PART 1

YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND ACCEPT THIS AGREEMENT, IN PARTICULAR THE LIMITATIONS OF LIABILITY AT CLAUSE 11 BELOW.

GENERAL TERMS AND CONDITIONS

1. Definitions and Interpretations

1.1 In this Agreement:

"Action" means: a “click through” to your website by a Buyer; a Qualified Lead sent to you by us; or such other service as we shall make available to you from time to time;

"Action Cost" means the cost of an Action made in connection with your Listing and/or the Services provided by us to you;

"Affiliates" means any of our affiliated companies (as defined in Section 416 of the Income and Corporation Taxes Act 1986), or any other person or business which has, or in which Approved Index has, a direct or indirect interest;

“Agreement” means the General Terms and Conditions; the relevant Special Terms and Conditions; and such other terms and conditions as may be notified to you by us from time to time;

"Approved Index" means Approved Index Ltd (Company Number: 05046350), whose registered office is at 2 Ockenden Gardens, Woking, GU22 7LY;

"Bill" means the total amount payable for a calendar month by you, which is calculated by multiplying each relevant Action Cost by the number of Actions which have occurred in that period in connection with the Index(es) and Services to which you have subscribed;

"Buyer" means a visitor to the Web Site who has indicated they are interested in investigating or purchasing goods or services relevant to the Index they are visiting;

"Category" means any one of the regional or sector-based categories into which an Index may be divided from time to time;

"Confidential Information" means all confidential information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by one party to the other party whether before or after the date of this Agreement including, without limitation, information relating to the disclosing party’s business, plans or intentions, service information, know-how, trade secrets, market opportunities and affairs;

"Copy" means the style, content and form of your Listing, which may appear on our Web Sites and other materials, as approved by us;

”General Terms and Conditions” means the terms and conditions contained in Part 1 of this Agreement;

"Index" means a channel of leads associated to a product or service, to which suppliers may subscribe

"Intellectual Property Rights" means all intellectual property rights of any nature whatsoever, whether registered or unregistered including, without limitation, patents, copyrights, performer’s rights, recording rights, moral rights, trademarks, designs, know-how, database and rights in Confidential Information;

"Law" means any law, statute, regulation, instruction, guideline or code of conduct having force of law of any governmental or other regulatory authority of competent jurisdiction (including but not limited to any term in any licences issued by any such authority and any data protection requirements) in all cases as amended, replaced and supplemented from time to time;

"Listing" means a synopsis of your business, as approved by us;

“Online Account” means the central account that you login to within our system, which contains details of your Qualified Leads, the Services to which you have subscribed and the Listings that you’ve completed regarding you or your company.

"Promotional Trial" means the current promotional offer available to you, as described above or as offered to you in writing by us on the terms and conditions contained in such offer or as set out in clause 7 of this Agreement;

"Qualified Lead" means a lead that is reasonably relevant to the applicable Index (in our sole opinion) that has been completed and sent to you by a Buyer;

"Services" means the services subscribed to by you to be provided by us under this Agreement, which you have selected on our Web Sites, or in discussion with our staff, and through which you receive Qualified Leads or other Actions

“Special Terms and Conditions” means those terms and conditions contained in Part 2 of this Agreement;

"Supplier Branding" means your trade marks and branding which appears in the Index Entry;

"Testimonial" means a genuine quote from a customer (who may have been a Buyer) providing feedback on the goods or services provided by you; and

"Web Sites" means the web sites run by us or our parent or subsidiary companies, from time to time, which are used to offer our Services on the Internet (as amended from time to time and identified on the www.approvedindex.co.uk homepage), which is currently located at www.approvedindex.co.uk.

1.2 In this Agreement:

1.2.1 “we” means Approved Index who is entering into this Agreement and “us”, “our” or “ours” shall be construed accordingly; and
1.2.2 “you” means the natural or legal entity of the supplier who is entering into this Agreement (as may be specified on the Online Account, Order Form or other communication from you to us) and “your” or “yours” shall be construed accordingly.

1.3 To the extent that the General Terms and Conditions contain conflicting provisions to the Special Terms and Conditions, the Special Terms and Conditions shall prevail in relation to the relevant Service provided.

2. Fees and Payment

2.1 In consideration of the Services provided by us, you shall pay us the Bill (plus VAT) by direct debit or credit/debit card (including Delta, Electron, Mastercard, Solo, Switch / UK Maestro, VISA) monthly in arrears.

2.2 We will send you a monthly invoice via email (to the email address supplied by you for such purposes) on or following the 1st working day of each calendar month, which will be based on the number of Actions that have occurred in connection with the Indexes to which you have subscribed and the Action Costs.

2.3 The amount payable under each invoice will be taken from your nominated account no sooner than 3 days after the invoice is sent out (except in the case of direct debit, where payment will be taken from your account 10 days after the invoice is sent out).

2.4 If you do not pay your Bill in full within 10 days after the receipt of invoice (the "Due Date"), we may (at our sole discretion) do any or all of the following:

2.4.1 charge interest at the rate of 3% above the base rate of National Westminster Bank Plc (from time to time) from the Due Date until the date of actual payment in full;
2.4.2 terminate this Agreement immediately on written notice: and/or
2.4.3 continue to provide billable Services but suspend access to your Online Account until you contact our accounts department and we have received payment of your Bill in full.

2.5 We reserve the right to change the Action Costs, by giving you not less than 14 days’ notice, which shall be effected by the changes notified on our Web Sites.

2.6 Should any payment to us by you using any method fail for any reason then we shall charge you an administrative fee of £20 +VAT.

3. Term

This Agreement shall commence on the date hereof and continue until terminated in accordance with this Agreement.

4. Your obligations

4.1 You shall add your Copy to your Listings for each Index to which you have subscribed, which shall include, without limitation, GIF logo files, full company name and contact details and three Testimonials, in accordance with the procedures required by us from time to time and stated on the Web Site.

4.2 You acknowledge and agree that we retain full editorial control over all Listings on our Web Sites and that we will own all Intellectual Property Rights in the Copy and Listings, save that Approved Index shall not own any of your Supplier Branding.

4.3 You shall not resell, pass on or otherwise disclose any information arising from or in connection to an Action or Qualified Lead to any third party and such information is expressly provided to you for use in accordance with this Agreement only.

4.4 You agree to the following in relation to the goods or services you provide to any Buyer following a Qualified Lead:

4.4.1 You shall have sole responsibility for the goods or services provided and in the event you have a dispute with one or more Buyers, you release us, our Affiliates, our agents and employees from any claims, demands, and/or damages arising out of or in any way connected with that dispute;
4.4.2 You shall not say anything to the Buyer or any third party to suggest that you are acting on behalf of us or that we have approved of or endorsed your goods or services; and
4.4.3 You shall have up-to-date and in force Public and Employers Liability insurance to cover a sum as appropriate for the goods or services you provide and connected potential liability.

5. Listings

5.1 You hereby grant us an irrevocable perpetual non-exclusive worldwide licence to publish your details and your Copy and Listings on our Web Sites and other materials, and to link your web site.

5.2 The positioning, placement and appearance of your Listing on our Web Sites and other materials is to be determined by us at our sole discretion and we reserve our right to refuse any application to subscribe for our Services.

5.3 We do not guarantee the quality of any Qualified Lead you receive. We shall not be liable in connection with any Qualified Lead for:

5.4.1 the quality or budget of the Buyer;
5.4.2 conflicts of interest which you may have relating to a Buyer;
5.4.3 the timeliness or deadline required for the underlying work or your capacity to perform it for a Buyer (including in relation to the location of the required work); or
5.4.4 your inability to contact the Buyer where valid contact details are provided in the Qualified Lead.

5.4 We reserve the right to vary the Actions available to be performed in connection to the Services.

5.5 We reserve the right to change the structure and content of our Web Sites at any time.

5.6 We may source Qualified Leads from the Website, any websites of our Affiliates or any other source that we consider appropriate.

6. Logos

6.1 We hereby grant you a revocable non-transferable licence to use our logos and such other of our Intellectual Property Rights as we may notify you of from time to time provided always that:

6.1.1 you are permitted to use our name for the purposes of identifying to the Buyer where the Qualified Lead originated;

6.1.2 we can revoke and terminate such licence at any time and upon such revocation or termination you shall immediately cease to use our Intellectual Property rights so licensed;

6.1.3 you shall only use our logos or any of our Intellectual Property Rights so licensed for such purposes as shall have been approved by us in writing beforehand; and

6.1.4 you shall indemnify and hold us harmless against any loss, liability and cost which we may incur as a result of any claim arising out of or in relation to any breach by you of such licence (including, without limitation, each loss, liability and cost reasonably incurred as a result of defending or settling a claim alleging such a liability).

7. Promotional Trial

7.1 If offered by us to you in writing and at our sole discretion, you may be entitled to a Promotional Trial in accordance with the terms and conditions contained in such offer.

7.2 If you fail to notify us in writing (in accordance with clause 8.2) before the end of a Promotional Trial that you do not wish to continue to use our Services following the expiry of a Promotional Trial, this shall constitute an agreement by you to continue using those Services under such Promotional Trial at the normal Action Costs and shall receive Bills in accordance with clause 2 accordingly (including for any Action Costs incurred during that Promotional Trial).

8. Cancellation, Suspension and Termination

8.1 You may terminate this Agreement by giving us notice in accordance with clause 8.2 and the Agreement shall terminate 30 days after receipt of such notice by us. You shall pay for any Actions which take place during this period up to the date of termination.

8.2 To be valid, notices to terminate made pursuant to clause 8.1 must be made by email to cancellations@approvedindex.co.uk or using any such alternative procedure and contact details provided by us for such purpose and notified to you in writing from time to time.

8.3 For the avoidance of doubt, the licence granted to us under clause 5.1 shall survive the term of this Agreement and we may at our sole discretion decide whether or not to remove your Listing after termination of this Agreement.

8.4 For the avoidance of doubt, no refunds or credits will be payable by us for any termination by you.

8.5 The following events shall be deemed to be an “Event of Default”:

8.5.1 your Copy is Unacceptable, where "Unacceptable” means that the Copy is inaccurate, contravenes any Law, infringes the Intellectual Property Rights of any third party, is abusive, immoral or otherwise likely to offend Buyers or users of the Web Site or the Internet in general (at our sole discretion);
8.5.2 you have failed to pay to us any amount that is due under this Agreement;
8.5.3 you have materially breached one of your obligations under this Agreement and, where such breach is capable of remedy, have failed to remedy that breach within 14 days of being required in writing to do so by us;
8.5.4 you pass a resolution for your winding up or a court of competent jurisdiction makes an order for your winding up or dissolution;
8.5.5 the making of an administration order in relation to you or the appointment of a receiver over, or an encumbrancer taking possession of or selling, any of your assets; or
8.5.6 you make an arrangement or composition with your creditors generally or make an application to a court of competent jurisdiction for protection from your creditors generally;

8.6 On the occurrence of an Event of Default we may:

8.6.1 suspend your access to our Web Sites, preventing you from viewing your Online Account and any Qualified Leads until such time as the Event of Default is remedied (which shall be judged at our sole discretion); and/or

8.6.2 terminate this Agreement with immediate effect upon written notice at any time on or after the date the Event of Default occurred.

8.7 For the avoidance of doubt, if we suspend your access pursuant to clause 8.6.1, you will continue, in accordance with clause 2, to pay for any Qualified Leads which are made available during such period of suspension while this Agreement remains in force.

8.8 The termination of this Agreement shall not affect either party’s accrued rights or obligations, any duties of confidentiality, or any other provisions that are expressly or impliedly intended to survive termination.

9. Warranties

9.1 You warrant that:

9.1.1 this Agreement has been accepted by and is binding on you, having been entered into by a duly authorised representative or agent on your behalf;
9.1.2 your Copy and Listings shall not infringe any Law or Intellectual Property Rights of a third party at any time;
9.1.3 your Copy is true, accurate and not misleading at any time;
9.1.4 you have all necessary consents, approvals and releases to authorise us to publish the Copy on our Web Sites worldwide in perpetuity and grant the licence in clause 5.2;
9.1.5 you shall provide us with all assistance we may require from time to time in connection with the provision of the Service; and
9.1.6 your Testimonials are genuine feedback comments received from your customers.

10. Indemnities

You shall indemnify and hold us harmless against any loss, liability and cost which we may incur as a result of any claim arising out of or in relation to any breach by you of any representation, warranty, undertaking or obligation contained in this Agreement (including, without limitation, each loss, liability and cost reasonably incurred as a result of defending or settling a claim alleging such a liability).

11. Limitation of Liability

11.1 Should you have any complaint relating to an Qualified Lead you, such complaint may be validly notified by emailing us at info@approvedindex.co.uk within 14 days of receiving the relevant Qualified Lead. If we agree that the Qualified Lead is not a genuine lead or does not relate to the Index in question, we will provide a further Qualified Lead free of charge as compensation. You hereby agree that you are not entitled to any refund and your sole remedy in connection with any disputed Qualified Lead is set out in this clause 11.1.

11.2 We can in no way be held in any way responsible should you fail to fulfil your obligations to a Buyer.

11.3 We do not guarantee that any Actions shall occur in connection with any Listing.

11.4 Our Websites are provided on an "as is" and "as available" basis. We expressly disclaim, to the fullest extent permitted by law, any and all warranties, conditions and other terms implied by statute or common law relative to the operation of our Websites or the information, content, and Services provided on or through our Web Sites.

11.5 Without prejudice to clause 11.7 below, we accept no liability under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any of the following:

11.5.1 loss of profit or sales;
11.5.2 loss of opportunity;
11.5.3 loss of turnover;
11.5.4 loss of use of any hardware, software or data;
11.5.5 loss of or damage to business; or
11.5.6 indirect, special or consequential loss or damage.

(For the purposes of this clause the term "loss" includes a partial loss or reduction in value as well as a complete or total loss.)

11.6 Without prejudice to clause 11.7 below, our liability under this Agreement shall be restricted to the total amount (less VAT) paid by you to us in the twelve month period immediately preceding the event which gave rise to such a claim.

11.7 Nothing in this Agreement shall limit our liability:

11.7.1 for death or personal injury caused by our negligence or the negligence of our employees or agents;
11.7.2 for breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
11.7.4 for fraudulent misrepresentation; or
11.7.5 for any liability which cannot be excluded or limited by applicable law.

11.8 We shall not be liable for any delay in or non-performance of our obligations under this Agreement to the extent that such delay or non-performance is due to any cause beyond our reasonable control including but not limited to the acts, defaults or omissions of suppliers or sub-contractors, failure of any telecommunications or power network, war, undeclared hostilities, terrorism, industrial action and acts of God.

12. Confidentiality

12.1 Each party undertakes to the other: (i) to keep confidential all Confidential Information regarding the other and not to disclose the same in whole or in part to any person (other than any employee, agent, professional advisor or subcontractor having a need to know) without the other’s written consent; and (ii) to use Confidential Information belonging to the other party solely in connection with the performance of their respective obligations under this Agreement.

The provisions of this section shall not apply to any Confidential Information which is already in the public domain, lawfully obtained from a third party free from any duty of confidentiality, which was already in the possession of the receiving party at the time of entering into this Agreement, or where a party is required to disclose such Confidential Information as a matter of law.

13. General

13.1 You shall enter into this Agreement in your own right as principal and not as an agent to any third party.

13.2 The terms and conditions of this Agreement represent the entire agreement between the parties in relation to the subject matter of this Agreement.

13.3 A delay by either party in exercising any of its rights and remedies shall not constitute a waiver of those rights and remedies unless expressly agreed in writing.

13.4 The invalidity of any term or condition of this Agreement shall not affect the validity of the remainder of this Agreement.

13.5 The parties hereto are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

13.6 We may freely assign or transfer this Agreement to any third party. You may not assign or otherwise transfer this Agreement without our prior written approval.

13.7 Unless expressly provided in these terms, no party who is not a party to this Agreement has any rights pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.8 This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.


PART 2

SPECIAL TERMS AND CONDITIONS

The relevant Special Terms and Conditions for the services supplied shall apply in conjunction with the General Terms and Conditions. To the extent that the General Terms and Conditions contain conflicting provisions to the Special Terms and Conditions, the Special Terms and Conditions shall prevail in relation to the relevant Service provided.

1. Approved Index

“Approved Index” means an Index on which a number of supplier Listings appear, and where such suppliers are billed for all Action Costs.

(A) If we accept your application to subscribe to this service, your Copy and Listing will appear on any Category of any Index to which you have applied. You will receive Qualified Leads that are generated through the Category of the Index to which you are subscribed until such time as you are removed from the Index in accordance with the terms of this Agreement.

(B) The Actions that will appear on your Bill for Approved Index include Qualified Leads and click throughs from your Listing on the Index to your website.

2. Approved Index Plus

“Approved Index Plus” means an index on which suppliers may select in advance the maximum number of leads they would like to receive each week, as described on the Website from time to time.

(A) There is no notice period for suspending your use of Approved Index Plus. You may suspend and resume your subscription to this service at will by updating your selection in your Online Account. For the avoidance of doubt, the Agreement continues in effect notwithstanding any such suspension.

(B) You may set a maximum number of Qualified Leads you can receive each week during your subscription to this service, thereby determining the number of Qualified Leads that will be payable under your Bill for this service.

3. The Quote Line

“The Quote Line” means our non-directory service where qualified leads are categorised and priced according to the size of their budgets, as described on the Website from time to time.

(A) There is no notice period for terminating your use of The Quote Line. You may suspend and resume your subscription to this service at will by contacting us via email at info@thedealgenerator.com. For the avoidance of doubt, the Agreement continues in effect notwithstanding any such suspension.

(B) Your Copy is not required for this service as no Listings appear on our Websites in relation to this service.

4. Top 10

“Top Ten” means our Top10 brand, through which we generate leads in much the same way as through Approved Index, as described on the Website from time to time.

(A) If we accept your application to subscribe to this service, your Copy and Listing will appear on any Category of any Index to which you have applied. You will receive Qualified Leads that are generated through the Category of the Index to which you are subscribed until such time as you are removed from the Index in accordance with the terms of this Agreement.

(B) The Actions that will appear on your Bill for Top10 include Qualified Leads and click throughs from your Listing on the Index to your website.