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Terms & Conditions

TERMS AND CONDITIONS

These Terms together with the attached Specification of Services form the agreement between the Company and the Partner.

  1. DEFINITIONS

1.1 The definitions given in the Specification of Services shall apply in these Terms unless expressly stated otherwise.

1.2  In these Terms the following words shall have meanings attributed as follows:-

“Event of Default”                                            has the meaning given to such term in clause 9.1;

“Full Lead Details”                                           means details of an Opportunity, to include a description of the potential project, the name of the potential customer to which the Opportunity relates, together with contact details for such potential customer;

“Lead”                                                             means any Opportunity, that the Company believes could be of interest to the Partner;

“Lead Credit”                                                   means the amount of credit which the Partner purchases in advance to spend on Leads;   

“Lead Details”                                                  means anonymised details of an Opportunity, together with details of the Lead Fee for such Lead;

“Account Maintenance Fee”                            means the fee applicable to the account on a monthly basis to cover continued allocation of account manager and lead distribution

“Lead Fee”                                                      means the fee for a particular Lead, fee deducted from the Partner’s available Lead Credit;   

“Opportunity”                                                  means any potential work opportunity or project for the Partner generated from work carried out by the Company;

“Returned Lead”                                              has the meaning given to such term in clause 5.1.

 “Services”                                                      means the services as set out in the Specification of Services; and

“Specification of Services”                             means the specification of services document issued by the Company which details the scope of the Services being provided to the Partner and incorporates these Terms.

 

  1. PURCHASING LEADS

2.1       During the term of this agreement the Partner can only purchase Lead Credit in advance; lead purchase process based on most recent agreement between Company and Partner.

2.2       In instances where Lead Credit has not been used to purchase a Lead for a period of 3 months the Company will charge a monthly Account Maintenance Fee equal to the average charge for one Lead, as re-calculated from time to time; this fee is subtracted from Lead Credit. This will only be enforced if the company have provided relevant leads to the company.

2.3       Any Lead Credit which is not used within twelve months of the date on which it is purchased will expire.           

 

  1. PROCESS

3.1       Where the Company identifies a Lead for the Partner, it shall send Lead Details by email to the Partner at the address given in the Specification of Services.

3.2       If, based on the Lead Details received, the Partner wishes to buy the Lead it shall notify the Company of this at its earliest convenience. The Company reserves the right to offer a Lead to other customers at the same time as such Lead is offered to the Partner.

3.3       If the Partner notifies the Company that it wishes to buy the Lead and the Lead is still available, the Company will email Full Lead Details to the Partner at the address given in the Specification of Services, subject to:

3.3.1    the Partner having sufficient Lead Credit available to enable it to make the purchase; or

3.3.2.   the Partner confirming they agree to buy additional Lead credit.

3.4       If the Partner wishes to purchase a Lead but has insufficient Lead Credit available to allow it to make the purchase, the Partner may be entitled to purchase the Lead on a per Lead basis, subject to it making full payment of the Lead Fee for the specific Lead prior to the Company sending the Full Lead Details to the Partner.

3.5       If the Company supplies Full Lead Details to the Partner and it subsequently transpires that the Partner had insufficient Lead Credit available to allow it to make such purchase, where the Partner has not made full payment of the Lead Fee in advance pursuant to clause 3.3 above, the Company shall be entitled to issue an invoice to the Partner for any outstanding Lead Fees and the Partner shall be obliged to make payment of such invoice within 7 days of the date of invoice.  

3.6       While the Company shall use its reasonable endeavours to source Leads for the Partner, nothing in this agreement obliges the Company to do so nor to provide a minimum number of Leads to the Partner, and the Company will not be liable to the Partner for any failure to do so.

3.7       The Company reserves the right to re‐contact any and all Leads sold to the Partner for quality assurance purposes, to gather feedback and to ensure compliance with these Terms.           

 

  1. CONTACTING THE LEAD

4.1       Following delivery by the Company of the Full Lead Details in accordance with clause 3.4, it is the responsibility of the Partner to make contact with the Lead.

4.2       The Partner shall make initial contact with the Lead by telephone and, where the Full Lead Details identify any specific requirements as regards initial contact, including but not limited to convenient times to call or which telephone number to call, the Partner shall ensure that it adheres to such requirements.

4.3       Only where an initial attempt to contact the Lead by telephone in accordance with any specific requirements is not successful, should the Partner attempt to contact the Lead by email. The Partner must include in such email, details of the initial attempt to contact the Lead by telephone and should make suggestions as regards a more suitable time to discuss the Opportunity by telephone.

4.4       If, within ten calendar days of the date on which the Company emailed the Full Lead Details to the Partner, the Partner has attempted to contact the Lead by telephone on the appropriate telephone number on no fewer than five separate occasions and by email at the email address provided on no fewer than three separate occasions, but has been unable to make contact with the Lead, the Partner shall advise the Company of this immediately and, providing the Company has received satisfactory evidence that such calls have been attempted and emails sent by the Partner within such ten day period, the Company shall contact the Lead to confirm the status of the Opportunity.  

4.5       Where, following the Company contacting the Lead in accordance with clause 4.4, the Company confirms with the Lead that the Partner can contact the Lead, the Company shall advise the Partner of an appropriate timeframe within which the Partner should attempt to make contact and the Partner should attempt to make contact with the Lead in accordance with clauses 4.2 and 4.3 above.

4.6       If, the Partner, having followed the processes at clauses 4.2, 4.3 and/ or 4.5 above, makes successful contact with the Lead but the scope of the Opportunity differs significantly to that set out in the Full Lead Details and the Partner notifies the Company of this immediately, the Company shall contact the Lead to confirm the status of the Opportunity.

4.7       Where, following the Company contacting the Lead in accordance with clause 4.6, the Company considers the Opportunity still to be viable and of interest to the Partner, the Company shall provide such further information to the Partner regarding the Opportunity as it has available to it.               

 

  1. RETURNED LEADS

5.1       If, following the Company contacting the Lead in accordance with clauses 4.4 or 4.6, the Company determines that the Lead is no longer viable or if, following the Partner attempting to make contact with the Lead in accordance with clause 4.5, where it has followed all the earlier processes, the Partner is unable to make contact with the Lead, the Lead will be deemed to be a “Returned Lead”. Under no other circumstances will a Lead be deemed to be a Returned Lead.

5.2       If a Lead is deemed to be a Returned Lead, the Partner will receive a credit from the Company in respect of the Lead Fee for such Lead, to use on another Lead.  

5.3       If it is established that the Partner has met with, contacted or engaged with a Lead which was previously deemed to be a Returned Lead, within the twenty four months following the date on which such Lead was deemed to be a Returned Lead, the Partner will be liable pay a sum to the Company of an amount equal to ten times the original Lead Fee for such Lead

5.4     Should a Partner request to return a lead due to their own prior engagement The Company reserves the right to request evidence. Evidence can include call record, email communication and CRM contact history. Evidence must prove meaningful contact either by meeting or proposal has taken place within 6 months.       

 

  1. PAYMENTS

6.1       Payments of Lead Fees shall be made by the Partner on a Lead Credit basis, the Company shall deduct the appropriate Lead Fee for a Lead which has been purchased from Lead Credit.

6.2       The Company shall not be obliged to provide the Services whilst any payment (or any part thereof) due to the Company remains outstanding and the Company reserves the right to not provide Full Lead Details to the Partner and to sell the Lead to any other customers where the Partner fails to make payment of the Lead Fee or has insufficient Lead Credit available to cover the cost of the Lead Fee.

6.3       All sums payable by the Partner to the Company under this agreement shall be paid without deduction, withholding or set off for any reason whatsoever.

6.4       The Company reserves the right to charge interest on overdue amounts which shall accrue from the date when the payment becomes due. This is calculated on a daily basis until the date of payment at the rate of 8% per annum above the Bank of England base rate from time to time in force. Such interest shall accrue after as well as before any judgment.

6.5       Any Lead Fee and other sums due to the Company under this agreement are exclusive of VAT which if applicable will be charged at the rate prescribed from time to time.

6.6       Without prejudice to any other rights of the Company, failure by the Partner to make payment of a Lead Fee due on the due date for payment will entitle the Company at its sole discretion summarily, by notice in writing to the Partner, to terminate this agreement, or any other agreement with the Partner, either in whole or in part, and/or to require all outstanding Lead Fees to be due and payable in each case without incurring any liability to the Partner for any loss caused by such termination.

 

  1. STATUTORY COMPLIANCE

8.1       Each party agrees that it will comply at all times with any statutory and regulatory provisions which are applicable to direct marketing services which it is required by law to comply with.

8.2       The parties warrant that they are and will continue to be (if required) registered for the purposes of GDPR and any statutory modification thereto or replacement thereof, and comply with the relevant provisions of the said Act in relation to the holding, storing, accessing and disclosure of personal data.

8.3       The Partner hereby agrees that, subject to any requirements of law, any information provided to the Company by the Partner in relation to the Service may be used or disclosed to a third party for the purposes of credit reference checks and debt tracing and recovery and other similar activities.

 

  1. LIABILITY

9.1       The following provisions set out the Company’s entire liability (including but not limited to any liability for the acts and omissions of its employees, officers, agents or sub-contractors in relation to the Service) to the Partner in respect of any breach of its contractual obligations or any misrepresentation or negligence or omission, including but not limited to negligence, arising under or in connection with this agreement (an “Event of Default”).

9.2       The Company does not warrant or guarantee that any Lead provided to the Partner will result in new business or a sale for the Partner, nor that the Partner will be shortlisted by the Lead for further engagement in respect of the Opportunity.

9.3       While the Company will take all reasonable steps to ensure that any information forming part of the Full Lead Details accurately reflects the information divulged by the Lead, the Company does not warrant or guarantee as to the factual accuracy of any Lead.

9.4       The Company shall have no liability to the Partner in relation to damage to the Partner’s software whether by introduction of a computer virus or otherwise resulting from an Event of Default by the Company or its employees, officers, agents or sub‐contractors.

9.5       The Company shall have no liability to the Partner for loss of profits, loss of goodwill or any type of special, indirect or consequential loss (including but not limited to loss or damage suffered by the Partner as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Partner incurring the same.

9.6       Without prejudice to the provisions of clauses 9.2, 9.3, 9.4 and 9.5, the Company’s liability in respect of this agreement or any Event of Default or any series of connected Events of Default shall not exceed the amount paid by the Customer for the Services provided in relation to the agreement in respect of which the Event of Default arises or £5,000 whichever is the lower.

9.7       The Company shall have no liability to the Partner in respect of any Event of Default unless the Partner shall have served notice of the same upon the Company within 30 days of the date it became aware of the circumstances giving rise to the Event of Default or the date when it ought reasonably to have become so aware.

9.8       Notwithstanding any of the provisions of this agreement, the Company’s liability to the Partner shall not be excluded or limited in respect of fraud or fraudulent misrepresentation by the Company, or death or personal injury caused by the Company’ negligence (or the negligence of its employees or officers).

 

  1. INDEMNITY

The Partner shall indemnify the Company and/or its employees, officers, agents and Sub‐Contractors on a full and unqualified basis in respect of any loss or damage whatsoever (including but not limited to costs and any necessary payments made in order to settle or compromise any claim and costs and disbursements of Sub Contractors) which it or they may suffer or incur directly from any breach of this agreement or negligence by the Partner or by the Partner’s employees, officers or agents or by any other party acting through or with the Partner.

 

  1. TERMINATION

11.1     This agreement commences on the earlier of the date on which Services commence or the date on which the Specification of Service is signed by the Partner and will continue until terminated in accordance with its terms. This agreement may be terminated by either party giving to the other not less than 1 months’ written notice.

11.2     Either party may terminate this agreement by notice in writing if the other:

11.2.1 is in material breach of this agreement and shall have failed to remedy that breach within 30 days of receipt of a request in writing to remedy the breach from the other party; or

11.2.2  has a bankruptcy order made against it or has entered into a composition whether formal or informal with its creditors or has become the subject of a voluntary arrangement under the Insolvency Act 1986 or any statutory modification or replacement thereof or is unable to pay its debts within the meaning set out in the Insolvency Act 1986 or any statutory modification or replacement thereof or has had a receiver, manager, administrator, liquidator or  administrative receiver appointed of its undertaking assets or income or any part thereof or has passed a resolution for winding up or an order for winding up has been made against it.

11.3     The termination of this agreement howsoever arising will be without prejudice to the rights and duties of either party accrued prior to termination. Without prejudice to the generality of the foregoing:

11.3.1 the Partner shall forthwith upon termination pay to the Company any monies then owing to the Company under this agreement, including but not limited to any costs and expenses incurred by the Company either during the process of lead delivery or onboarding and not already paid for by the Partner; and

11.3.2 the Company will, after the deduction of its Fees (and the Company shall be entitled to make such deduction even where payments are to be made gross to the Partner) and any other sums due as at the date of termination, remit to the Partner all sums held on the Partner's behalf as at the date of termination.

11.4     Notwithstanding the terms of clause 11.3.2, if this agreement is terminated by the Partner in accordance with clause 11.1 or by either party in accordance with clause 11.2, the Partner shall not be entitled to be reimbursed for any Lead Credit purchased but not used during the term of this agreement.

 

  1. CONFIDENTIALITY

12.1     Neither party will at any time during the term or after the termination of this agreement disclose any confidential information acquired or received as a result of entering into or performing this agreement except that the Company may disclose confidential information to its employees, officers, agents or Sub Contractors to the extent necessary in order to provide the Services and in accordance with clause 8.3.

12.2     Clause 12.1 shall not apply to:

12.2.1 information which is in the public domain otherwise than as a result of a  breach of clause 12.1;

12.2.2 information which is required to be disclosed by law.

12.3     The Company hereby notifies the Partner that, telephone calls and emails may be recorded or monitored for quality purposes.

 

  1. FORCE MAJEURE

The Company shall not be liable to the Partner for any loss or damage which may be suffered by the Partner as a direct or indirect result of the Company being delayed, prevented or hindered in the performance of its obligations under this agreement by reason of any circumstances beyond its reasonable control.

 

  1. ASSIGNATION

The Company is entitled to assign the benefit and/ or burden of this agreement at any time to any other third party.

 

  1. WAIVER

No waiver shall be effective unless given by the Company in writing.

 

  1. VARIATIONS AND ADDENDUMS

16.1     No variations to this agreement shall be binding upon the Company unless in writing and signed by a duly authorised officer of the Company.

16.2     Variations to the type of Services to be referred by the Partner to the Company shall be recorded by the completion of an addendum, which once signed and completed by the Company and the Partner shall form part of this agreement.

 

  1. NO PARTNERSHIP/ AGENCY

Nothing in this agreement is intended to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other. Except where expressly so stated in this agreement neither party will have authority to act in the name or on behalf of or otherwise to bind the other.

 

  1. NOTICES

All notices given under this agreement shall be in writing and unless otherwise specified, any notice sent hereunder shall be deemed to have been duly given if sent by prepaid first class post addressed to the party concerned to its registered office or the address specified in the Specification of Services or to such other address for service as such party shall have notified to the other party as its address for service and marked for the attention of the Managing Director. Service will be deemed to have taken place 3 days after the date of posting.

 

  1. LAW

The formation, construction, performance, validity and all aspects whatsoever of this agreement shall be governed by Scots Law.

 

  1. ARBITRATION

All disputes or differences which arise out of this agreement shall be referred to a single arbitrator to be appointed by mutual agreement between the parties. Either party may serve notice upon the other party to agree upon an arbitrator, and in default of such agreement within 21 days of the date of such notice, either party may request that the President of the Chartered Institute of Arbitrators appoints a single arbitrator.

 

  1. RESTRICTIVE COVENANT

The Partner shall not during engagement with or for a period of twelve months after termination of this agreement directly or indirectly carry on or engage or be concerned or interested in any business with any of the employee of the Company, former or current, without the express written consent of the Company. In any event, the Company reserves the right to charge a fee equal to one year’s salary for any member of staff whose services are employed directly or indirectly by the Partner.

 

  1. ENTIRE AGREEMENT

This agreement sets out the entire agreement between the parties and supersedes and replaces all prior communications, representations, warranties, stipulations, undertakings and agreements whether oral or written between the parties, save that nothing in this clause 22 shall exclude or restrict the Company’ liability for fraudulent misrepresentation.