Terms and Conditions

PLEASE NOTE, YOU MAY NOT USE THE LEAD METRICS SERVICE UNLESS YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. BY USING THE LEAD METRICS SERVICE OR INSTRUCTING THE COMPANY TO CONDUCT ANY WORK ON YOUR BEHALF OR TO PROVIDE ANY SERVICES TO YOU, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

1. INTERPRETATION 
1.1: Definitions.
In these Conditions, the following definitions apply: 
“ActiveCampaign” ActiveCampaign LLC of 1 North Dearborn St, 5th Floor, Chicago, IL 60602 a marketing automation services provider in respect of whom LM is a Reseller.
Affiliate” a party who acts as an advocate for a third parties’ services and who receives a commission from that third party for each new customer who engages the third parties services through them, where the direct contractual relationship is between the customer and the third party.
“Affiliate Services” the Services which LM provides to the Customer as an Affiliate;
"Business Day" a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
"Charges" the charges payable by the Customer for the supply of the Services in accordance with clause 9;
"Conditions" these terms and conditions as amended from time to time;
"Contract" the contract between LM and the Customer for the supply of Services in accordance with these Conditions;
"Customer" the person or firm who purchases Services from LM;
“Customer Materials” all documents, information and materials provided by the Customer to LM relating to the Services;
“ Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the Data Protection Act 1998, the General Data Protection Regulation 2016, the Privacy and Electronic Communications Regulations 2003 and any and all replacement, subsequent, implementing or additional legislation as amended from time to time;
"Free Account" means where the Customer is given free access to any part of the Services and an account is set up for that Customer without charge;
"Intellectual Property Rights" patents, rights to inventions, copyright and related rights, trade marks, 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; 
“Internet Marketing Services” the search engine optimisation services, pay-per- click, keyword advertising management and social media account management, and website content creation services as more particularly described in clause 9;
"LM" I H M Limited of 15/16 Moulton Park Office Village, Northampton, NN3 6AP, United Kingdom (Company Number: 03941097, VAT Number: 716327933) trading as "Lead Metrics" and reference to the consent authority or agreement of LM means consent authority or agreement in writing signed by a director of LM;
"Order" the Customer's order for Services as set out in the Customer's purchase order form or the Customer's written or electronic acceptance of a quotation by LM, as the case may be; 
Reseller” a party who resells access and use of a third parties’ services as part of a value added solution.
Reseller Services” the Services which LM provides to the Customer as a Reseller.
"Services" the services comprising of Internet Marketing Services, supplied by LM to the Customer as set out in the Order and which may include Reseller Services in respect of third party software and applications;
“Service Providers” ActiveCampaign, Sharpspring and any other third party whose service LM becomes a Reseller of;
“Sharpspring” Sharpspring, Inc of 550 SW 2nd Ave, Gainsville 32601 Florida, USA, a marketing automation services provider in respect of whom LM is a Reseller.
“Supplementary Services” any services supplied by LM to the Customer other than Internet Marketing Services or Reseller Services; 
“Visitor” a visitor to a Website or social media page/account of the Customer; and
“Website”  any website in respect of which Internet Marketing Services are provided by LM.
1.2: Construction. In these Conditions, the following rules apply:
1.2.1: a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); 
1.2.2: a reference to a party includes its permitted assigns; 
1.2.3: a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. 
1.2.4: A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.5: 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
1.2.6: a reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT
2.1: The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2: The Order shall only be deemed to be accepted when LM issues written or electronic acceptance of the Order or commences work pursuant to the Order. The Contract shall come into existence upon the earlier of: (i) LM’s written or electronic acceptance; or (ii) LM commencing work pursuant to the Order. 
2.3: The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of LM which is not set out in the Contract. No additions or modifications to or terms inconsistent with these terms and conditions shall be binding unless agreed in writing by LM. 
2.4: Any proposals, samples, drawings, descriptive matter or advertising issued by LM, and any descriptions or illustrations contained in LM's catalogues or brochures, 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. 
2.5: These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6: Any quotation given by LM shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
2.7: There is no obligation on LM to provide trial period accounts, Free accounts, paid Services accounts, Reseller accounts or any other form of account.
2.8: There is no obligation (upon either LM or the Customer) to extend any trial period or Free Account period into a contract for paid Services.

3. SUPPLY OF SERVICES
3.1: LM shall supply the Services to the Customer in accordance with the Order pursuant to these Conditions and the Services shall continue to be supplied, unless the Contract is terminated in accordance with these Conditions.
3.2: LM shall use reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3: LM shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and LM shall notify the Customer in any such event.
3.4: LM warrants to the Customer that the Services will be provided using reasonable care and skill. 
3.5: LM shall provide technical support during office hours Monday - Friday 9am - 5.30pm (excluding English bank holidays). We do not provide any customer facing support out of these hours. LM shall use reasonable endeavours to respond to the Customer's notification of interruptions or other problems with the Services and will seek to rectify any problems with reasonable diligence and within a reasonable timescale.
3.6: Where the Services include Reseller Services or Affiliate Services  the Customer acknowledges that interruptions and other problems with the Reseller Services are not within LM’s power or control. In such circumstances, LM will act as an intermediary only and cannot be held responsible for the actions or inactions of any Service Provider. Any particular uptime availability level will be determined solely by the Service Provider.
3.7:  Where the Customer provides LM with any account or log in details (whether for any social media account, account with a Service Provider or otherwise) LM shall use its reasonable endeavours to keep those account and/or log in details confidential and secure and undertakes to only use the same for the purpose of the provision of the Services.

4. CUSTOMER'S OBLIGATIONS
4.1: The Customer shall:
4.1.1: ensure that the terms of the Order and any information it provides are complete and accurate;
4.1.2: co-operate with LM in all matters relating to the Services;
4.1.3:  if required for the provision of the Services, provide LM, its employees, agents, consultants and subcontractors, with access to the Customer's accounts including but not limited to its social media accounts and accounts with any Service Providers, premises, office accommodation and other facilities as reasonably required by LM;
4.1.4: provide LM with such information and materials as LM may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
4.1.5: ensure that all emails sent using the Services provided by LM:
4.1.5.1: includes a clear statement identifying the Customer or the person on whose behalf the email is sent;
4.1.5.2: includes a valid email address at which the recipient can contact the Customer (or the person on whose behalf the email is sent) if they wish to opt out of receiving emails or request that they are not contacted (such means for opting out should be simple) together with the sender's full, verifiable, legitimate postal address;
4.1.5.3: is lawful in the jurisdiction of the recipient; and
4.1.5.4: is less than 2mb in size including attachments.
4.1.6: ensure that all emails sent using  any Service Providers services are sent in accordance with the Service Providers terms and conditions.
4.2: The Customer undertakes and warrants that the Services shall not be used directly or indirectly for any unlawful purpose and that the content of any website and emails shall not be unlawful. For the purpose of this Contract, the term "unlawful" means in breach of any applicable law, regulations or codes of practice in force, from time to time, in any jurisdiction and shall include but is not limited to: -
4.2.1: civil and criminal offences of copyright and trademark infringement;
4.2.2: transmission or display or posting of abusive, indecent, obscene or pornographic material;
4.2.3: commission of any criminal offence (including deliberate transmission of computer viruses) including, but not limited to, pursuant to the Computer Misuse Act 1990 or similar legislation in any country;
4.2.4: any transmission or display or posting of any material which is defamatory, libellous, offensive, abusive, or menacing character or which causes annoyance, inconvenience or needless anxiety to any other person;
4.2.5: transmission or display or posting of any material in breach of the Data Protection Legislation or of any material which is confidential or is a trade secret;
4.2.6: use of the service in any manner which is a violation or infringement of the rights of any individual, firm or company within the United Kingdom and elsewhere;
4.2.7: the use of the Services for purposes generally deemed to be unacceptable, including spamming, hacking, phreaking, password cracking, pirated software, ROMS, emulators, or IP spoofing or providing "links" or "how to" information to such material; and
4.2.8: use of the Services to send an email to any recipient to which the recipient has not consented to (unless authorised by any applicable law or legislation); and
4.2.9: anything misleading or which constitutes a misrepresentation
4.3: The Customer undertakes not to host images or files on LM’s, or any Service Provider’s servers save as required for the proper performance of the Services.
4.4: LM does not accept and shall have no responsibility, or liability, for the personal data of any email recipients whom the Customer has sent, or intends to send emails to using the Services or the content of any emails sent using the Services or for sending them to recipients in accordance with the terms of the Contract and the Customer will indemnify LM against all and any damages, claims, expenses, losses, fines and costs that the Company may incur as a result of any breach of clause 4.1 to 4.4 above.
4.5: The Customer will ensure that that any content supplied to LM complies with all applicable laws, regulations and requirements, in place from time to time, of any country from which it can be accessed and the Customer will indemnify LM against all and any damages, claims, expenses, losses and costs that LM may incur as a result of any breach of this clause 4.5 by the Customer.
4.6: LM reserves the right to monitor any communications passing through its servers in connection with the Services.
4.7: If the Services are used for any unlawful purpose LM, or any relevant Service Provider may suspend or terminate the Services immediately and at the same time as suspension or termination occurs LM shall, if it is lawful to do so and provided it has been notified by the Service Provider of the suspension or termination, notify the Customer.
4.8: The Customer shall comply with LM’s and any Service Providers policies which are in place from time to time in respect of the Services. The Customer further agrees to keep its password and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information. The Customer is solely responsible for all activities that occur under the Customer's password or account. The Customer shall notify LM without undue delay if it believes that its password and other access details for use with the Services is no longer secret.
4.9: The Customer agrees to undertake the following, when requested, in relation to the Services:
4.9.1: to supply, in a timely manner, LM with full and accurate details (including but not limited to, names and email addresses) of all recipients of emails sent using the Services (the "List");
4.9.2: to supply, in a timely manner, the content, images, designs and any other information the Customer reasonably requires to be sent using the Services (the "Customer Content"); and
4.9.3: to instruct LM as to when the emails are to be sent to the recipients.
4.10: Where the Customer submits any Customer Content to LM pursuant to clause 4.9.2, the Customer:
4.10.1: warrants that: (i) such Customer Content is the Customers own original work or that of its licensors; (ii) the Customer has the right to make the Customer Content available to LM or the Service Provider for the purpose of the Services; and (iii) the Customer Content is and will continue to remain accurate, comprehensive and up-to-date and is not unlawful;
4.10.2: indemnifies LM against all legal fees, damages, claims and other expenses that may be incurred by it as a result of the Customer breaching clause 4.10.1;
4.10.3: agrees to waive any moral rights in the Customer Content (or warrants that its licensor has waived its moral rights); and
4.10.4: where the Customer Content is sent by email using the Services, acknowledges and agrees that such customer Content may be copied or downloaded by any recipients.
4.11: Where the Customer submits Customer Content to LM (including without limitation any text, graphics, video or audio) the Customer is required by such submission to grant to LM a perpetual, royalty-free, non-exclusive, sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and exercise all copyright and publicity rights with respect to any such work worldwide.
4.12: The Customer accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any third party resulting from its use of the Services to LM and LM does not accept and shall have no responsibility, or liability, for any such complaints made.
4.13: The Customer accepts that if LM receives a complaint from any third party in relation to the Customer’s use of the Services or any emails sent by the Customer using the Services,  and the Customer has failed to comply with the provisions of clause 4.1.5 and LM reserves the right, without liability to the Customer, to disclose the Customer's details (e.g. its name and contact details) to any such third party
4.14: The Customer accepts that Customer usage the Services or any account provided shall act as acceptance of these terms and conditions and LM’s Anti-Spam policy.
4.15: The Customer warrants, represents and undertakes that it will not delete, bulk unsubscribe or modify its account other than in accordance with honest commercial practices and not for the sole purpose of avoiding any billing threshold agreed with LM.
4.16: If LM's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
4.16.1: LM shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays LM's performance of any of its obligations;
4.16.2: LM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from LM's failure or delay to perform any of its obligations as set out in this clause 4.16; 
4.16.3:the Customer shall reimburse LM on written demand for any costs or losses sustained or incurred by LM arising directly or indirectly from the Customer Default; and
4.16.4: LM shall have the right to increase any fixed price Charges in accordance with clause 9.5.
4.17: The Customer accepts that it is responsible for dealing with and responding appropriately to any complaints of whatever nature made by any Visitor and LM shall have no responsibility or liability, for any such complaints made.
4.18: The Customer acknowledges and accepts that it is its sole responsibility to check both the Customer Content and the LM Content (together “Content”) as well as all emails prior to them being published, going live or being sent to any third party to ensure that the Content is correct, displayed accurately and to ensure that all links within such Content operate correctly. LM shall have no liability whatsoever for any errors in any emails or published Content.

5. INTERNET MARKETING SERVICES
5.1: LM shall provide the Internet Marketing Services in accordance with the Order, which may include (as applicable): 
5.1.1: providing the Internet Marketing Services with the objective of enhancing and optimising the rankings and prominence of the Customer’s website (as set out in the Order) in the results pages of Internet search engines;
5.1.2: managing the Customer’s keyword and pay-per-click advertising including but not limited to Google Ads, Bing ads, Linked-In ads, Facebook ads (as specified in the Order) ; and
5.1.3: managing, and publishing content on, one or more of the Customer’s social media accounts (including Twitter, Facebook, and LinkedIn);
5.1.4: providing content for the Customer’s website and other digital marketing publications; and/or
5.1.5: writing blogs and other content at the Customer’s request.
5.2: Where the Internet Marketing Services include the production of any content, whether such content is for use on the Customer’s social media accounts, website, other digital marketing publications, blogs or otherwise (“LM Content”):
5.2.1: the Customer is required to provide specific details about the exact nature of the Customer’s requirements (“the Brief”). Where no Brief is provided or an insufficient Brief is provided LM reserves the right to terminate the Contract with immediate effect. It is the Customer’s responsibility to ensure that the information contained within the Brief is an accurate reflection of their requirements and any complaint as to the nature of the LM Content delivered will be considered against the Brief.
5.2.2: once agreed by LM, the Brief cannot be changed or amended by the Customer;
5.3: The Customer acknowledges and agrees that LM does not guarantee: (i) any search result position for any particular keyword, phrase or search term as it is solely at the discretion of the search engines themselves to list a website; (ii) or the availability of, or the traffic generated by, a keyword; or (iii) any performance targets or exposure generated by publishing content on the Customer’s social media accounts.
5.4: The Customer acknowledges that LM has no control over the policies of search engines: 
5.4.1: with respect to the type of websites and/or content that they accept or the ways in which websites are ranked either now or in the future. As a result search engines may cease to list a website at its discretion and LM shall not be liable to the Customer for any such actions of search engines; and
5.4.2: with respect to keyword and pay-per-click advertising, these policies are constantly under development and testing and, as a result, LM cannot guarantee that the Customer’s advert will appear on any specific page (or at all).
5.5: LM is not responsible for changes made to:
5.5.1: the Customer’s website following the provision of the Internet Marketing Services by other parties, or the Customer (in choosing to link to or obtain a link from a particular website without prior consultation with LM), 
5.5.2: the Customer’s keyword or pay-per-click accounts; or
5.5.3: the Customer’s social media accounts (including the deletion of content or subsequent posting of content), 
that adversely affects the performance of the Internet Marketing Services (including search engine rankings of the Customer’s website and social media content exposure).
5.6: LM shall not be responsible for the Customer overwriting actions it has taken as part of the Internet Marketing Services. 
5.7: LM may report to the Customer material issues with the performance of the Internet Marketing Services. Upon the reasonable request of the Customer, and subject to an agreement on costs between the parties, LM shall use reasonable endeavours to correct any such material issues with the performance of the Internet Marketing Services.
5.8: Solely for the purposes of LM providing the Internet Marketing Services, the Customer agrees to provide LM with the following:
5.8.1: (where not already available) administrative or back-end access to the Customer’s relevant website for analysis of its content and structure;
5.8.2: permission for LM to make changes to the Customer’s website for the purpose of optimisation or to add content which it has prepared at the Customer’s request;
5.8.3: permission for LM to communicate directly with any applicable third parties connected with the Customer’s website (for example, the Customer's web designer) in order to provide the Internet Marketing Services;
5.8.4: access to existing traffic statistics for the Customer’s website in order for analysis and tracking purposes;
5.8.5: where the Customer’s website is lacking in textual content, the Customer will provide additional text content in electronic format for the purpose of creating additional or richer web pages; 
5.8.6: access to the Customer’s relevant social media accounts; and
5.8.7: permission to post and publish, in accordance with the Specification, content on the Customer’s relevant social media accounts.

6. RESELLER SERVICES
6.1: Where the Services include any Reseller Services:
6.1.1: The terms and conditions of the Service Provider are expressly incorporated into this agreement (“Reseller Terms”). Links to the relevant Reseller Terms for each of ActiveCampaign and Sharpspring are set out below. Where an alternative Service Provider is engaged the Customer acknowledges that it has been provided with a copy of the Reseller Terms:
ActiveCampaign - https://www.activecampaign.com/terms-of-service;
Sharpspring - https://sharpspring.com/legal/terms-of-service/
6.1.2: The Customer expressly acknowledges and agrees that it has read the Reseller Terms and warrants that it will comply fully with those Reseller Terms. Furthermore, the Customer acknowledges that it has read and agrees to comply with any Anti-Spam Policy which the Service Provider may have including that which can be accessed at https://www.activecampaign.com/anti-spam-policy,  or which is notified to the Customer either by the Service Provider or LM from time to time.
6.1.3: Where the Customer acts in breach of the Reseller Terms the Service Provider may terminate its account with them and/or remove the Customer’s access to its services without further notice to the Customer and LM shall have no liability to the Customer in this respect.
6.1.4: The Customer shall indemnify LM against all damages, losses and expenses arising as a result of any action or claim brought against LM as a result of the Customer’s breach of the Reseller Terms.
6.1.5: The Customer acknowledges that LM will not be providing the Reseller Services directly and is acting as a Reseller only in respect of those services. Accordingly, the Customer agrees not to bring any action or claim against LM for any act of omission of the Service Provider.The Customer further acknowledges:
6.1.5.1: LM will not be able to recover or restore any data which the Customer deletes from its account with any Service Provider (even where such account is provided through LM);
6.1.5.2: Whilst LM will endeavour to respond to any notifications of interruptions or problems within a reasonable timeframe the resolution of such interruptions or problems may be dependent on the actions of the Service Provider or may require the input of the Service Provider and it is thus ultimately outside LM’s control.
6.1.6: Both LM and the Service Provider has the right, at its sole discretion, to remove the details of any recipient from any list supplied by the Customer, for whatever reason (including, but not limited to, if LM or the Service Provider should receive any complaint from a recipient in respect of any email received by them or any request from any recipient to have their personal data erased or deleted). If LM or the Service Provider receives any notification from a recipient that their personal information requires updating the Customer shall be promptly notified of the same and the Customer shall, without delay arrange for that recipient’s information to be updated.
6.1.7: Both LM and the Service Provider have the right to monitor the Customer's use of the Service including but not limited to the Customer's bounce back, unsubscribe and complaint rates. Should either LM or the Service Provider, in their sole discretion, consider the Customer's bounce back, unsubscribe and/or complaint rates to be excessive or abnormal the Company may instigate a manual review of the Customer's use of the Service and the Customer's account may be locked or suspended during any such review.
6.1.8: The Customer further agrees to keep any password and other access details for use with the Service whether issued by LM or the Service Provider confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information. The Customer is solely responsible for all activities that occur under the Customer's password, LM account or Service Provider’s account. The Customer shall notify LM without undue delay if the Customer believes that its password and other access details for use with the Service is no longer secret.

7. AFFILIATE SERVICES
7.1: Where the Services include Affiliate Services:
7.1.1: The Customer acknowledges that it is entering into a direct contractual relationship with the Service Provider and that it is bound by the Service Providers terms and conditions. The Customer further confirms that it has read and that it agrees to the Service Providers Terms and Conditions.  Links to the Terms and Conditions of ActiveCampaign and Sharpspring are set out below. Where LM is acting as an Affiliate for an alternative Service Provider the Customer hereby confirms that it has accessed and agrees to the Service Provider’s terms and conditions:
ActiveCampaign - https://www.activecampaign.com/terms-of-service;
Sharpspring - https://sharpspring.com/legal/terms-of-service/
7.1.2: The Customer acknowledges and understands that LM will receive a commission payment from the Service Provider when the Customer engages the Service Provider.
7.1.3: Where LM is providing Affiliate Services only the Customer acknowledges that it is entering into a direct contractual relationship with the Service Provider and that LM is not responsible or liable in any way for the provision of the services by the Service Provider.
7.1.4: It is the Customer’s responsibility to ensure the services of the Service Provider meet its requirements. LM makes no warranty or representation in this regard and the Customer agrees that it has satisfied itself that the Service Provider’s services meet its requirements and that it wishes to enter into a contractual relationship with the Service Provider.
7.1.5: :LM shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of the Service Provider to perform any of its obligations, The Customer shall reimburse LM on written demand for any costs or losses sustained by LM as a result of the Customer entering into any agreement with a Service Provider and shall hold LM harmless in respect of the services provided by the Service Provider where LM has acted as an Affiliate only. LM shall have no liability whatsoever to the Customer for the actions and/or inactions of any Service Provider.

8. CHANGE CONTROL
8.1: If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
8.2: If either party requests a change to the scope or execution of the Services, LM shall, within a reasonable time, provide a written estimate to the Customer of: 
8.2.1: the likely time required to implement the change; 
8.2.2: any necessary variations to LM's charges arising from the change;
8.2.3: the likely effect of the change on any estimated timetable for delivery; and 
8.2.4: any other impact of the change on the Contract.
8.3: If the Customer wishes LM to proceed with the change, LM has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, and any other relevant terms of the Contract to take account of such change, and the Contract has been varied.
8.4: LM may charge for the time it spends assessing a request for change from the Customer on a time and materials basis.

9. CHARGES AND PAYMENT
9.1:  Except for where the Customer makes a one-off purchase, or accesses the Services by way of a Free Account,  all Customers shall be subject to a minimum Contract term of 3 months (the "Minimum Term") (or as otherwise previously specified in Order or any other applicable documents which forms part of the Contract) and, subject to clause 13, thereafter the Contract will continue until and unless either party terminates the Contract in accordance with their respective obligations in clauses 15.1 or 15.2.
9.2: The Charges for the Services shall be the amount set out in the Order. The Charges shall remain in force for the duration of the Minimum Term. All amounts due under the Contract shall be paid by the Customer to LM in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Any deposits paid by the Customer are non-refundable.
9.3: The Charges as stated in the Order excludes the following which the Customer shall be liable to pay in addition:
9.3.1: the cost of any disbursements requested by the Customer including images and typefaces; and
9.3.2: VAT, which LM shall add to its invoices at the appropriate rate.
9.4: Where the Services comprise of a one-off purchase, the Customer shall pay each invoice submitted to it by LM in full, and in cleared funds, within 30 days of receipt.  Otherwise, where the Services are accessed other than by way of a Free Account, the Customer shall pay the fees for the Services by standing order or credit card payment on the due date as set out in writing by LM from time to time. If the Customer fails to set up or cancels its standing order mandate then LM reserves the right to charge an administration fee. Where the Customer supplies LM with details of the Customer's credit card and no standing order has been set up, the Customer agrees that LM will charge the credit card for payment of the agreed fee on the due date. If the Customer objects to the fee, the Customer should inform LM upon receipt of the invoice prior to the due date.
9.5: LM reserves the right to increase the Charges after the Minimum Term where:
9.5.1: the Customer fails to provide any Customer Materials requested by LM by the date agreed by the parties or as set out in the Order (or if no date is agreed or set out in the Order, within 2 weeks of LM’s request);
9.5.2: the Customer enters into the Contract but then requests that LM place the provision of Services on hold for a period in excess of 2 weeks;
9.5.3. LM is required to provide additional Services in order to comply with the Order due to act, omission or error of the Customer;
9.5.4: any additional Services not set out in the Order are requested by the Customer; or
9.5.5: any Service Provider increases their prices.
9.6: Without prejudice to any other right or remedy that LM may have, including that set out in Clause 9.5 above, if the Customer fails to pay LM on the due date LM may:
9.6.1: charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment;
9.6.2: suspend the Services or terminate the Contract and Services immediately and delete any data provided to LM or any Service Provider pursuant to the provision of the Services. Any amounts due up to the point of suspension or termination will remain due and payable as if no suspension or termination had occurred; and
9.6.3: require prepayment of all future Services to be provided by LM.
9.7: Time for payment shall be of the essence of the Contract. 
9.8: All payments payable to LM under the Contract shall become due immediately on termination of the Contract, despite any other provision. This clause is without prejudice to any right to claim for interest under the law, or any such right under the Contract. 
9.9: LM may, without prejudice to any other rights it may have, set off any liability of the Customer to LM against any liability of LM to the Customer. 

10. FREE ACCOUNTS
10.1: Where the Customer is offered access to the Services by way of a Free Account such Free Account shall be entirely at the discretion of LM.
10.2: The Free Account may be terminated by either party at any time without notice.
10.3: Where any Free Account is terminated by LM in accordance with clause 10.2 above LM shall be under no obligation to provide any reason for terminating the account. Where the Services include Reseller Services and the Free Account is terminated by or at the request of the Service Provider neither LM nor the Service Provider shall be under any obligation to provide any reason for terminating the account.
10.4:  The Customer accepts that the Services provided by way of any Free Account may be limited by LM as it sees fit in its sole discretion and/or where Reseller Services are provided which include the provision of a Free Account by the Service Provider as it sees fit in its sole discretion.
10.5: These Conditions and the Anti-Spam Policy shall apply to any Free Account as they would to any other account or use of the Services.

11. INTELLECTUAL PROPERTY RIGHTS
11.1: All Intellectual Property Rights in the Customer Materials shall remain the property of the Customer.
11.2: All Intellectual Property Rights arising from or in the course of the provision of the Services and in connection with the Contract, including, but not limited to the copyright in any content which LM prepares on your behalf, but excluding the Customer Materials, shall be the property of LM, and LM hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose for which they created. For the avoidance of doubt, any Intellectual Property Rights which are the property of LM or its licensors at the outset of the Contract shall remain the property of LM or its licensors, as the case may be.
11.3: The Customer shall indemnify LM against all damages, losses and expenses arising as a result of any action or claim that the Customer Materials infringe the Intellectual Property Rights of a third party.
11.4: The Customer grants LM a limited, non-exclusive, non-transferrable, revocable and worldwide licence to access and use the:
11.4.1: Customer Materials; and
11.4.2: name, logo, company name and trademark of the Customer,
solely for the purposes of providing the Services to the Customer in accordance with the Contract.
11.5: Where the Customer submits Customer Materials  to LM for the purpose of providing the Services to the Customer in accordance with the Contract, the Customer:
11.5.1: warrants that:
11.5.1.1: such Customer Materials are the Customer’s own original work or that of its licensors;
11.5.1.2: the Customer has the right to make the Customer Materials available to LM for the purpose of providing the Services in accordance with the Contract; and
11.5.1.3: the Customer Materials are and will continue to remain accurate, comprehensive and up-to-date and are not unlawful;
11.5.2: indemnifies LM against all legal fees, damages, claims and other expenses that may be incurred by LM as a result of the Customer breaching clause 11.5.1; and
11.5.3: acknowledges and agrees that such content may be copied or downloaded by any Visitors.

12. DATA PROTECTION
12.1: LM will process personal data of third parties provided by the Customer or which is inputted by Visitors comprising of names, email addresses, social media tags and other contact information (“the Third Party Personal Data”) in accordance with the provisions of the Data Protection Legislation for the duration of the Contract for the purpose of providing the Services in accordance with the Order.
12.2: For the purposes of the Data Protection Legislation, the Customer is the Data Controller in respect of all Third Party Personal Data. LM acts only as a Data Processor (as defined by the Data Protection Legislation) in respect of the Third Party Personal Data.
12.3: LM shall process the Third Party Personal Data solely for the purpose of providing the Services as instructed by the Customer in writing. Where LM considers any instruction provided by the Customer to contravene the Data Protection Legislation it shall immediately inform the Customer.
12.4: LM shall keep the Third Party Personal Data confidential and shall not, without the Customer’s express prior consent, divulge any Third Party Personal Data to any third party, other than:
12.4.1: As provided for by clause 12.8 below; and
12.4.2: Any third party suppliers, web hosts and developers engaged by LM for the purpose of the maintenance, management and improvement of the Services,
and then only on a strictly confidential basis and on terms which require such third parties to equally comply with the Data Protection Legislation.
12.5: LM will use all reasonable endeavours to keep the Third Party Personal Data safe from unauthorised or unlawful processing or accidental loss and shall put in place appropriate technical and organisational measures to ensure compliance with the Data Protection Legislation including to ensure the security of processing, to assist you in responding to requests from data subjects in relation to their data subject rights as laid down by the Data Protection Legislation and to assist you in complying with Articles 32 to 36 of the General Data Protection Regulation 2016.
12.6: LM shall retain the Third Party Personal Data in accordance with its Data Retention Policy which can be found here, and where Reseller Services are provided the Service Provider will retain the data in accordance with their retention policy in force from time to time,  and shall delete or return to you the Third Party Personal Data once you no longer require the Services or at your earlier request unless required by law to retain it.
12.7: LM shall make available to the Customer all information necessary to show LM’s compliance with this clause including allowing for and contributing to audits and inspections conducted by the Customer or its appointed auditor and the Customer shall be liable for LM’s reasonable costs in doing so.
12.8: The Customer acknowledges that where LM is acting as a Reseller it may be necessary for Third Party Personal Data to be processed by the Service Providers. The Customer further acknowledges that in such circumstances, LM will be a Processor and the Service Providers will be a sub-processor and hereby consents to LM engaging the Service Provider as a sub-processor. Where there is any intended change in the sub-processors engaged by LM it shall notify the Customer giving it an opportunity to object to the same.
12.9: The provision of the Services may, and where Reseller Services are provided will, involve the transfer of Third Party Data to a country outside the European Economic Area. Where this is the case LM shall ensure that an adequate level of protection is provided. In the case of a transfer of any personal data to either ActiveCampaign or Sharpspring, it is noted that both of these companies currently subscribe to the EU-US Privacy Shield which ensures an adequate level of protection.
12.10: The Customer warrants, represents and undertakes that LM’s processing of any Third Party Personal Data in accordance with the Contract and its instructions under it will not infringe or breach any rights of any data subject or be otherwise than in accordance with the Data Protection Legislation.
12.11: LM does not accept and shall have no responsibility, or liability, for the Third Party Personal Data in accordance with the terms of the Contract and the Customer will indemnify LM against all and any damages, claims, expenses, losses, fines and costs that LM may incur as a result of any breach of processing the Third Party Personal Data.
12.12: LM shall process the Customer’s Personal Data in accordance with its Privacy Policy, from time to time, which can be found here and by entering into the Contract, the Customer agrees that it has read the Privacy Policy and that it agrees to adhere to it.

13. CONFIDENTIALITY 
13.1: A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, passwords, 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 of its 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 13 shall survive termination of the Contract.

14. LIMITATION OF LIABILITY
14.1: Nothing in these Conditions shall limit or exclude LM's liability for:
14.1.1: death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
14.1.2: fraud or fraudulent misrepresentation; 
14.1.3: breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
14.1.4: any other liability which cannot be excluded or limited under applicable law.
14.2: Subject to clause 14.1, LM shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss, fines, injury or damage including but not limited to loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data or software, or any indirect or consequential loss arising under or in connection with the Contract whatsoever or howsoever caused including, without limitation, any losses:
14.2.1: arising out of or in connection with any misuse of data by an unauthorised third party;
14.2.2: resulting from any third party data, website or systems hack;
14.2.3: resulting from any unauthorised server access;
14.2.4: resulting from the actions or inactions of any third party Service Provider.
14.3: Subject to clauses 14.1 and 14.2, LM's total liability to the Customer in respect of all other losses arising, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed the total Charges payable in connection with the Services in accordance with the Contract in the 6 months immediately preceding the event(s) giving rise to the claim (and where the Services comprise only of a Free Account or Affiliate Services where the Customer makes no payment to LM this shall be £0).
14.4: A number of transgressions whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single transgression for the purpose of clause 14.3.
14.5: 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.
14.6: The Customer acknowledges and agrees not to bring any claim in connection with the Services against any individual employed or engaged by LM.
14.7: This clause 14 shall survive termination of the Contract.

15. TERMINATION 
15.1: Without limiting its other rights or remedies, LM may terminate the Contract, without reason, by giving the Customer one months' written notice.
15.2: Without limiting its other rights or remedies, the Customer may terminate the Contract, without reason, by giving LM one month’s written notice to expire no earlier than the expiration of any Minimum Term. For the avoidance of any doubt, the Customer is not entitled under this clause 15.2 to terminate the Contract at any time during any Minimum Term.
15.3: Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.3.1: 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;
15.3.2: the other party 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;
15.3.3: the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.3.4: a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
15.3.5: the other party (being an individual) is the subject of a bankruptcy petition or order;
15.3.6: a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
15.3.7: 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 other party (being a company);
15.3.8: the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
15.3.9: a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.3.10: any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.3.2 to clause 15.3.9 (inclusive);
15.3.11: the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
15.3.12: the other party (being an individual) 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; or
15.3.13: the Customer acts in breach of the Data Protection Legislation.
15.4: Without limiting its other rights or remedies, LM may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.4.1: The Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 7 days after being notified in writing to do so. 
15.4.2: The Customer is in breach of the Service Providers terms and conditions or their, or LM’s, Anti-Spam Policy whether or not the Service Provider has suspended or terminated the Customer’s account.
15.4.3: the Customer’s account with any Service Provider is terminated or suspended by the Service Provider for whatever reason.
15.4.4: If the Service is used for any unlawful use.
15.5: Without limiting its other rights or remedies, LM, or where applicable the Service Provider may suspend provision of the Services under the Contract or any other contract between the Customer and LM or the Service Provider if the Customer becomes subject to any of the events listed in clause 15.3.2 to clause 15.3.12, or LM reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

16. CONSEQUENCES OF TERMINATION 
16.1: On termination of the Contract for any reason: 
16.1.1: the Customer shall immediately pay to LM all of LM's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted (including, in respect of fixed cost projects, a fair and reasonable amount in respect of Services provided), LM shall submit an invoice, which shall be payable by the Customer immediately on receipt; 
16.1.2: the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, 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
16.1.3: clauses which expressly or by implication survive termination shall continue in full force and effect.

17. NON-SOLICITATION OF STAFF
17.1: The Customer undertakes that it shall not during the Contract and for a period of one year following its expiry or termination employ or contract the services of any person who is or was employed or engaged by LM in connection with the Contract.

18. FORCE MAJEURE
18.1: For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of LM including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of LM 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. 
18.2: LM shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

19. GENERAL 
19.1: Assignment and other dealings.
19.1.1: LM 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 or agent.
19.1.2: The Customer shall not, without the prior written consent of LM, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
19.2: Notices.
19.2.1: Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
19.2.2: A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
19.2.3: The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
19.3: Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum 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.
19.4: 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 provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it 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.
19.5: No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
19.6: Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
19.7: 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 LM.
19.8: Governing law. This Contract, 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.
19.9: 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).

Version 1.0 - 16/04/2019