INTRODUCER AND MARKETING AGREEMENT
THIS AGREEMENT is dated 07/07/2020
(1) SMILE CONNECTION LIMITED incorporated and registered in England and Wales with company number 12424991 whose registered office is at 6 Birchy Cross Business Centre, Broad Lane, Tanworth-In-Arden, United Kingdom, B94 5DN (“SCL”);
(2) [Hutch House Digital Media] incorporated and registered in England and Wales with company number [Hutch House Digital Media] whose registered office is at [70 Jubilee Way] (“Practice”).
1.1 The following definitions and rules of interpretation apply in this Agreement:
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Commencement Date: the date when this Agreement has been signed by both parties.
Commission: has the meaning given to it in clause 5.1.
Contract Year: means a 12 month period commencing on the Commencement Date or any anniversary of it.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any other directly applicable European Union regulation relating to privacy.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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.
Introduction: the provision to the Practice of the contact details of a Prospective Client. Introduce, Introduces, and Introduced will be interpreted accordingly.
Marketing Services: SCL will advertise and market the Treatment online, targeting potential customers for the Treatment residing in the Territory using such online (including social media) channels as SCL decides including (without limitation) Google and Facebook.
Prospective Client: a person to whom the Practice has not at any time previously provided the Treatment.
Relevant Contract: a contract for the supply of Treatment entered into between the Practice and a Prospective Client who was Introduced by SCL.
Treatment: the supply of Invisalign dental treatment or dental implants by the Practice.
Treatment Cost: the amount agreed with the Prospective Client at the time the Relevant Contract is entered into be paid under such Relevant Contract to the Practice for the Treatment (including any value added tax).
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
1.2 A reference to:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.2 a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and will include all subordinate legislation made from time to time under that statute or statutory provision;
1.2.3 writing or written includes email but not fax; and
1.2.4 including or include or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and Duration
This Agreement will commence on the Commencement Date and will continue until it is terminated in accordance with clause 11 or 8.2.
3.1 The Practice appoints SCL to identify Prospective Clients for the Practice and to make Introductions of such persons on the terms of this Agreement.
3.2 SCL will:
3.2.1 use all reasonable endeavours to make Introductions of Prospective Clients;
3.2.2 on request, report to the Practice on progress made with Prospective Clients;
3.2.3 have no authority, and will not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind the Practice in any way;
3.2.4 not make or enter into any contracts or commitments or incur any liability for or on behalf of the Practice;
3.2.5 be permitted to use the Practice’s name, logo and trade marks on marketing material for the Treatment in connection with the performance of the Marketing Services.
3.3 Where a Prospective Client is Introduced by SCL and the Prospective Client then introduces the Practice to a third party who purchases the Treatment from the Practice, SCL will be deemed to have Introduced the third party to the Practice.
4. Marketing Services
4.1 The Practice appoints SCL on an exclusive basis to provide Marketing Services.
4.2 Notwithstanding clause 4.1, the Practice may itself advertise and market the Treatment but may not use pay-per-click advertising on Facebook.
4.3 SCL will:
4.3.1 supply the Marketing Services with reasonable care and skill; and
4.3.2 remove any online posts (including on social media) over which it has control at the request of the Practice as soon as reasonably possible.
5. Commission and Payment
5.1 SCL will be entitled to Commission if a Prospective Client Introduced by SCL enters into a Relevant Contract. The amount of such commission will be at the rate of 10% of the Treatment Cost under each Relevant Contract.
5.2 The Practice will notify SCL in writing of the date it enters into a Relevant Contract and the amount due for Treatment under it no later than 5 Business Days after it enters into such Relevant Contract.
5.3 Within 7 days of the end of each month, the Practice will send to SCL a written statement setting out, in respect of that previous month, and in respect of each Relevant Contract, the Commission payable to SCL and how the Commission has been calculated.
5.4 SCL will invoice the Practice for the Commission payable in accordance with the Practice’s statement submitted pursuant to clause 5.3 together with any applicable VAT and the due date for payment by the Practice will be 30 days from the date of the invoice.
5.5 Commission will be payable to SCL in pounds sterling.
5.6 If any dispute arises as to the amount of Commission payable by the Practice to SCL, the same will be referred to SCL’s auditors for settlement and their decision, save in the case of manifest error, will be final and binding on both parties.
5.7 If the Practice fails to make any payment due to SCL under this Agreement by the due date for payment, then, without limiting SCL’s other rights and remedies, the Practice will pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Practice will pay the interest together with the overdue amount.
5.8 The Practice will keep separate accounts and records giving correct and adequate details of all Relevant Contracts entered into by the Practice and the corresponding Treatment Costs. The Practice will permit the duly appointed representatives of SCL at all reasonable times to inspect all such accounts and records and to take copies of them.
5.9 Termination of this Agreement, howsoever arising, will not affect the continuation in force of this clause 5 and the Practice’s obligation to pay Commission to SCL in accordance with it.
6. Obligations of the Practice
6.1 The Practice will:
6.1.1 act in good faith towards SCL;
6.1.2 provide SCL with the information SCL reasonably requires to perform its duties, including (without limitation) marketing information for the Treatment and information about the Practice;
6.1.3 provide SCL with access to the Practice’s social media accounts and pages for the purpose of enabling SCL to provide the Marketing Services;
6.1.4 inform SCL immediately if the Practice suspends or ceases to sell the Treatment; and
6.1.5 use all reasonable endeavours to follow up any Introduction made by SCL within 24 hours of receipt of the Prospective Client’s contact details.
Each party will at its own expense comply with all laws and regulations relating to its activities under this Agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
8. Data Protection
8.1 The following definitions apply in this clause 8:
8.1.1 Agreed Purposes: the performance by both parties of their respective obligations in relation to Introductions under this Agreement.
8.1.2 Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
8.1.3 Permitted Recipients: The parties to this Agreement, the employees of each party and any third parties engaged to perform obligations in connection with this Agreement.
8.1.4 Shared Personal Data: the personal data to be shared between the parties under this Agreement. Shared Personal Data will be confined to names and contact details of Prospective Clients.
8.2 Each party will comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation will, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
8.3 In the context of the Marketing Services provided by SCL pursuant to this Agreement:
8.3.1 SCL and the Practice acknowledge that for the purposes of the Data Protection Legislation, the Practice is the data controller and SCL is the data processor.
8.3.2 This clause 8.3.2 sets out the details of such processing:
(a) scope, nature and purpose of the processing by SCL: the scope, nature and processing of the personal data will be limited to that required to fulfil the obligations of the parties under this Agreement.
(b) duration of the processing: the duration of this Agreement.
(c) types of personal data and categories of data subject: names and contact details of employees at the Practice and employees at SCL.
8.3.3 SCL will in relation to any personal data processed in connection with this Agreement:
(a) process that personal data only on written instructions of the Practice;
(b) keep the personal data confidential;
(c) comply with the Practice’s reasonable instructions with respect to processing personal data;
(d) not transfer any personal data outside of the European Economic Area without the Practice’s prior written consent;
(e) assist the Practice in responding to any data subject access request and to ensure compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Practice without undue delay on becoming aware of a personal data breach or communication which relates to the Practice’s or SCL’s compliance with the Data Protection Legislation;
(g) at the written request of the Practice, delete or return personal data and any copies thereof to the Practice on termination of this Agreement unless required by the Data Protection Legislation to store the personal data; and
(h) maintain complete and accurate records and information to demonstrate compliance with this clause 8 and allow for audits by the Practice or the Practice’s designated auditor.
8.4 In the context of the making of Introductions by SCL pursuant to this Agreement, each party acknowledges that one party (“Data Discloser”) will regularly disclose to the other party (“Data Recipient”) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party will:
8.4.1 assist the other in complying with all applicable requirements of the Data Protection Legislation;
8.4.2 ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
8.4.3 give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing;
8.4.4 process the Shared Personal Data only for the Agreed Purposes;
8.4.5 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
8.4.6 ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this Agreement;
8.4.7 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
8.4.8 not transfer any personal data obtained from the Data Discloser outside of the European Economic Area unless the prior written consent of the data subject has been obtained and the following conditions are fulfilled:
(a) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
(b) the transferring party complies with its obligations under the Data Protection Legislation ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
8.5 Each party will indemnify the other against all claims and proceedings and all liability, loss, costs and expenses incurred by the other as a result of any claim made or brought by a data subject or other legal person in respect of any loss, damage or distress caused to them as a result of any breach by the other party of the Data Protection Legislation by that party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
9. Limitation of Liability
9.1 Nothing in this Agreement will limit or exclude the liability of either party for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation or wilful default; or
9.1.3 any matter in respect of which it would be unlawful to exclude or restrict liability.
9.2 Subject to clause 9.1 above:
9.2.1 neither party will under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
(a) any loss of profit, sales, revenue, or business;
(b) loss of anticipated savings;
(c) loss of or damage to goodwill;
(d) loss of agreements or contracts;
(e) loss of use or corruption of software, data or information;
(f) any loss arising out of the lawful termination of this Agreement or any decision not to renew its term, or
(g) any loss that is an indirect or secondary consequence of any act or omission of the party in question.
9.2.2 the total liability of SCL to the Practice in respect of all breaches of duty arising in any Contract Year in respect of all other loss or damage arising under or in connection with this Agreement (including (without limitation) in relation to clause 8.5), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed 100% of the Commission paid by the Practice to SCL in the Contract Year in which the breaches occurred.
10. Intellectual Property
10.1 All Intellectual Property Rights in or arising out of or in connection with the Marketing Services (other than Intellectual Property Rights in any materials provided by the Practice) will be owned by SCL.
10.2 The Practice will not at any time use any marketing or advertising materials (including (without limitation) videos) created or used by SCL for the Marketing Services.
10.3 The Practice grants SCL a fully paid-up, non-exclusive, royalty-free licence to copy and modify any materials provided by the Practice to SCL for the term of this Agreement for the purpose of providing the Marketing Services.
11.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement on giving not less than 1 month’s written notice to the other party.
11.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice if the other party:
11.2.1 commits a material breach of any this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
11.2.2 fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
11.2.3 is the subject of a proposal for a voluntary arrangement;
11.2.4 is the subject of an administration order;
11.2.5 has an administrative or other receiver appointed over the whole or any part of its assets;
11.2.6 passes a resolution for its winding up, is the subject of a petition presented for its winding up, or is the subject of a winding up or dissolution other than the voluntary winding up of a solvent company for the purposes of amalgamation or reconstruction;
11.2.7 enters into any kind of composition scheme, arrangement compromise or arrangement for the benefit of its creditors;
11.2.8 ceases, or threatens to cease, trading; or
11.2.9 undergoes any action that is similar to the above in any other jurisdiction.
11.3 The rights of the parties under clause 11 are without prejudice to any other rights that either party might have at law to terminate this Agreement or to accept any breach of this Agreement as having brought this Agreement to an end. Any delay by a party in exercising its rights to terminate will not constitute a waiver of these rights.
11.4 Termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
12.1 No Partnership or Agency. Nothing in this Agreement is intended to establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of the other party.
12.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and will have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause 12.2 will limit or exclude any liability for fraud.
12.3 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
12.4 Governing Law and Jurisdiction. 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) will be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
THIS AGREEMENT has been entered into on the date stated at the beginning of it.
…………………………………………….. (print name)
for and on behalf of SMILE CONNECTION LIMITED ………………..
for and on behalf of [Hutch House Digital Media]