LGO: The Lead Generation order created by Magpie within this contract consisting of an order of emails, URL’s and SEO terms.
Milestone(s): Means a point in the creation of the LGO that is marked by completion of a measurable amount of work.
Milestone Deliverable(s): Means the elements of the Lead Generation Order (in whole or in part) that Magpie is required to deliver to COMPANY hereunder pursuant to a Milestone set forth in Appendix 1.
Milestone Date(s): Means the date on or prior to which Magpie is required to submit Milestone
Deliverables to COMPANY that meet the requirements set forth for that Milestone Date(s).
Appendix 1: A milestone and payment schedule listing Milestone Date(s) when Magpie must deliver milestone(s) to COMPANY, and describing what those Milestone Deliverable(s) must contain.
Appendices: Appendix 1 Milestones, Appendix 2 Lead Generation Order.
2. Goals and Dates
(a) COMPANY desires to engage Magpie to create an Email and URL list as per the search engine terms, and conversations given to Magpie and recorded via email, verbal meetings and making up the specification of this contract both recorded online and physically.
(b) Magpie and COMPANY agree to accept such engagement on the terms and conditions set forth in this Agreement. This Lead Generation Agreement (the “Agreement”) is entered into as of the date in the paid for LGO attached or otherwise making up the Agreement.
(c) This contract covers Lead Generation according to the LGO in Appendix 2 and any minor changes or additions. It does not cover additional major features, algorithms, or further and future additions, unless a new LGO is requested by COMPANY, in which case it can be seen as an addendum to this agreement.
(a) The parties acknowledge and agree that the designs, graphics, artworks and other characteristics associated therewith and any and all emails and URL’s embodied in the service created, owned or licensed by COMPANY, and all copyrights therein and thereto, and all renewals and extensions thereof, shall be owned by COMPANY. Any use of the COMPANY’s intellectual property rights is prohibited outside of section 7(a).
(a) The Services is provided “as is”. Magpie and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Magpie nor its suppliers and licensors, makes any warranty that the Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Services at your own discretion and risk.
(b) COMPANY is entitled to receive the emails, URLS and search engine terms created by Magpie to complete the work outlined in 2.(a) Magpie agrees to assign a universal, worldwide, non-reversible license for data found via contract to such materials, emails, URLS and search engine terms created for the order to COMPANY.
(c) COMPANY agrees and accepts that COMPANY will only have license of any Milestone Deliverable(s) and Milestone(s) for which COMPANY has given Notice of Approval and subsequent Milestone payment to Magpie. COMPANY will specifically not have the rights outlined in sections 3b and 3c of this Agreement for any Milestone Deliverable(s) and Milestone(s), which COMPANY has not given Notice of Approval for and for which COMPANY has not paid Magpie.
4. Delivery and Approval
(a) The Milestone Deliverables delivered hereunder by Magpie shall be delivered to COMPANY on or before the corresponding Milestone Date set forth on Appendix 1. COMPANY shall be deemed to have approved the Milestone Deliverables on delivery of all emails and URL’s to COMPANY by Magpie within a pass worded ZIP file, and within 8 business days.
(b) COMPANY shall have a period of five (5) business days (the “Approval Period”) from the date upon which Magpie makes the delivery of the Milestone Deliverable for each subject Milestone to COMPANY to evaluate the Milestone Deliverables for approval, and shall notify Magpie in writing within said period of COMPANY’s approval of the Milestone Deliverables (“Notice of Approval”), or of COMPANY’s non-approval of the Milestone Deliverables (“Notice of Non-Approval”).
(c) If COMPANY duly gives a Notice of Non-Approval, said Notice of Non-Approval shall set forth the error corrections, omissions or deviations from specification, to the Milestone Deliverables required by COMPANY, for COMPANY to issue a Notice of Approval. Magpie shall on receiving a Notice of Non-Approval resubmit at no charge to COMPANY the revised Milestone Deliverables within ten (10) business days, a further corrected copy of the Milestone Deliverables in which such changes have been implemented and such errors have been corrected and the Approval Period for COMPANY shall thereupon be further extended for an additional three (3) business days after the delivery of the changed and/or corrected version. COMPANY agrees to not withhold issuance of Notice of Approval unreasonably. The issuance of a Notice of Non-Approval may affect subsequent Milestone Date(s), and the parties agree to negotiate in good faith any required re-scheduling of subsequent Milestone Date(s).
(d) If COMPANY fails to provide Magpie with a Notice of Approval or Notice of Non-Approval within the Approval Period, the Milestone and Milestone Deliverables are automatically considered to have been approved (with similar effects as if COMPANY has actively provided a Notice of Approval).
(e) Notwithstanding anything to the contrary contained herein, if Magpie’s failure to submit the Milestone Deliverables to COMPANY on or before the relevant Milestone Date is due to a delay by COMPANY, or any third party in approving the Milestone Deliverables submitted on or before a prior Milestone Date, then such failure shall not be deemed a breach of this Agreement by Magpie. In addition should such delay occur, COMPANY accepts to extend the subsequent Milestone Dates for a number of days equal to the number of days of delay caused by COMPANY
(f) The 90% Delivery Rate Guarantee is from the date of delivery of your leads by us via email, Magpie promises to make the difference of emails remaining undelivered under the 90% threshold. E.g. If the COMPANY is delivered 1000 emails by Magpie, and only 800 of them are delivered when attempting to email them (Do not bounce) within 1 month of the data being delivered by us, the company will be entitled to another 100 emails for free.
(g) We guarantee a refund on orders we either i) Cannot completely (Not partially) fulfill after receiving payment or ii) Do not deliver your order within 8 business days to you for whatever reason. You are eligible for a full refund on database delivery’s that are never made within 8 days of payment.
(h) Should we be for any reason not able to fulfill your current requirement, you are entitled to request more leads from Magpie should the primary requested search term not be available to the extent requested in any other vertical.
5. Optimization & Additional Work Requests
(a) COMPANY will pay for any extra work, optimization, improvement of quality, or additional content beyond that defined in Appendix 2 an amount agreed and given in writing, In advance to the first order.
(b) At the time of signing this Agreement, it is agreed by both parties that certain functions, features, tasks, or work-time may be requested by COMPANY from Magpie, beyond that which is defined in Appendix 2. The parties have agreed to the following procedure for defining and agreeing on such extra work:
Step 1: At any time during the project, COMPANY may request new functionality, feature adjustments or work-tasks to Magpie by email, phone or at meetings. Magpie will collect, document and estimate any such extra work requests.
Step 2: Magpie will send a written summary to COMPANY, detailing the accumulated extra work requests, and the time estimates, price per lead and consequences.
Step 3: The parties will discuss and negotiate in good faith the extra lead generation requests and estimates. COMPANY will decide on either accepting purchase of the extra work, or not to purchase such extra work. The decisions made by COMPANY, and the resulting agreements about price and/or changes to Milestone dates will be documented and communicated in writing from Magpie to COMPANY.
Step 4: Magpie will send a copy of the Decision Log to COMPANY, requesting confirmation on the agreed extra lead generation order. COMPANY will either (a) send back an email confirming the agreement, or (b) send an email with non-confirmation.
Step 5: Only when COMPANY has confirmed extra work will Magpie initiate performing such work.
(c) COMPANY understands and accepts that additional time spent on extra work confirmed by COMPANY could require delivery dates for Milestones to be changed.
6. Fees, Royalties, Expenses & Payments
(a) COMPANY shall pay the total owed inside the attached Lead Generation Order (The LGO) Including VAT in the form of Milestone payments according to the milestone- and payment- schedule listed in Appendix 1 and 2.
(b) Any Milestone payment(s) for Milestone(s) made by COMPANY to Magpie in accordance with Appendix 1 shall be due and payable immediately following COMPANY’s issuance of Notice of Approval and receipt of invoice from Magpie.
(c) It is agreed by the parties that Magpie will issue a separate invoice for any extra man-hours or extra lead generation orders and confirmed by COMPANY (according to section 5). Invoices for extra work will be issued immediately upon Magpie receiving approval of such extra work from COMPANY. Agreements about extra work and invoicing for such, will not modify, increase or decrease the Milestone Payments in any way.
(d) Payments from COMPANY to Magpie must be made by bank wire to a bank account in England as specified by Magpie on the invoice(s). COMPANY will not extend or delay payments unreasonably. The cost of wire transfers will be borne by both parties.
(a) COMPANY agrees that Magpie may reference COMPANY’s name, display screenshots of the website created and may disclose that COMPANY is a customer of Magpie on Magpie ‘s Web site. This includes being listed as a Client on http://www.emailmagpie.com and displaying COMPANY’s logo with links along with quotes.
8. Confidential Information
(a) The parties to this Agreement recognize that, in connection with the performance of this Agreement, each of them may disclose to the other information about the disclosing party’s business or activities which the disclosing party considers proprietary and confidential. All of such proprietary and confidential information of the disclosing party (which shall include, without limitation, all business, financial and technical information of a party, identities of customers, clients or licensees, proprietary software code and any other information whether oral or written which is not generally known or available to the public) is hereinafter referred to as “Confidential Information”.
(b) The party who receives any Confidential Information agrees to maintain the confidential status for such Confidential Information, not to use any such Confidential Information for any purpose other than the purpose for which it was originally disclosed to the receiving party, and not to disclose any of such Confidential Information to any third party (except as provided in this Agreement).
9. Representations and Warranties
(a) Each of COMPANY and Magpie represents and warrants that it has obtained all rights, licenses and authorizations necessary to enter into this Agreement and necessary to grant the rights, licenses and authorizations granted herein. Each of COMPANY and Magpie represents and warrants that the execution and performance of this Agreement does not and will not violate or interfere with any other agreement to which it is a party. Magpie represents and warrants that the software engine, technology, source code and related development tools for the Product is or will be original to Magpie and/or exclusively owned or duly licensed by Magpie and that the software, technology, source code and related development tools are not, nor will they be, in violation of the rights of any other company. COMPANY represents and warrants that no part of the Product or the exercise of the rights granted hereunder, including online publishing or marketing of the Product, violates or infringes upon any rights of any company, including copyrights, trademark rights, patent rights, or contractual, common law or statutory rights save that COMPANY gives no representation of warranty in respect of the software engine, technology, source code and related development tools for the Product. If the title or material of the released version of the Product and/or the marketing hereof is not a title or material originating from Magpie, or the equivalent of this original title or material in any other language, COMPANY bears full responsibility for all matters concerning intellectual property and other rights, and hereby holds Magpie fully harmless.
(b) Each of COMPANY and Magpie represents and warrants that (i) it is duly organized and in good standing under the laws of the jurisdiction of its incorporation or existence; (ii) it has (and shall at all times remain possessed of) the full right, power and authority to enter into and perform this Agreement; (iii)it is not presently the subject of a voluntary or involuntary petition in bankruptcy, does not presently contemplate filing any such voluntary petition, and is not aware of any intention on the part of any other person or company to file such an involuntary petition against it; and (iv) the person(s) executing this Agreement on its behalf has the actual authority to bind it to this Agreement.
(c) Each of COMPANY and Magpie represents and warrants that (i) it is under no disability, restriction or prohibition, whether contractual or otherwise with respect to its rights to execute and perform this Agreement; (ii) the agreement of any person who is not a party to this Agreement is not necessary or required for it to carry out its obligations hereunder; (iii) during the Term of this Agreement, it will not enter into any agreement or make any commitments which would interfere with the grant of rights hereunder or its performance of any of the terms and provisions hereto; and (iv) it has not, nor will it, sell, assign, lease, license or in any other way dispose of or encumber the rights granted hereunder.
(a) In no event will Magpie, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Magpie under this agreement during the twelve (12) month period prior to the cause of action. Magpie shall have no liability for any failure or delay due to matters beyond or not within their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
(b) You agree to indemnify and hold harmless Magpie, its contractors, its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Services, including but not limited to your violation of this Agreement.
(c) You expressly understand and agree that Magpie shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to: damages for loss of profits, goodwill, use, data or other intangible losses (even if Magpie has been advised of the possibility of such damages), resulting from your use of the emails and URL’s provided by Magpie.
11. Terms and Termination
(a) The term of this Agreement shall commence on the date signed in the attached LGO and continue in effect thereafter (the “Term”).
(b) In the event of a material breach of this Agreement by a party and if such material breach is not cured by such party within thirty (30) days of written notice (the “Cure Period”), the notifying, non-breaching party shall have the right to terminate this Agreement. Nothing contained herein shall in any way limit such notifying, non-breaching party’s other rights and remedies under this Agreement or at law or equity.
(c) In the event that either party is subject to a voluntary or involuntary filing for protection under international bankruptcy laws, the non-filing Party agrees not to attempt to reject, rescind or terminate this Agreement or any of its respective obligations hereunder.
(d) Upon COMPANY’s third issuing of a Notice of Non-Approval for the same by Magpie twice resubmitted Milestone Deliverable, COMPANY may elect to terminate this Agreement with immediate effect. In the event of such termination under this section 12d, COMPANY’s only obligation will be to pay Magpie for any and all Milestone(s) completed and approved and/or other fees approved by COMPANY prior to termination.
(e) COMPANY may terminate this Agreement at any time prior to Magpie delivery of the last Milestone according to Appendix 1, by providing Magpie with written notice of such termination. In the event of such termination, COMPANY’s obligations will be to pay the full amount of the Milestone currently being completed (upon the Milestone’s completion), provided, however, if COMPANY has given written Notice of Approval of a Milestone as set forth herein, then COMPANY shall honour its payment obligations as per that Milestone and in addition shall pay Magpie the pro-rated amount for the then current Milestone(example: if COMPANY has approved the Milestone Deliverables for Milestone 2 and Magpie is ten (10)days into the work for Milestone 3 and COMPANY elects to terminate this Agreement pursuant to this Section12e, then COMPANY shall pay Magpie the instalment of the Milestone Fee for Milestone 2 and the prorated instalment of the Milestone Fee for Milestone 3).
(f) In the event of COMPANY terminating this Agreement prior to Magpie’s delivery of the last Milestone according to Appendix 1, COMPANY will, in addition to its other obligations, remain obligated to pay Royalties to Magpie. In the event of such termination, COMPANY’s obligations will be to pay the full amount of the Milestone currently being completed (upon the Milestone’s completion).
(g) Termination of this Agreement by COMPANY, subsequent to COMPANY having given Notice of Approval for all Milestones listed in Appendix 1, will not exempt COMPANY from obligations to pay full Royalty to Magpie.
12. EXEMPTIONS FROM LIABILITY
The COMPANY must understand that the studies and reports issued by Magpie were obtained from automated analysis of other databases and other information that is circulating in the network, on platforms or extracted from what is known as Big Data. In virtue of, DATOPSHERA does not control the relevance, veracity or accuracy of the entirety of the data extracted so that, in no case, is it liable for information that is not accurate, truthful, current or any information derivative of an error from the source from which such information was extracted from.
Thus, in an expository and non exhaustive manner, Magpie is not be liable under no circumstance in the event of:
Errors or confusion related to names, data or information from failed pages or original sources from which they were extracted. Lack of detailed information on specific a sector if you can prove that on the sector there is significant lack of information on the Internet. Misuse or abuse by the COMPANY of information obtained from our services, as well as their misinterpretations of it. Damage or injury that occurred as a result of the use of information extracted from our services.
Our services are used to obtain more details and information on sectors that may be of interest to the COMPANY. If COMPANY is not used to the interpretation of the results obtained, we recommended they contact a counselor who can guide them through it. Under no circumstance, if any, shall Magpie be responsible for the interpretation that the COMPANY or any Advisor give the information obtained from our website or as a result of our studies.
13. General Provisions
(a) Disagreements over the details of this agreement shall be attempted resolved amicably. Failing that, disagreements shall be resolved in a court within England and Wales.
(b) Relationship of parties: Magpie shall be deemed to have the status of independent contractor to COMPANY, and nothing in this agreement shall be deemed to place the parties in the relationship of employer-employee, principal-agent, partners or joint ventures. Magpie is responsible for all payments to its subcontractors and Magpie is responsible for subcontractor’s work as if it was performed by Magpie itself.
(c) No supplement, modification, amendment, addendum, waiver, termination or discharge of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
(d) This Agreement constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the subject matter hereof.
(e) Force Majeure: Neither party shall be deemed in default of the agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies or any other cause beyond the control of such party (“Force Majeure”) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay.
(f) Partial Invalidity: Should any provision of this Agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect as though such provisions were deleted.
EmailMagpie.com is a trading name of GamerDating Ltd