate effect upon written notice at any time on or after the date the Event of Default occurred. In the event of the suspension of the Services or the termination of the Agreement, for any reason, you shall immediately cease using any Leads that you have not paid for. For the avoidance of doubt, any Lead relating to any previous invoice which you have paid shall remain under licence to you per these Conditions.
5.5 The termination of the Agreement shall not affect either Party’s accrued rights or obligations.
5.6 On termination of the Agreement for any reason:
(a) a final invoice shall be raised immediately and card payment taken for the any outstanding amount. If the card is declined or payment unable to be taken for any reason, and payment is not received within 7 days, then the partner shall be referred to our external debt collection agency.
(b) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
6 Limitation of Liability
6.1 Nothing in these Conditions shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
6.2 Subject to clause 5.1, we shall, under no circumstances whatever, be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(a) loss of business, business opportunities, sales, revenue or turnover:
(b) loss of agreements or contracts;
(c) loss of anticipated savings or wasted expenditure;
(d) loss of damage to reputation or goodwill;
(e) loss of use or corruption of hardware, software, data or information;
(f) loss of profits; or
(g) indirect or consequential loss;
arising under or in connection with the Agreement.
6.3 Subject to the clause 5.1, our total aggregate liability to you in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the equivalent of the total charges paid by you to us during the three (3) month period immediately preceding the date on which the liability arose.
7.1 Each Party agrees to keep all Confidential Information relating to the other Party confidential and only for use in connection with their respective obligations under the Agreement, unless such information is already in the public domain (other than through a breach of this condition), or lawfully obtained by a third Party, or is already in the possession of the other Party or that either Party may be required to disclose as a matter of law.
8 Application of Terms
8.1 These Conditions apply to the Agreement to the exclusion of all other terms or conditions, including (without limitation) any terms or conditions which you may believe apply under any purchase order, confirmation of order, specification or any other document, or which are implied by trade, custom, practice or course of dealing.
8.2 The Agreement constitutes the entire agreement between the Parties. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Agreement.
8.3 We reserve the right to make changes to these Conditions from time to time. If any changes are made, the latest version of the Conditions will be sent to you, and your Lead Generation account will be subject to the latest version of the Conditions from the date of being sent.
8.4 The Agreement shall commence on the date stated on the Signup Form and shall continue unless and until it is terminated in accordance with the Agreement.
8.5 If a court or any other competent authority finds that any provision of the Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Agreement shall not be affected. If any invalid, unenforceable or illegal provision of the Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
9.1 Any failure or delay by either Party in exercising any of its rights and remedies shall not constitute a waiver of those rights and remedies unless expressly agreed in writing.
9.2 We reserve the right to, at any time, assign, charge, subcontract, transfer or deal in any other manner with all or any of our rights under the Agreement, and we may subcontract or delegate in any manner any or all of our obligations under the Agreement to any third party or agent. You may not assign, charge, subcontract, transfer or deal in any other manner with all or any of your rights or obligations under the Agreement without our prior written approval.
9.3 We shall not be liable to you as a result of any delay or failure to perform our obligations under the Agreement as a result of any event beyond our reasonable control, including (but not limited to) strikes, lock-outs or other industrial disputes, act of God, war, riot, 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.
9.4 A person who is not a party to the Agreement shall have no rights under or in connection with it.
9.5 The Agreement and any dispute 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 English law.
9.6 The Parties to the Agreement irrevocably agree, for the sole benefit of the Parties, that the courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Agreement, its subject-matter or formation (including non-contractual claims).
10 Definitions and Interpretations
10.1 In these Conditions the following terms shall have the following meanings:
“Affiliates” means any of our affiliated companies, parent or holding companies, subsidiaries or any other entity that directly or indirectly controls, is controlled by, or is under common control with us;
“Agreement” means the contract made between the Parties for the purchase and provision of Services, which incorporates the Signup Form and these Conditions;
“Charges “means our charges (which we may increase from time to time in accordance with clause 2.4) for supplying the Services as set out in the Signup Form;
“Client Portal” and “Portal” means the Lead Generation online customer portal, where Lead Generation customers have access to view leads, request returns and make amendments to their accounts.
“Conditions” means these General Terms and Conditions; the relevant Special Terms and Conditions; and such other terms and conditions as may be notified to you by us from time to time;
“Confidential Information” means any non-public information disclosed to either Party, whether orally, in writing, through any means of communication, by or on behalf of the disclosing Party;
“Intellectual Property Rights” means all intellectual property rights of any nature whatsoever, whether registered or unregistered, and including 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, including, without limitation, patents, copyright, trademarks, business names, domain names, rights in designs, rights in software, database right, and rights in confidential information (including know-how and trade secrets);
“Law” means any law, statute, regulation, or any other means, including any subordinate legislation, having force of law by way of government or regulatory authority in all cases as amended, re-enacted, replaced and supplemented;
“Lead Generation Account” means the Lead Generation Account, created by you with us, as set out on the Signup Form;
“Leads” means the name and contact details of a third party who has requested a quote for a product or service of yours in a particular category.
“Signup Form” means our standard Signup Form that you will be asked to complete and agree to when creating an account with us, and which sets out the details of the Services to be provided by us and which incorporates and is subject to these Conditions. This form is located here: https://www.ocere.com/partner-account/;
“Party” and “Parties” means (as appropriate) any reference to you and/or us;
“Services” means our provision of Leads to you, as set out on the Signup Form, and such other services that the Parties may agree and set out on the Signup Form;
“we” means Ocere Limited (Company Number: 6858052) whose registered office is at Eagle Tower, Montpellier Drive, Cheltenham, GL50 1TA, who is entering into the Agreement, and “us”, “our” and “ours” shall be construed accordingly;
“you” means the natural or legal entity that is entering into the Agreement (as specified on the Client Portal, Signup Form or other communication from you to us) and “your” and “yours” shall be construed accordingly.
“each party” means oth Ocere Limited and the natural or legal entity that is entering into the Agreement.
10.2 In these Conditions, the following rules shall apply:
(a) headings are solely for ease of use and will not affect the construction or interpretation of these Conditions;
(b) words in the singular shall include the plural, and vice versa;
(c) 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
(d) a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).