Terms and Conditions

Interpretation

Definitions. In these Conditions, the following definitions apply:

“Business Day”; a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Charges”; The charges payable by the Customer to the Company for the Services
“Commencement Date”; has the meaning set out in clause 2.1.
“Company”; Match Marketing UK Ltd trading as the Company registered in England and Wales with company number 9913901
“Company Data”; any and all information, documentation, records and/or data which is to be furnished by the Company in order to facilitate the performance of the Services. Including any prospective client contact lists furnished by the Company for use in making appointments by the Company (Company Contact Lists);
“Company Materials”; any document or other marketing materials, and any data or other information provided by the Company to the Customer relating to the Services, including any Company Data and any Personal Data;
“Conditions”; these terms and conditions as amended from time to time in accordance with clause 12.7.
“Contract”; the contract between the Customer and the Company for the Services
“Customer”; the person or firm who purchases the Services from the Company (including a properly authorised agent acting on behalf of the person or firm).
“Customer Data” any and all information, documentation, records and/or data which is to be furnished by the Customer in order to facilitate the performance of the Services. Including any prospective client contact lists furnished by the Customer or use in making appointments by the Company (Company Contact Lists);
“Customer Materials”; any Document or other marketing materials, and any specification, data or other information provided by the Customer to the Company relating to the Services, including any Customer Data.
“Force Majeure Event”; has the meaning given to it in Clause 11.1
“Intellectual Property Rights”; has the meaning given to it in Clause 6.
“Questions”; specific questions asked on a Script which form the basis of Company Data;
“Report”; a report of the activities of the calling team supplied in an excel format detailing (amongst others items) numbers of calls made, call outcomes, follow up information and detailed notes
“Schedule”; the heads of terms agreed by the parties, which sets out the scope of the Services and any contract variables such as price, payment terms, timescales and performance
“Script”; any information compiled by or in conjunction with the Company which contains a Question Set and other questions in order to create Company Data.
“Services”; The provision of telemarketing services on behalf of the Customer as set out in the Schedule
“Set Up Fee”; any fee referred to in the Schedule to cover, amongst other matters, training of the calling team at the offices of the Company, data cleansing, systems set up and Script writing;

Construction. In these Conditions, the following rules apply :
1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2. a reference to a party includes its personal representatives, successors or permitted assigns; and
3. a reference to writing or written includes faxes and e-mails
Basis of Contract
1. Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these Conditions
2. The order shall only be deemed to be accepted when the Company’s representative issues written acceptance of the order by signing the Schedule at which point and on which date the Contract shall come into existence (“Commencement Date”).
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 the Company which is not set out in the Contract.
4. Any samples, drawings, descriptive matter or advertising issued by the Company and any illustrations or descriptions of the Services presented to the Customer by the Company are for the sole purpose of giving an approximate idea of the Services. They shall not form part of the Contract or have any contractual force.
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.
6. Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.
Supply of Services
1. The Company shall provide the Services to the Customer using reasonable care and skill and in accordance with these Conditions.
2. The description of the Services is that as is set out in the Schedule
3. The Company shall:
  1. use all reasonable endeavours to meet any performance dates for the Services specified in the order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
  2. have the right to make any changes in relation to the supply of 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 the Company shall notify the Customer in any such event.
  3. when undertaking the Services present itself as a representative of the Customer
  4. have the right to use the Customer’s name, logos, trade and service marks for the purpose of carrying out the Services as the Customer’s representative.
  5. will endeavour to provide the Customer with a Report of activities (in a format agreed by the Company) on or by any dates set out in the Schedule and, in any event, on completion of the Services.
4. All forecasts made by the Company, including those related to appointments, are estimates given in good faith using the Company’s experience and judgement and do not constitute a guarantee, nor does the Company guarantee that the Customer will enter into an agreement with any prospective client as a result of the Services provided by the Company.
5. Where the Company is to provide Company Data on the Customer’s behalf: (“Company Data”)
  1. the Company will reasonably endeavour to ensure that the Company Data is sourced in accordance with the Customer’s criteria, but the Company acts as an agent in this respect and cannot be held responsible for the quality or relevance of any Company Data procured on the Customer’s behalf; and
  2. whilst reasonable efforts will be made to ensure the accuracy of any Company Data obtained by the Company for use in providing the Services, the Company cannot, in any circumstances, accept liability for any loss, inconvenience or damage (including loss of profits) occasioned by any inaccuracy of, or any error in, any such Company Data.
  3. Company Data will remain under the sole and exclusive ownership of the Company at all times. The Company shall have the right to analyse, manipulate, formulate conclusions and extract information from all Company Data.
  4. All Company Data obtained on behalf of the Customer shall be paid for by the Customer whether or not the Company Data is used by the Customer.
  5. the Customer is not permitted to supply, transfer or otherwise make available any Company Data to any third parties.
Customer’s obligations
1. The Customer shall co-operate fully with the Company in all matters relating to the delivery of the Services
2. The Customer shall:
  1. ensure that the terms of the order and the Schedule in relation to the Services required are complete and accurate;
  2. ensure that any products and services which the Company has been engaged to market for the Customer are, for products, as described and of merchantable quality and will, for services, be performed satisfactorily.
  3. warrant that it will not conduct any business activities which are or could reasonably be considered to be illegal, immoral or obscene and agrees not to use the Services for any such purpose.
  4. provide the Company with such information and marketing materials (“Customer Materials”) as the Company may reasonably require to and/or supply the Services, and ensure that such information is accurate in all material respects including grammar and spelling.
  5. be responsible for delivering to the Company, all Customer Materials in the manner, quantity, form, and in accordance with the delivery timescale agreed in the Schedule, where applicable.
  6. warrant and represent to the Company that the Customer has the unrestricted ability to grant any and all rights in Customer Materials
  7. warrant that any and all Customer Materials shall be true and accurate in every respect throughout the duration of the Contract and the Customer shall promptly notify the Company of any changes to the Customer Materials.
3. The Customer shall not:
  1. issue, produce or originate any information or make any statement (using Company Data or otherwise) that is untrue, false, incorrect or misleading, including, but not limited to, information relating to the Customer’s identity and contact details.
  2. at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services or termination of the Contract, as applicable, solicit or entice away from the Company, or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services without the prior written consent of the Company,
4. The Customer warrants that any and all Questions and Scripts that the Customer approves for the Company to use in connection with the Services are true and accurate in all material respects.
  1. the Company reserves the right to alter the wording of Questions at any time and without notice or to refuse to include in a Script, Questions which in the reasonable opinion of the Company are or may be illegal or offensive or are not of commercial interest.
5. If the Customer provides any Customer Data (“Customer Data”) to enable the Company to perform the Services, the Customer undertakes to provide that Customer Data (in a format to be agreed) by any date set out in the Schedule. In any event, the Customer undertakes to provide the Company with the Customer Data with sufficient time to allow the Company to perform the Services within any timescales set out in the Schedule.
  1. the Customer warrants that, as at the date of delivery to the Company, the Customer Data is accurate and up to date and that the Company may use it in order to perform the Services.
  2. the Customer warrants that the Customer shall be solely liable for the integrity, source and status of all Customer Data.
  3. the Customer shall be solely responsible for providing Corporate Telephone Preference Services (CTPS) clearance services in respect of all Customer Data.
6. If the Company’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”)
  1. the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services 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 the Company’s performance of any of its obligations;
  2. the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause; and
  3. the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
Charges and Payment
1. The Charges for the Services shall be as set out in the Schedule.
2. Payment terms shall be agreed as set out in the Schedule
3. The Customer shall pay each invoice submitted by the Company:
  1. within 7 days of the date of the invoice; and
  2. in full and in cleared funds to a bank account nominated in writing by the Company, and time for payment shall be of the essence of the Contract.
4. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
5. If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“Default Payment”), then the Customer shall pay the interest on the overdue amount at the rate of 5% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgement. the Customer shall pay the interest together with the overdue amount.
6. the Company shall also be entitled to recover from the Customer, all reasonable legal fees incurred in connection with the recovery of the Default Payment, irrespective of whether or not Court proceedings are issued.
7. the Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. the Company may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
Intellectual property rights
1. For the purposes of this Contact, “Intellectual Property Rights” means 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
2. All Intellectual Property Rights and Company Materials (“Company Materials”) in connection with carrying out the Services (including, without limitation, any presentations, methodologies and any corresponding briefs, proposals and reports) shall be owned by the Company. For the avoidance of doubt this includes any Intellectual Property Rights in the design, layout, text, logo, graphics and photographs unless already owned by a third party.
3. The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
Confidentiality
1. A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, 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.
2. 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.
3. 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.
4. This clause 7 shall survive termination of the Contract.
Customers Indemnity
1. The Customer shall hold harmless and indemnify the Company in full against all liabilities, costs, expenses, damages and losses including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Company arising out of any liability, loss, damage, injury, cost or expense sustained by any third party under this Contract.
  1. To the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer’s fraud, negligence, failure to perform, or breach of or delay in the performance of any of its obligations under the Contract or in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights or any defamation arising out of or in connection with the supply or use of the Customers Materials;
2. If any third party makes a claim, or notifies an intention to make a claim, against the Company which may reasonably be considered likely to give rise to a liability under this indemnity (“Claim”), the Company shall:
  1. as soon as reasonably practicable, give written notice of the Claim to the Customer, specifying the nature of the Claim in reasonable detail;
  2. not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Customer;
  3. give the Customer and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Company, so as to enable the Customer and its professional advisers to examine them and to take copies (at the Company’s expense for the purpose of assessing the Claim; and
  4. be deemed to have given the Customer sole authority to avoid, dispute, compromise or defend the Claim.
3. Nothing in this clause shall restrict or limit the Company’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
Limitation of liability
1. Nothing in these Conditions shall limit or exclude the Company’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation;
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
2. Subject to clause 9.1
  1. the Company 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 of profit, loss of business or any other indirect or consequential loss arising under or in connection with the Contract; and
  2. the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Customer for the Services.
3. 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.
4. This clause 9 shall survive termination of the Contract
Termination
1. Where the Contract is an ongoing contract for the Services unless the Contract is for a fixed term, then without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than one months’ written notice.
2. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;
  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];
  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;
  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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
  5. the other party (being an individual) is the subject of a bankruptcy petition or order;
  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;
  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);
  8. the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  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;
  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 10.2(b) to clause 10.2(i) (inclusive);
  11. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
  12. the other party’s financial position deteriorates to such an extent that in the Company’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
  13. 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.
3. Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
4. Without limiting its other rights or remedies, the Company may suspend the supply of Services under the Contract or any other contract between the Customer and the Company if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 10.2(b) to clause 10.2(m), or the Company reasonably believes that the Customer is about to become subject to any of them.
5. On termination of the Contract for any reason:
  1. the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  2. the Customer shall return all materials belonging to the Company which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
  3. the accrued rights and remedies of the parties as at termination shall not be affected, 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
  4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Force majeure
1. For the purposes of this Contract, “Force Majeure” Event means an event beyond the reasonable control of the Company including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company 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 Publishers or subcontractors.
2. The Company 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.
3. If the Force Majeure Event prevents the Company from providing any of the Services or the Advertisement for more than five days, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
General
1. Assignment and other dealings.
  1. the Company 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.
  2. the Customer shall not, without the prior written consent of the Company, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
2. Notices.
  1. Any notice or other communication given to a party under or in connection with this 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 or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
  2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address given, 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.
  3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
3. Severance.
  1. 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.
  2. If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
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 under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor 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.
5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
  1. the Company may accept and perform engagements for other companies, firms or persons, (including, for the avoidance of doubt, any clients, ex-clients and potential clients of the Customer) which do not conflict with or materially impinge upon the Company’s ability to provide the Services to the Customer.
  2. the Company may refer to the Customer’s name and give a general factual description of the nature of the Services performed by the Company for the Customer, in the Company’s marketing and promotional materials and presentations.
6. Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
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 the Company.
8. Governing law. This Agreement 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.
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).