Terms

Terms and Conditions

LeadPro is a company registered in Scotland with company number SC528448 and whose registered office is at 16 Charlotte Square, Edinburgh, Scotland, EH2 4DF (“LeadPro") 

Background

A LeadPro provides lead conversion tools and associated services to leading professional estate agencies, which may include bespoke reporting and marketing solutions. 

B The Client and/or members of the Client Group wish to use the tools and receive certain services (as detailed in relevant Purchase Orders), which LeadPro is willing to provide in accordance with the terms of this Agreement and relevant Purchase Orders.

C This Agreement and the relevant Purchase Orders supersede and replace the terms of any existing product trial between the Parties.   

THE PARTIES HEREBY AGREE as follows:

1. Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires, the following words have the following meanings:

"Agreement" means this master services agreement (including any schedule or annexure to it and any document referred to in it).

"Business Day" means a day (other than a Saturday or a Sunday) on which retail banks are open for over-the-counter business in the City of London.

“Client Data” means any data or other information provided by the Client, a member of the Client Group and/or End Users for the purposes of using the Product and/or facilitating LeadPro’s provision of the Services.

“Client Group” means the Client together with its Group Companies. 

"Commencement Date" means the date of this Agreement. 

"Confidential Information" means any know-how, any trade or business secrets, any commercial, financial, business, technical or other confidential information of whatever nature relating to the business of a Party including this Agreement and a Purchase Order (whether written, oral or in electronic or other form) which is clearly designated by a party as being confidential (whether or not it is marked as confidential) or which can reasonably be expected to be recognised as confidential, that the other party obtains, receives or has access to as a result of this Agreement and each Purchase order (or any discussions prior to the execution of this Agreement or Purchase Order).

"Employment Regulations" means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended or reenacted from time to time;

“End User” means a customer of the Client who is engaged by LeadPro as part of the Services;

“Fees” means the fees set out in a Purchase Order;

“Group Companies” means, in relation to a Party, that Party and any subsidiary or holding company (as those terms are defined in the Companies Act 2006) or any corporate person with an immediate or ultimate holding in common with that Party.

"LeadPro Data" means data or other information provided by LeadPro for the purpose of delivering the Services or facilitating the Client's use of the Product (which for the avoidance of doubt shall not include or be derived from any Client Data). 

“Normal Business Hours” means 9.00 am to 5.00 pm local UK time on a Business Day.

“Personal Information” means any information that can be reasonably used to identify individuals.

“PO Commencement Date” means the date on which LeadPro will commence providing Services and invoicing the Client and/or a member of the Client Group pursuant to a Purchase Order, as specified in that Purchase Order.

“Product” means the LeadPro Enterprise product suite.

“Purchase Order” means a purchase order in the format set out in Schedule 1 (Purchase Order Template) entered into pursuant to this Agreement by the Parties.

“Services” means services set out in Annex 1 of a Purchase Order. 

“Term” has the meaning set out in Annex 1 of a Purchase Order. 

"VAT" means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature in any other applicable jurisdiction.

1.2 In this Agreement, unless the context otherwise requires:

1) words in the singular include the plural and vice versa and words in one gender include any other gender;

2) a reference to a statute or statutory provision includes:

  1. any subordinate legislation (as defined in section 21(1), Interpretation Act 1978) made under it; and

  2. any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it whether such statute or statutory provision comes into force before or  after the date of this Agreement;

3) a reference to any party includes its successors in title and permitted assigns;

4) a reference to a clause or schedule is to a clause of or a schedule to this Agreement;

5) the words "includes" or "including" shall be construed as illustrative only and shall not limit the generality of the preceding words;

6) if there is any conflict or inconsistency between any clause of this Agreement, any schedule to this Agreement and/or a Purchase Order, the following order of priority shall apply in interpreting such conflict or inconsistency: first, the relevant Purchase Order, then the relevant clause(s) of this Agreement, and finally, the Schedule to this Agreement;

7) the table of contents and headings are provided for convenience only and shall not affect the interpretation of this Agreement.

2. The Services 

2.1 LeadPro will provide the Services to the Client and/or any relevant member of the Client Group (as the case may be) in accordance with the terms of this Agreement and any applicable Purchase Orders. 

2.2 LeadPro will use reasonable endeavours to make the Services available 24 hours a day seven days a week during the Term, provided that LeadPro will be under no obligation to provide any Services:

(a) during periods of planned maintenance, which are usually carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and/or

(b) during periods of unscheduled maintenance performed outside Normal Business Hours. 

2.3 LeadPro will use reasonable endeavours to provide the Client with at 10 Business Days’ notice of planned maintenance, and at least 5 Normal Business Hours’ notice of unscheduled maintenance.  

2.4 Any member of the Client Group may order Services by submitting a purchase order in the form set out in Schedule 1 (Purchase Order Template) to LeadPro.  Once signed by both Parties the Purchase Order shall comprise a separate legally binding agreement between the relevant member of the Client Group and LeadPro, subject to the terms set out in each Purchase Order and of this Agreement.

2.5 This Agreement does not commit the Client to purchase any Services and, likewise, does not commit LeadPro to provide any Services. The Client only becomes committed to purchasing, and LeadPro only becomes committed to providing any Services upon signature by both parties of a Purchase Order in respect of such Services.

3. Fees and Payment

3.1 In consideration for the provision of the Services, the Client shall pay to LeadPro the Fees set out in the applicable Purchase Order. 

3.2 The Fees shall be paid in pounds sterling and shall be exclusive of any applicable VAT.

3.3 Unless otherwise agreed in a Purchase Order, the Client shall pay each invoice which is properly due and submitted to it by LeadPro within 30 days of receipt, by direct bank transfer to LeadPro’s nominated bank account. 

3.4 If LeadPro has not received payment of any due and serves a minimum of 30 days written notice, then without prejudice to any other rights and remedies of LeadPro: 

(a)LeadPro may suspend access by the Client to all or part of the Product and LeadPro shall be under no obligation to provide (and may at its discretion stop providing) all or any part of the Services while such invoice(s) remain unpaid; and 

(b) LeadPro shall charge interest on the outstanding sum from the date when such payment was due until the date of actual payment at a rate which is 2.5% above the sterling overnight index average rate administered by the Bank of England. Such interest shall accrue daily and shall be compounded annually.

4. Client Data

4.1 In this clause 4:

4.1.1 Controller, Data Subject, Personal Data, Personal Data Breach, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);

4.1.2 Data Protection Laws means any applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Services and/or Product, including:

4.1.2.1 the GDPR;

4.1.2.2 the Data Protection Act 2018;

4.1.2.3 any laws which Implement any such laws;

4.1.2.4 any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

4.1.2.5 all guidance, guidelines, codes of practice and codes of conduct issued by any relevant supervisory authority relating to such Data Protection Laws;

4.1.3 GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679;

4.1.4 Protected Data means Personal Data received from or on behalf of the Client, or otherwise obtained in connection with the performance of LeadPro’s obligations under this Agreement (including without limitation any Client Data which comprises Personal Data);

4.1.5 Sub-Processor means any agent, subcontractor or other third party engaged by LeadPro (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data; and

4.1.6 supervisory authority means any regulator, authority or body responsible for administering Data Protection Laws.

4.1.7    Unless otherwise expressly stated in this Agreement this clause 4 shall prevail over any other provision of this Agreement in the event of any conflict.

Compliance with Data Protection Laws

4.2     The parties agree that the Client is a Controller and that LeadPro is a Processor for the purposes of processing Protected Data pursuant to this Agreement. Both Parties shall at all times comply with Data Protection Laws where applicable to this Agreement and/or the Services. 

4.3 LeadPro shall indemnify and keep indemnified the Client against:

4.3.1 all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by LeadPro of its obligations under this clause 4; and

4.3.2 all amounts paid or payable by the Client to a third party which would not have been paid or payable if LeadPro’s breach of this clause 4 had not occurred.

Instructions

4.4 LeadPro shall  only process (and shall ensure that its personnel only process) the Protected Data in accordance with Schedule 2, this Agreement and the Client’s written instructions from time to time (including when making any transfer to which clause 4.9 relates) except where otherwise required by applicable law (and in such a case shall inform the Client of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). LeadPro shall promptly inform the Client if it reasonably considers that any instruction relating to the Protected Data infringes or may infringe any Data Protection Law. LeadPro shall not be liable for a breach of this clause 4 caused directly as a result of it following the instructions of the Client or a member of the Client Group.

Security

4.5 LeadPro shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. Such technical and organisational measures shall be at least equivalent to the technical and organisational measures set out in Schedule 2 and shall reflect the nature of the Protected Data. 

Sub-processing and personnel

4.6 LeadPro shall:

4.6.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written authorisation of that Sub-Processor by the Client and only then subject to such conditions as the Client may require;

4.6.2 ensure that access to Protected Data is limited to persons who need access to it to supply the Services;

4.6.3 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a binding written contract containing obligations equivalent to those contained in this clause 4 in respect of Protected Data;

4.6.4 remain fully liable to the Client under this Agreement for all the acts and omissions of each Sub-Processor and each of its personnel as if they were its own; and

4.6.5 ensure that all persons authorised by LeadPro or any Sub-Processor to process Protected Data are reliable and:

4.6.5.1 adequately trained on compliance with this clause 4 as applicable to the processing;

4.6.5.2 informed of the confidential nature of the Protected Data and that they must not disclose Protected Data;

4.65.3 subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential; and

4.6.5.4 provide relevant details and a copy of each agreement with a Sub-Processor to the Client on request.

Assistance

4.7 LeadPro shall (at its own cost and expense):

4.7.1 promptly provide such information and assistance (including by taking all appropriate technical and organisational measures) as the Client reasonably requires in relation to the fulfilment of the Client’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws); and 

4.7.2 provide such information, co-operation and other assistance to the Client as the Client reasonably requires (taking into account the nature of processing and the information available to LeadPro) to ensure compliance with the Client’s obligations under Data Protection Laws, including with respect to:

4.7.2.1 security of processing;

4.7.2.2 data protection impact assessments (as such term is defined in Data Protection Laws);

4.7.2.3 prior consultation with a supervisory authority regarding high risk processing; and

4.7.2.4 any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or any complaint or request relating to either Party’s obligations under Data Protection Laws relevant to this Agreement, including (subject in each case to the Client’s prior written authorisation) regarding any notification of the Personal Data Breach to supervisory authorities and/or communication to any affected Data Subjects.

4.8 LeadPro shall record and refer all requests and communications received from Data Subjects or any supervisory authority to the Client which relate (or which may relate) to any Protected Data promptly (and in any event within three days of receipt) and shall not respond to any without the Client’s express written approval and strictly in accordance with the Client’s instructions unless and to the extent required by law.

International transfers

4.9 LeadPro shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the EEA without the prior written consent of the Client (which may be refused or granted subject to such conditions as the Client deems necessary).

Records and audit

4.10 LeadPro shall maintain written records of all categories of processing activities carried out on behalf of the Client. Such records shall include all information necessary to demonstrate its and the Client’s compliance with this clause 4, the information referred to in Articles 30(1) and 30(2) of the GDPR and such other information as the Client may reasonably require from time to time. 4.11 LeadPro shall (and shall ensure all Sub-Processors shall) promptly make available to the Client such information as is reasonably required to demonstrate LeadPro’s and the Client’s compliance with their respective obligations under this clause 4 and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by the Client (or another auditor mandated by the Client) for this purpose at the Client’s request from time to time. LeadPro shall provide (or procure) access to all relevant premises, systems, personnel and records during normal business hours for the purposes of each such audit or inspection upon reasonable prior notice and provide and procure all further reasonable co-operation, access and assistance in relation to any such audit or inspection.

Breach

4.12 LeadPro shall promptly (and in any event within 24 hours):

4.12.1 notify the Client if it (or any of its Sub-Processors or personnel) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data; and

4.12.2 provide all information as the Client requires to report the circumstances referred to in clause 4.12.1 to a supervisory authority and to notify affected Data Subjects under Data Protection Laws.

Deletion/return

4.13 LeadPro shall (and shall ensure that each of the Sub-Processors and personnel shall) without delay, at the Client’s written request, either securely delete or securely return all the Protected Data to the Client in such form as the Client reasonably requests after the earlier of:

4.13.1 the end of the provision of the relevant Services related to processing of such Protected Data; or

4.13.2 once processing by LeadPro of any Protected Data is no longer required for the purpose of LeadPro’s performance of its relevant obligations under this Agreement,

and securely delete existing copies (except to the extent that storage of any such data is required by applicable law and, if so, LeadPro shall inform the Client of any such requirement).

4.14 This clause 4 shall survive termination or expiry of this Agreement for any reason.

5. LeadPro’s obligations

5.1 Subject to this clause 5, LeadPro will provide the Services in accordance with the description and/or service levels set out in a Purchase Order and with reasonable skill and care. 

5.2 LeadPro shall not be responsible and shall have no liability to the Client or any member of the Client Group for losses or damages arising directly or indirectly from: 

(a) breach of the terms of this Agreement or a Purchase Order by the Client or a member of the Client Group;

(b) failure by the Client or member of the Client Group to comply with the reasonable instructions of LeadPro in relation to the delivery of the Services or use of the Product; 

(c) any modification or alteration of the Product or any part of the Services by the Client, any member of the Client Group, any End User and/or any third party; and/or

(d) problems, conditions, delays, delivery failures or other issues associated with the Client's network connections, data links or the internet.

5.3 LeadPro does not warrant or represent that the Client’s use of Services will be uninterrupted or error-free or that the Services, Product and/or the information obtained by the Client through the Services will meet the Client’s requirements. LeadPro is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet unless any such delay, delivery failure or other loss or damage is caused as a direct result of LeadPro's breach of clause 5.6.

5.4 LeadPro will comply with all applicable laws, regulations and codes of practice with respect to its activities under this Agreement. LeadPro confirms that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

5.5 Nothing in this Agreement restricts LeadPro in any way from entering into similar agreements with third parties or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

5.6 LeadPro will use reasonable efforts to avoid any interruption to the Services (or any part thereof) as a result of a single point failure.

6. The Client’s obligations

6.1 The Client shall (and shall procure that any relevant member of the Client Group shall):

  1. provide all reasonable and necessary support and cooperation to LeadPro in order for LeadPro to discharge its obligations under this Agreement and/or any Purchase Order;

  2. provide all reasonable and necessary access to such information, databases, computer servers and systems as may be required by LeadPro in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

  3. comply with all applicable laws and regulations with respect to any matters contemplated by this Agreement;

  4. ensure that its network and systems comply with any relevant specifications provided by LeadPro at the date of this Agreement; and

  5. has in place all necessary consents and licenses necessary to enable its systems to access the Services.

6.2 The Client will carry out its obligations under this Agreement and/or a Purchase Order in a timely and efficient manner. If delays to the provision of Services occur as a result of a failure by the Client or any member of the Client Group to provide support or assistance to LeadPro (or otherwise comply with the terms of this Agreement), then LeadPro may in its sole discretion (acting reasonably) adjust any agreed timetable or delivery schedule in relation to the provision of the Services as it deems necessary.

6.3 The Client has sole responsibility for procuring and maintaining its network connections and data links from its systems to LeadPro’s data centers.

6.4 The Client will ensure that any member of the Client Group that enters into a Purchase Order pursuant to this Agreement will comply with the terms of this Agreement as if it were a party to it, and for such purposes references to Client will be construed as references to the relevant member of the Client Group.  

7. Limitations 

7.1 This clause 7 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other Party:

  1. arising under or in connection with this Agreement; and/or

  2. in respect of any representation, statement and/or tortious act or omission (including negligence) and whether arising under or in connection with this Agreement or otherwise.

  3. Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement. The Client assumes sole responsibility for the results generated through its use of the Product and Services. 

7.3 Nothing in this Agreement excludes the liability of either Party for:

  1. death or personal injury caused by LeadPro's negligence; or

  2. fraud or fraudulent misrepresentation. 

7.4 Subject to clause 7.2 and clause 7.3, neither Party shall be liable to the other Party (or, in the case of the Client, to any member of its Client Group) for any damages or other losses howsoever arising from or in relation to:

  1. loss of profits (whether direct or indirect);

  2. loss of business;

  3. depletion of goodwill and/or similar losses;

  4. loss or corruption of data or information (excluding for the avoidance of doubt any losses contemplated by clause4);

  5. pure economic loss; and/or

  6. any special, indirect or consequential loss, costs, damages, charges or expenses, and whether arising in tort (including without limitation negligence and misrepresentation), breach of statutory duty, breach of contract, restitution, or otherwise.

7.5 Notwithstanding anything else in this Agreement, each Party’s aggregate liability (excluding in relation to any indemnity provided in this Agreement or any Purchase Order) in contract, tort (including negligence or misrepresentation), breach of statute, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 120% of the total Fees paid or payable in relation to the relevant Purchase Order pursuant to which such losses arise.

8. Use of Product

8.1 Subject to the Client and each member of the Client Group paying the Fees in accordance with this Agreement and any relevant Purchase Order and complying with the terms of this Agreement and any Purchase Order, LeadPro grants to the Client and/or any relevant member of the Client Group (as the case may be) a non-exclusive, non-transferable right to use the Product during the Term specified in the relevant Purchase Order.

8.2 LeadPro will indemnify the Client against all liabilities, costs, expenses, damages and losses and all other reasonable professional costs and expenses suffered or incurred by the Client arising out of or In connection with any claim brought against the Client for actual or alleged Infringement of a third party's Intellectual property rights as a result of the Client's use of the Product and/or Services in accordance with the terms of this Agreement. 

8.3 LeadPro will retain ownership of the rights it has over the Product and any intellectual property it provides to the Client or any member of the Client Group in its performance of its obligations under this Agreement, including ownership of any materials provided to the Client or any member of the Client Group. 

8.4 The Client shall not (and shall procure that no member of the Client Group shall):

  1. alter, modify, disassemble, decompile, reverse engineer or in any other way tamper with the Product, or attempt to do so in any way whatsoever;

  2. access all or any part of the Product or Services in order to build (whether directly or through a third party) a product or service which competes with the Product and/or Services; and/or

  3. grant access to the Product or Services to third parties or attempt to do so or purport to be entitled to do so.

9. Confidentiality

9.1 Each Party (a “Receiving Party”) shall keep confidential and shall not disclose to any third party any Confidential Information which it has acquired from the other party (“Disclosing Party”) or as a result of performing its obligations under this Agreement, and shall only use such Confidential Information for purposes in connection with this Agreement. Such confidentiality obligation shall continue after the termination of this Agreement.

9.2 Confidential Information shall not include any information that:

  1. is or becomes publicly known other than through any act or omission of the Receiving Party;

  2. was in the Receiving Party’s lawful possession before the disclosure;

  3. is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;

  4. is independently developed by the Receiving Party, which independent development can be reasonably demonstrated; or

  5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

  6. LeadPro acknowledges that the Client Data is the Confidential Information of the Client.

10. Duration and Termination

10.1 This Agreement shall continue in full force and effect, commencing on the Commencement Date and continue unless and until terminated in accordance with clauses 10.2, 10.4 and/or 10.5. 

10.2 Subject to clauses 10.4 and 10.5, termination of this Agreement shall not take effect until the expiry date and/or termination of any outstanding Purchase Orders, whereupon it shall automatically terminate.  Termination of an individual Purchase Order shall not affect the continuation of this Agreement or any other Purchase Orders then in force.

10.3 Termination of this Agreement shall not prejudice or affect:

  1. the rights and obligations of the Parties under any Purchase Order wholly or partially outstanding at the date of such termination; or   

  2. any right of action or remedy which shall have accrued or shall accrue subsequently under this Agreement or any Purchase Order to either Party.

  3. Without prejudice to any other rights or remedies either Party may have, either Party shall be entitled to terminate this Agreement and/or any Purchase Order immediately without liability to the other Party if:

  4. the other Party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 10 Business Days days of the other Party being notified in writing of the breach;

  5. an order is made or a resolution is passed for the winding up of the other Party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party;

  6. an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other Party, or notice of intention to appoint an administrator is given by the other Party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);

  7. a receiver is appointed of any of the other Party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other Party, or if any other person takes possession of or sells the other Party’s assets;

  8. the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; and/or

  9. the other Party takes or suffers any similar or analogous action to those described in this clause in any other jurisdiction.

10.4 Upon termination of this Agreement for any reason each Party will:

  1. return or destroy, at the other Party’s option, any materials or data in its possession that contain Confidential Information belonging to the other Party; and

  2. the Client shall immediately cease all use of Product and all licences and rights granted under this Agreement shall immediately terminate.

11. Use of the Client's Intellectual Property Rights by LeadPro 

11.1 LeadPro will not  use or reproduce any of the Client's intellectual property rights (for any purpose connected to this Agreement or otherwise) without the prior written consent of the Client. 

12. Force Majeure

12.1 Neither Party (an “Affected Party”) shall have any liability to the other Party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business as a result of any strikes, lock-outs or other industrial disputes (excluding those involving the workforce of the party seeking to rely on this clause), failure of a utility service, transport network, data or telecommunications network (inbound and outbound traffic), 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 or storm, or any similar or analogous event (“Force Majeure Event”), provided that the other Party is notified of such an event and its expected duration and subject to compliance with clause 12.2 below.  Force majeure Event does not include any event affecting a sub-contractor or supplier of the Affected Party unless that event is itself a Force Majeure Event or any event which could be mitigated or avoided by standard business recovery, disaster mitigation and back up processes.

12.2 The Affected Party shall:

  1. take all reasonable steps to prevent and avoid the Force Majeure Event;

  2. carry out its duties to the best level reasonably achievable in the circumstances of the Force Majeure Event;

  3. take all reasonable steps to overcome and mitigate the effects of the Force Majeure Event as soon as reasonably practicable;

  4. notify the other party when the Force Majeure Event has stopped.

12.3 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 5 days the other party may terminate this Agreement including any relevant Purchase Order immediately on written notice to the Affected Party.

13. No Joint Venture, Agency or Partnership

13.1 This Agreement is a contract for the provision of services only. It does not, and shall not be construed, to create a joint venture, agency relationship or partnership between the Parties and neither Party shall have the authority to bind the other in any way (including to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

14. Rights of Third Parties

14.1 Subject to clause 14.2 this Agreement does not confer any rights on any person or party other than the Parties to this Agreement and, where applicable, their successors and permitted assigns, pursuant to the Contracts (Rights of Third Parties) Act 1999.

14.2 Subject to the terms of this Agreement, the Client agrees that it shall be liable to LeadPro for not just the losses, damages and expenses caused by the Client but also for any such losses, damages and expenses caused by any members of the Client Group, where such damage, loss or expense is caused by a breach of this Agreement or any Purchase Order by, or the negligence of, the Client or a member of the Client Group and would have been recoverable had the relevant member of the Client Group been a party to this Agreement.  

15. Transfer

15.1 Neither Party shall be entitled to assign, novate, sub-contract or otherwise deal with its rights and/or obligations under this Agreement without the prior written consent of the other Party.

16. Rights cumulative with those at general law

16.1 Except as expressly provided in this Agreement, the rights, powers and remedies conferred on any Party by this Agreement are cumulative and are additional and without prejudice to any right, power or remedy which it may have under general law or otherwise.

17. Entire Agreement

17.1 This Agreement and any relevant Purchase Order constitutes the entire agreement with regard to the subject matter hereto, and shall not be modified, amended, or superseded without the express written consent of the Parties.

17.2 Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this Agreement.

18. Notices

18.1 All notices, requests, demands, and other communications hereunder shall be in writing and shall be given by express delivery service, hand delivery, or by certified mail, postage prepaid, return receipt requested, to the address specified in the description of the Parties on the first page of this Agreement (addressed, in each case, to the person that executes this Agreement on behalf of the relevant Party).

18.2 Notices shall be deemed effective upon receipt or upon attempted delivery if delivery is refused by the intended recipient or if delivery is impossible because the intended recipient has failed to provide a reasonable means for accomplishing delivery.

19. Variation

19.1 No variation of this Agreement shall be effective unless in writing and signed by or on behalf of each of the Parties. 

20. Waiver

20.1 No failure by a Party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this Agreement will operate as a waiver of such right, power or remedy nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of such right, power or remedy or the exercise of any other rights, powers or remedies (whether provided by law or otherwise). No waiver of any breach of this Agreement shall be deemed to be a waiver of any subsequent breach. 

21. Severance

21.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.

22. Counterparts

22.1 This Agreement and any Purchase Order may be executed in any number of counterparts and by the Parties on separate counterparts, but shall not be effective until each Party has executed at least one counterpart.  Each counterpart, when executed, shall be an original of this Agreement or a Purchase Order (as applicable), and all counterparts shall together constitute one instrument.

23. Governing Law and Venue

23.1 This Agreement and any Purchase Order, and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with them shall be governed by and construed in accordance with the laws of England and Wales and the Parties irrevocably submit to the exclusive jurisdiction of the English courts in connection with any matter arising therefrom.

24. Anti-tax Avoidance

24.1 Each Party hereby warrants and confirms to the other party that:

24.1.1 neither it nor its Relevant Associates are involved or have been involved in any contract, agreement or other arrangement of any kind which could or may result in tax evasion or the facilitation thereof; and

24.1.2 it shall notify the other party immediately in writing should it become aware at any time during the term of this Agreement of any fact or circumstance which indicates that it or any of its Relevant Associates are or could be involved in tax evasion or the facilitation thereof in connection with the services to be provided by it pursuant to this Agreement.

24.2 Each Party hereby agrees to fully indemnify the other party in respect of any losses, damages, fines, penalties, charges or other costs which the other party or any Relevant Associate or other entity of that other party suffers in the event of a breach of the warranties given at clause 24.1 above.

24.3 In the event of a breach of either or both of any warranty given at clauses 24.1 above and notwithstanding the provisions of clause 27.2, the other party may, in its absolute discretion, terminate this agreement without notice and without the need for further recourse to the breaching Party and such termination shall be communicated in writing to the breaching Party within 10 Business Days of the other party becoming aware of such breach(es).

24.4 For the purposes of this clause, “Relevant Associates” means any employee, agent, contractor or any other person acting for or on behalf of the relevant person or entity.

25. Anti-bribery and Anti-slavery 

25.1 Each Party shall:

25.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption, including the Bribery Act 2010 ("Relevant Requirements");

25.1.2 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

25.1.3 have and maintain in place throughout the term of this agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and this clause 25, and shall enforce them where appropriate;

25.1.7 comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force including but not limited to the Modern Slavery Act 2015;

25.1.8 have and maintain throughout the term of this agreement its own policies and procedures to ensure its compliance; and

25.1.9 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.

25.2 Any breach of this clause 25 shall be deemed a material breach of this Agreement for the purposes of clause 10.4(a).

25.3 For the purpose of this clause 25, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act, and section 8 of that Act respectively. For the purposes of this clause 25 a person associated with LeadPro also includes any sub-contractor of LeadPro.

26. TUPE

26.1 If at any time, as a result of the provision of the Services, following the expiry or termination of this Agreement, in full or in part, rights and liabilities in respect of the contracts of employment or the contracts of employment themselves of any LeadPro personnel transfer or are alleged to transfer to the Client by virtue of the Employment Regulations ("Transferring Employee"):

26.1.1 the Client may terminate the employment of any such Transferring Employee; and

26.1.2 LeadPro shall indemnify and keep indemnified the Client against all Losses, incurred or suffered, including without limitation all reasonable legal expenses and other professional fees (together with any sales tax thereon) in relation to:

26.1.2.1 the employment and/or termination of employment of any such Transferring Employee;

26.1.2.2 any other act or omission of LeadPro in respect of such Transferring Employee; and

26.1.2.3 any other liabilities arising from the alleged application of the Employment Regulations including, for the avoidance of doubt, any failure by LeadPro to comply with any obligations regarding information and consultation pursuant to the Employment Regulations.