Online Digital Tribute Card

Any material breach of the terms of this Seller Agreement – which you are obliged to uphold at all times – will result in the suspension of your Seller account pending an internal review.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement.

• Business Day:a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Retail Profit:has the meaning given to it in clause 4.2.
• Company:Your Loving Memory Ltd incorporated and registered in England and Wales with company number 14111561 whose registered office is at 18 Raphael Close Shenley Herts WD7 9JG.
• Confidential Information:information that is proprietary or confidential and is either clearly labelled as such or otherwise identified as Confidential Information.
• Control:the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
• Intellectual Property Rights:patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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:when a prospective client has visited the Sellers Company’s website or Your Loving Memory Ltd website and spoken with the customer service team. Introduce, Introduces, and Introduced shall be interpreted accordingly.
• Net Income:the payments made to the Company for the Product under a Relevant Contract less any value added tax or other sales tax on them and any discounts or rebates granted by the Company.
• Online Card:each online tribute card relating to an individual which is generated as part of the Product.
• Product:Your Loving Memory Ltd product in partnership with the Go Paperless service for the creation and sharing of Online Digital Cards, which are provided through the at Your Loving Memory Ltd website and/or application.
• Relevant Contract:a contract for the supply of the Product entered into during the term of this agreement between the Company and a prospective client who was Introduced by the Seller and who entered into the contract to purchase the Product from the Company from the Company’s website or customer success team.
• Seller:the entity being appointed as a Seller of the Product pursuant to the terms of this agreement.
• Trade Marks:the trade mark registrations and applications of which the Company is proprietor together with any further trade marks which the Company may permit or procure permission for the Seller by express notice in writing to use in respect of the Product.

1.2

Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4

A reference to a company shall include any Company, corporation or other body corporate, wherever and however incorporated or established.

1.5

Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6

You Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7

A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.8

A reference to writing or written includes e-mail.

1.9

References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.

2. Appointment

2.1

The Company hereby appoints the Seller, on a non-exclusive basis, to promote the Product to prospective clients and to introduce such prospective clients to the Company in the Territory on the terms of this agreement.

2.2

During the term of this agreement, the Seller undertakes not to:

2.2.a

distribute, re-sell, promote, create or install any products which compete with the Product; or

2.2.b

distribute the Product other than as set out in the terms of this agreement.

2.3

The Seller shall have no authority, and shall not hold itself out, or permit any person to hold itself out, or otherwise create the impression that it is authorised to bind the Company in any way, and shall not do any act which might reasonably create the impression that the Seller is so authorised.

2.4

The Seller shall not make or enter into any contracts or commitments or incur any liability for or on behalf of the Company, including for the provision of the Product, and shall not negotiate any terms for the provision of the Product with prospective clients.

2.5

The Seller shall be entitled to describe itself as an "Seller" of the Product but shall not represent itself as an agent of the Company for any purpose, nor pledge the Company's credit or give any condition or warranty or make any representation on the Company's behalf or commit the Company to any contracts.

2.6

The Seller shall not without the Company's prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Product which are inconsistent with those contained in the promotional material supplied by the Company or otherwise incur any liability on behalf of the Company howsoever arising.

2.7

The Seller shall not sell the Product through a sales agent or to a sub-distributor or re-seller.

2.8

The Company shall be under no obligation to:

2.8.a

follow up any introduction or referral made by the Seller; or

2.8.b

enter into a Relevant Contract.

2.9

The Seller's appointment under this clause 2. only grants to the Seller a licence to promote the Product to prospective clients and to introduce such prospective clients to the Company’s Product, and does not transfer any right, title or interest to any such Product to the Seller or its customers. Use of the terms "sell", "license", "purchase", "licence fees" and "price" will be interpreted in accordance with this clause.

2.10

The Company shall provide such information and support as may be reasonably requested by the Seller to enable it properly and efficiently to discharge its duties under this agreement

3. Seller's undertakings

3.1

The Seller undertakes and agrees with the Company to:

3.1.a

use all reasonable endeavours to promote the distribution and sale of the Product using their Seller Sample Online Tribute Card and other promotional and marketing material sanctioned by the Company;

3.1.b

use the Product and their Seller Sample Online Tribute Card solely in accordance with the instructions supplied by the Company from time to time in writing and subject to any testing requirements that the Company may reasonably impose;

3.1.c

serve the Company faithfully and diligently and not allow its interests to conflict with its duties under this agreement;

3.1.d

comply with all reasonable and lawful instructions of the Company;

3.1.e

inform the Company immediately of any changes in ownership or Control of the Seller and of any change in its organisation or method of doing business which might affect the performance of the Seller's duties in this agreement; and

3.1.f

not produce any marketing material for the Product or use the Company’s name, logo or trade marks on any marketing material for the Product without the prior written consent of the Company.

3.2

It is a condition to this agreement that the Seller shall purchase a minimum volume of Online Digital Tribute Cards from the Company on an annual basis; to be agreed at the time of committing to this agreement and reviewed on renewal.

3.3

The Seller shall be entitled to purchase a volume of Online Cards at a discounted rate on the Digital Online Tribute Card rates available direct from the Company, such discounted rate shall be agreed at the time of entering into this agreement and remain as standard discounted rates from time to time in force.

4. Retail Profit

4.1

The Seller shall be entitled to a Retail Profit if a prospective client Introduced by the Seller enters into a Relevant Contract.

4.2

The amount of Retail Profit payable shall be at the Seller’s discretion; but not to exceed market tolerance:

4.2.a

where the purchase is made through the Sellers process (which will normally be the case where one card is purchased), 25% to 100%; or

4.2.b

where the purchase is made through Your Loving Memory Ltd customer success team (which will normally be the case where a prospective client cannot locate a Seller, or the service is not available from the organisation providing their arrangements), the Company retains all Retail Profit.

4.3

If the Company receives payment under any Relevant Contract in instalments, then the Seller maybe subject to interest, which shall be calculated and paid on such instalments as they are received by the Company.

4.4

The Company shall be entitled to increase the wholesale rates at any time after the date falling 12 months after the date of this agreement by giving written notice of such increase to the Seller.

4.5

Where a prospective client is Introduced by the Seller and enters into a Relevant Contract, and that prospective client then Introduces a third party to the Company who then enters into a Relevant Contract, the Seller shall, by virtue of such initial Introduction, be deemed to have Introduced the third party to the Company however shall not be entitled to any payable introduction or finder’s fee.

4.6

The Company have no entitlement to the Retail Profit of the Seller.

4.7

The Company shall not grant the Seller access to any online administrator panel via the Product, which remains the intellectual property (clause 6) of the Company.

4.8

All sums payable under this agreement are exclusive of any applicable value added tax or other applicable sales tax, which shall be added to the sum in question if it is applicable.

4.9

Any and all expenses, costs and charges incurred by the Seller in the performance of its obligations under this agreement shall be paid by the Seller unless the Company has expressly agreed beforehand in writing to pay such expenses, costs and charges.

4.10

This agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Seller shall be fully responsible for and shall indemnify the Company for and in respect of all filings and payments in relation to its own tax liabilities relating to any Commission paid or payable, including corporation tax, income tax, National Insurance and any other liability, deduction, contribution, assessment or claim arising from or made in connection with this agreement.

5. Advertising and promotion

The Seller shall:

5.a

be responsible for the advertising and promotion of the Product provided that the use of any advertising materials and promotional literature containing the Trade Marks or other references to the Product shall be subject to the prior written consent of the Company;

5.b

observe all directions and instructions given to it by the Company in relation to the promotion and advertisement of the Product to the extent that such promotions or advertisements refer to the Product or otherwise use the Trade Marks, and shall not make any written statement as to the quality or manufacture of the Product without the prior written approval of the Company;

5.c

conduct its business in a manner that reflects favourably at all times on the Company and the good name, goodwill and reputation of the Company and not enter into any contract or engage in any practice that is or may be detrimental to the interests of the Company in the Product; and

5.d

avoid deceptive, misleading or unethical practices that are, or might be, detrimental to the Company, the Product or the public and shall not publish or employ, or co-operate in the publication or employment of, any false, misleading or deceptive advertising material or other representations with regard to the Company or the Product.

6. Intellectual Property Rights

6.1

Unless otherwise agreed between the parties, all Intellectual Property Rights in and to the Product belong, and shall belong, to the Company and/or its licensors.

6.2

Without prejudice to the right of the Seller or any third party to challenge the validity of any Intellectual Property Rights of the Company, the Seller shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of the Company and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

6.3

The Company makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Product or the Trade Marks, nor as to whether the same infringe on any Intellectual Property Rights of third parties.

6.4

The Company grants to the Seller a non-exclusive, revocable, personal licence (subject to the terms and conditions of this agreement and during its term and solely for the purposes of performing the Seller’s obligations under this agreement) to use the Trade Marks on or in relation to the Product for the purpose of the promotion, advertisement and sale of the Product.

6.5

The Seller shall not:

6.5.a

copy the Product or any part of any of them except to the extent and for the purposes expressly permitted by this agreement;

6.5.b

modify, adapt, develop, create any derivative work, reverse engineer, decompile, disassemble or carry out any act otherwise restricted by copyright or other Intellectual Property Rights in the Product.

6.6

The Seller shall not:

6.6.a

use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Company therein;

6.6.b

use in relation to the Product any trade marks other than the Trade Marks without obtaining the prior written consent of the Company; or

6.6.c

use any trade marks or trade names so resembling any trade mark or trade names of the Company as to be likely to cause confusion or deception.

6.7

Other than the licences expressly granted under this agreement, neither party grants any licence of, right in or makes any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in this agreement, the Reseller shall have no rights in respect of any trade names or trade marks used by the Company in relation to the Product or their associated goodwill, and the Seller hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, the Company.

6.8

The Seller shall promptly give notice in writing to Company in the event that it becomes aware of any infringement or suspected infringement of the Trade Marks or any other Intellectual Property Rights in or relating to the Product.

7. Confidentiality

7.1

Each party may have access to Confidential Information of the other party under this agreement. A party's Confidential Information shall not include information that:

7.1.a

is or becomes publicly known through no act or omission of the receiving party; or

7.1.b

was in the other party's lawful possession prior to the disclosure; or

7.1.c

is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

7.1.d

is independently developed by the receiving party, which independent development can be shown by written evidence.

7.2

Subject to clause 7.4, each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this agreement.

7.3

Each party agrees to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

7.4

A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 7.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

7.5

This clause 7. shall survive termination of this agreement for any reason for a period of no longer the 12months.

8. Warranties

8.1

Each party represents, warrants and undertakes that:

8.1.a

it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and

8.1.b

without affecting its other obligations under this agreement, it shall comply with all applicable Legislation (being any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party) in the performance of its obligations under this agreement.

9. Limitation of liability

9.1

Except as expressly and specifically provided in this agreement, all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this agreement.

9.2

Nothing in this agreement excludes the liability of the Company:

9.2.a

for death or personal injury caused by the Company's negligence; or

9.2.b

for fraud or fraudulent misrepresentation.

9.3

Subject to clause 9.2, in relation to the Seller, the Company shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:

9.3.a

loss of profits; or

9.3.b

loss of business; or

9.3.c

depletion of goodwill or similar losses; or

9.3.d

loss of anticipated savings; or

9.3.e

loss of goods; or

9.3.f

loss of use; or

9.3.g

any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

9.4

The total liability of the Company to the Seller in respect of all other loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty.

10. Term and termination

10.1

This agreement shall commence on the date on which it is agreed by the Seller. Unless terminated earlier in accordance with this clause, this agreement shall continue for an initial period of 12 months (Initial Term) and shall automatically extend for 12-monthly periods (Extended Term) at the end of the Initial Term and at the end of each Extended Term, subject to clause 10.2 below. Either party may give written notice to the other party, not later than 30 days before the end of the Initial Term or the relevant Extended Term, to terminate this agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.

10.2

The commencement and renewal of this agreement shall be conditional on the Seller maintaining a minimum purchase of Online Cards in accordance with clause 3.2. If the Seller does not maintain and renew such agreed volume purchases, at the end of the Initial Term and any Extended Term, this agreement shall immediately terminate.

10.3

Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

10.3.a

the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or

10.3.b

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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

10.3.c

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; or

10.3.d

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 that other party; or

10.3.e

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, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or

10.3.f

the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or

10.3.g

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; or

10.3.h

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 the other party's assets and such attachment or process is not discharged within 14 days; or

10.3.i

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(a) to clause 10.2(h) (inclusive); or

10.3.j

the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

10.4

Without prejudice to any other rights or remedies to which the Company may be entitled, the Company may terminate the agreement without liability to the Seller if:

10.4.a

at any time, the Seller does not maintain a fully-paid up and used the volume allocation of Online Cards;

10.4.b

there is a change of control of the Seller; or

10.4.c

the Seller purports to assign any of its rights or obligations under this agreement.

11. Effects of termination

11.1

Upon termination or expiry of this agreement for any reason all rights and licences of the Seller under this agreement shall terminate.

11.2

The termination of this agreement shall not of itself give rise to any liability on the part of the Company to pay any compensation to the Seller for loss of profits or goodwill, to reimburse the Seller for any costs relating to or resulting from such termination, or for any other loss or damage.

12. Force majeure

Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Seller or any other party), failure of a utility service or transport or telecommunications 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 suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days' written notice to the other party.

13. General

13.1

Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.

13.2

Severance.

13.2.a

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

13.2.b

If any provision or part-provision of this agreement is deemed deleted under clause 13.2(a) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.3

Entire agreement.

13.3.a

This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

13.3.b

Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.

13.3.c

Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

13.4

Variation. No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

13.5

Assignment.

13.5.a

The Seller shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

13.5.b

The Company may, provided that it gives the Seller notice of such dealing, at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

13.6

No partnership or agency.

13.6.a

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party except as expressly provided in clause 2.

13.6.b

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

13.7

Third party rights. No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

13.8

Rights and remedies. The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

13.9

Notices.

13.9.a

Any notice given to a party under or in connection with this contract shall be in writing and shall be:

13.9.a.i

delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business or the address provided by the Seller to the Company; or

13.9.a.ii

sent by email to the following email address:

for the Company: [email protected]

for the Seller: the email address provided by the Seller at the point of entry into this contract, as amended by the Seller on their account from time to time.

13.9.b

Any notice shall be deemed to have been received:

13.9.b.i

if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

13.9.b.ii

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 or at the time recorded by the delivery service.

13.9.b.iii

if sent by email, at 9.00 am on the next Business Day after transmission.

13.9.c

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14. Governing Law

This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.

15. Jurisdiction

The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this agreement, its subject matter or its formation (including non-contractual disputes or claims).

16. Force majeure

By agreeing to the terms set out in this agreement, the Seller agrees to be bound by the Terms and Conditions and acknowledges that it has read and understood the Privacy Policy.