Definitions – In these Terms of Business, unless the context otherwise requires:
“Agreement” means these Terms and Conditions together with the email marketing services agreement (and any associated Schedule) to which they are attached.
“Agreement Term” has the meaning given above.
“The Company” means OneFlow Marketing Ltd, registered in England under company number 15875072 at 4 Cedar Court, Tiverton Business Park, Tiverton, Devon, EX16 6GT.
“Clarification of Agreement Term”: For the purposes of this Agreement, 1 month is defined as 4 weeks or 28 days.
“Customer Marketing Data” means Marketing Data provided by The Customer or procured by The Company on behalf of The Customer, including any subsequent enrichment of such Marketing Data by or on behalf of The Company.
“Data Protection Legislation” means each and all: (i) the Data Protection Act 2018; (ii) the “UK GDPR” as that term is defined in the Data Protection Act 2018; and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003, in each case as amended, re-enacted, or replaced from time to time.
“Effective Date” has the meaning given above.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Marketing Data” means information comprising, but not limited to, a combination of company name, contact name, business telephone number, business address, business email address, and other attributes relating to the business and/or to the contact in their professional capacity. Not all Marketing Data will
contain all fields of information.
“Email Marketing” means the sending of emails by The Company on behalf of The Customer.
“The Services” means the Monthly Lead Generation Activity set out in the Schedule that may include Email Marketing.
“Commencement Date” means the agreed date from which The Services will be provided as agreed and commencing no later than thirty (30) days after the date of signature of this agreement.
“Confidential Information” means all secret or confidential commercial, financial, and technical information, trade secrets, computer software, and other information in whatever form or medium and whether disclosed orally or in writing, together with all reproductions in whatsoever form or medium and any part or parts of it.
“Force Majeure” means any event outside the reasonable control of either party affecting its ability to perform any of its obligations (other than as to payment) under these Terms and Conditions.
“Lead” refers to an individual who has actively and positively engaged with the email marketing campaign, expressing interest in the products or services. This may include submitting a query, requesting additional information, or providing their contact details for follow-up and further engagement.
“Insolvency Event” means any notice, petition, resolution, or order relating to the winding up or dissolution, administration, or bankruptcy being presented or made or any steps being taken with a view to a voluntary arrangement or other assignment or arrangement with any creditors or any moratorium, readjustment, rescheduling, forgiveness, or deferral of all or any indebtedness, or if the other party has reasonable grounds for believing that any of the foregoing is imminent. If any of the foregoing occurs in relation to a partner in any of the parties hereto, it will be deemed to occur in relation to that party.
“Schedule” or “Schedule of Services” means the schedule or other commercial ordering document referring to these Terms and Conditions or to which these Terms and Conditions may be attached, and any subsequent written modification thereof.
“Agreement Term” – For the purposes of this Agreement, 1 month is defined as 28 days.
Agreement
1.1. With effect from the Effective Date, the Company agrees to provide the Services to The Customer, and The Customer agrees to pay the fees set out in the Schedule of Services for the Agreement Term. The Agreement will automatically renew for successive terms of equal duration unless either party provides written notice of termination in accordance with Clause 1.2.
1.2. Either party may terminate this Agreement by providing written notice via email as follows: The Customer must send notice to hello@oneflowmarketing.com, and the Company must send notice to the Customer’s registered email address. Notice periods are as follows: 7 days’ notice for Agreements of one month, or 30 days’ notice for Agreements of two months or more.
1.3. Failure by the Customer to provide notice in accordance with Clause 1.2. will result in the Agreement automatically renewing for the subsequent term. This includes any cases where the Customer has waived the right to a refund.
1.4. Upon providing termination notice, Services will continue until the end of that month’s campaign, and all fees for that period will remain due.
1.5. All notices related to auto-renewal or termination of the Agreement must be provided in writing via email.
Marketing Data
2.1. When sourcing Marketing Data for The Customer, The Company will use reasonable endeavours in order to identify good quality data from a variety of sources, including but not limited to data brokers, LinkedIn, and any other data available in the public domain.
2.2. The Company will provide the volume of Marketing Data up to the number of records specified in The Schedule of Services, capped to the volume of available data that comprises The Customer’s target market, which may be lower than the volume of Marketing Data listed in The Schedule of Services.
2.3. The Company uses all reasonable endeavours to ensure that Marketing Data is accurate and current. However, as Marketing Data is compiled from various sources The Company cannot be held responsible for the quality of data purchased as an agent of The Customer.
2.4. Where The Customer provides Marketing Data to The Company for use to perform The Services, it warrants it has authority to use such data for the purposes of The Services.
2.5. The actual demographic targeted for the Email Marketing campaign may vary depending on the size and availability of the target demographic data at the time of the campaign. The Company will use reasonable endeavours to align the targeting with The Customer’s specified requirements; however, adjustments may be necessary based on data availability, quality, or the constraints of the selected target audience.
Payment terms
3.1. The Company will invoice the setup fee, 50% of the total email marketing fee for the entire Agreement, and any other applicable fees upfront upon execution by all parties. This invoice must be paid in full within 3 (three) working days of issuance. The remaining 50% of the email marketing fee is payable 30 (thirty) days thereafter. All fees mentioned in this Agreement are exclusive of VAT. Where applicable, VAT will be charged in addition at the prevailing rate.
3.2. Should any invoices remain outstanding during the provision of The Services, The Company reserves the right to pause the sending of any emails and withhold any Leads, reports, data, or other information generated until all outstanding invoices are settled in full. The Company is under no obligation to resume Services or release withheld information until all such payments have been received.
3.3. Any costs incurred in recovering overdue payments will be recharged to The Customer at a rate of £100 per solicitor letter and £500 for any court applications, or such greater costs as are incurred.
3.4. The parties agree that The Company has invested significant time and effort and incurred costs to prepare for the delivery of the Services and that, following execution of this Agreement by all parties, any purported termination in breach of these Terms and Conditions and/or any failure to pay the total amount of the fees set out in the Schedule of Services, in whole or in part, whether prior to, during or after the commencement of the provision of the Services, shall cause losses to The Company in the amount of the sum of all fees set out in the Schedule of Services less any amounts already paid to The Company (“Losses”). The parties agree that such Losses shall be payable by The Customer to the Company as liquidated damages and that such Losses represent a genuine pre-estimate of loss and are not intended as a penalty.
3.5. The Customer acknowledges that their payment obligations under this Agreement are not contingent upon the achievement of the guaranteed minimum number of Leads specified in Clause 10. The remedies outlined in Clause 10 constitute the sole recourse for any shortfall in Lead delivery.
3.6. For any subsequent invoices issued under this Agreement, payment must be made at least thirty (30) days prior to the start of the respective email marketing month. This requirement is due to the preparatory work conducted by The Company throughout the preceding month to ensure the success of the upcoming email marketing campaign.
3.7. The Company’s email marketing services, including the hosting of email servers, are provided on a monthly basis. If The Customer delays payment, the campaign will be paused, and any time lost due to delayed payments will be deducted from the overall campaign duration. If payment is not made in time for the scheduled campaign launch, the launch will be delayed, and the campaign will not begin until full payment is received. The Customer acknowledges that failure to make timely payments will result in a loss of service time, including any delay in the launch, and such lost time cannot be recovered or extended beyond the original agreement term.
Non-Solicitation
4.1. The Customer shall not, during the Agreement Term and for a period of 12 months thereafter, in any way solicit or attempt to solicit any supplier, client or customer of The Company or any employee to leave the employment of The Company.
Confidentiality
5.1. Each party agrees to keep secret any Confidential Information concerning the other party’s affairs which has come to the knowledge of that party because of or in connection with the Services. For the avoidance of doubt, the details of names, addresses, telephone numbers, or other information relating to third-party companies or their employees where this information is collected or obtained during the provision of The Services does not constitute Confidential Information.
Force Majeure
6.1. The Company shall not be liable in any way for any delay or failure or for the consequences of any delay or failure, in performing any of its obligations under this Agreement if such delay or failure is due to any cause whatsoever beyond the reasonable control of The Company including without limitation acts of God, flood, drought, earthquake, or other natural disasters, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, nuclear, chemical or biological contamination, any law or government order, rule, regulation or direction, or any action taken by a government or public authority, collapse of buildings, fire, explosion or accident; any labour or trade dispute, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors; and interruption or failure of utility service. The Company shall promptly notify The Customer of the Force Majeure event and its expected duration. The Company shall use reasonable efforts to mitigate the effects of the Force Majeure event and resume performance as soon as reasonably possible.
Company Liability
7.1. Except to the extent constituting wilful misconduct or fraud, The Company will not be liable to The Customer in contract, tort (including without limitation negligence) and/or breach of duty for any loss (including loss of profits or any indirect or consequential loss of any kind) or damage which The Customer may suffer by reason of any act, omission, neglect, or default (including negligence) in the performance of these conditions by The Company, its representatives, servants, or agents. To the extent permitted by law and without prejudice to the foregoing sentence, in no event shall the liability of The Company exceed the amount of fees actually paid to it under this Agreement.
Customer Promises
8.1. The Customer warrants that it is contracting as principal and not as an agent and that it is entitled to deal with the materials which it provides to The Company to perform the Services in accordance with this Agreement.
8.2 The Customer shall indemnify, defend, and hold harmless The Company, its officers, directors, employees, and agents from and against any and all claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any claim that the Company’s receipt or use of any materials referred to in clause 8.1 or of the Customer Marketing Data infringes or violates any third-party rights.
Data Protection
9.1. The Parties acknowledge that for the purposes of the Data Protection Legislation, The Customer will act as Data Controller and The Company will act as Data Processor. The Company is authorised to undertake the data processing necessary to provide the services outlined in the Schedule and those agreed between the parties from time to time.
9.2. The Company will comply with all applicable Data Protection Legislation as it applies from time to time.
9.3. The Company will process Personal Data only in accordance with the schedule or the provision of services agreed between the parties from time to time unless it is required to do otherwise by Law.
9.4. The Company will take reasonable steps to ensure that it has in place protective measures to protect against data loss, taking into account the nature of the data to be protected, harm that might result from any data loss, and the cost of implementing protective measures.
9.5. The Company will take all reasonable steps to ensure the reliability and integrity of any Company personnel who have access to personal data and limit access to personal data only to those for whom it is necessary for the provision of the Services.
9.6. The Data Controller remains responsible for undertaking any required Data Protection Impact Assessment. The Company shall provide any reasonable assistance to The Customer in undertaking any Data Protection Impact Assessment.
9.7. The Company will notify The Customer as soon as reasonably practical if they become aware of a Data Loss Event or any communication from the Information Commissioner’s Office in respect of the Personal Data processed under this Agreement or any complaint in respect of either party’s obligations under the Data Protection Regulations.
9.8 The Customer shall obtain all necessary consents and permissions required for The Company to process the Customer Marketing Data and any other Personal Data and perform the Services in accordance with applicable laws and regulations.
Lead Guarantees
10.1. The Company guarantees the following minimum number of Leads based on the selected email marketing package:
10.2. If the guaranteed minimum number of Leads is not achieved by the end of the email marketing month, The Company will provide The Customer with a full money-back guarantee for that respective month.
10.3. The guarantee of Leads is conditional upon The Customer’s full compliance with all applicable laws, regulations, and industry best practices concerning email marketing and data privacy.
10.4. In order to request a refund under the lead guarantee, The Customer must provide at least 7 (seven) days’ written notice prior to the end of that month’s email marketing campaign by email to hello@oneflowmarketing.com. Failure to provide this notice within the specified time frame shall result in The Customer waiving their right to a refund.
Email Volume Clause
11.1 The Company will send the specified minimum number of prospect emails per month according to the selected package, contingent upon the target demographic data set being sufficiently large to support sending 3-4 emails per prospect. If the data set is smaller, the number of emails sent will be adjusted accordingly to ensure compliance with this email frequency:
11.2. The Customer acknowledges that the email marketing services provided by The Company involve the use of email servers. While The Company employs reasonable measures to ensure the successful delivery of emails in accordance with the agreed terms, it is not technically feasible to provide conclusive evidence of individual email transmissions. However, The Company guarantees that at least the minimum specified volume of emails, as outlined in the Schedule of Services, will be sent during the campaign period. The Customer agrees that reporting and analytics provided by The Company constitute sufficient documentation of campaign activity.
Intellectual Property
12.1. All Intellectual Property Rights created by The Company in the course of providing the Services shall remain the exclusive property of The Company. The Customer is granted a non-exclusive, non-transferable licence to use such Intellectual Property Rights solely for the purpose of receiving and using the Services during the term of this Agreement.
12.2. Nothing in this Agreement shall be construed as transferring ownership of any Intellectual Property Rights from The Company to The Customer, including the data provided by The Company to The Customer as part of the Services. The Company shall retain all Intellectual Property Rights in the data provided to The Customer.
12.3. The Customer is granted a limited licence to use the data provided by The Company solely for the purpose of utilising the Services. The Customer shall not modify, distribute, or use the data for any other purpose without the prior written consent of The Company, and such usage shall remain subject to the provisions of this Agreement and applicable laws.
Term and Termination
13.1. This Agreement shall become effective as of the date on which it has been executed by all parties hereto and shall continue until the earlier of (i) the date of completion of provision of the Services set out in the Schedule of Services, (ii) its early termination in accordance with clause 13.2 and (iii) the mutual written consent of the parties.
13.2. Without prejudice to any accrued rights, if The Customer shall at any time fail to comply with the payment terms or any other obligation which is material under this Agreement, or if The Customer experiences any Insolvency Event, The Company may suspend or terminate this Agreement with immediate effect by notice in writing to The Customer.
General
14.1. This Agreement constitutes the entire agreement between the parties and supersede all prior agreements, understandings, or discussions between the parties.
14.2. This Agreement and all non-contractual rights and obligations arising out of or in connection with it will in all respects be governed by and construed in accordance with the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England.
14.3. The headings in this Agreement are for convenience only and will not affect its interpretation.
14.4. This Agreement is personal to the parties, and The Customer will not assign or transfer its rights and liabilities hereunder or any of them, or sub-contract or otherwise delegate any of its obligations without the prior written consent of The Company.
14.5. This Agreement will not be taken as creating or evidencing any agency or partnership between the parties.
14.6. The holding of any provision of this Agreement to be invalid or unenforceable by a court of competent jurisdiction shall not affect any other provision of this Agreement, which shall remain in full force and effect. If any provision of this Agreement shall be declared by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced in whole or in part, such provision shall be interpreted so as to remain enforceable to the maximum extent permissible consistent with applicable law and the remaining conditions and provisions or portions thereof shall nevertheless remain in full force and effect and enforceable to the extent they are valid, legal and enforceable, and no provisions shall be deemed dependent upon any other covenant or provision unless so expressed herein.
14.7. The rights and remedies of either party will not be diminished, waived, or extinguished by the granting of any indulgences, forbearance or extension of time granted by neither such party to the other nor any failure of or delays by the said party in ascertaining or exercising any such rights or remedies.
14.8. All notices under this Agreement will be in writing and may be served by email or first-class post addressed to the other party at the address or email address given in these conditions or at such other address or email address as a party will from time to time by notice in writing give to the other party. Every such notice will be deemed to have been served if served by email upon despatch of such email and if by first-class post at the expiration of 2 Business Days after despatch of the same.
14.9. For the avoidance of doubt, nothing in this Agreement will confer on any third party any benefit or the right to enforce any provision of these conditions under The Contracts (Rights of Third Parties) Act 1999.
14.10 This Agreement shall not be amended, modified or varied other than by mutual written agreement of the parties.
Leading B2B Email Marketing Agency
OneFLow Marketing Limited is registered in England and Wales under company number 15875072.
Our registered office address is 4 Cedar Court, Tiverton Business Park, Tiverton, Devon, EX16 6GT, United Kingdom
