The Fournaise Marketing Group Ltd (registered in England and Wales under the registration number 6443467), The Fournaise Marketing Group Pty Ltd (registered in Australia under the ABN 23 127 295 872), The Fournaise Marketing Group Pte Ltd (registered in Singapore under the registration number 199907353K) and all The Fournaise Marketing Group entities/operations around the world are hereby defined as “Fournaise”. All employees, directors, representatives, agents, contractors or consultants of Fournaise are hereby defined as “the Consultants”.
These terms and conditions are hereby defined as the “Terms and Conditions”.
All corporations, organisations or business entities who (through their employees, staff, consultants, advisors or partners) have signed and/or approved (verbally, in writing, by fax, email, or post) one or more Clients Agreements and/or who have issued one or more purchase orders related to Clients Agreements (or to the Solutions) and/or who have signed up for one or more of the Solutions are hereby defined as “the Clients” (or “Client”), even after expiry or sooner termination of the Clients Agreements or of the Solutions. For the avoidance of doubt, Clients Agreements and Solutions are defined in the Services section below.
Where Fournaise is engaged by a Client to provide the Services for customers, clients or principals of that Client, these customers, clients or principals of that Client shall be referred to as “Principals”.
All suppliers and/or vendors of Fournaise from which Fournaise purchases/purchased goods, products, solutions and/or services and/or who have been appointed by Fournaise for specific projects and/or programs are hereby defined as “the Vendors”.
“wTAMs®” (pronounced weetams) are defined as Fournaise’s proprietary Marketing Performance Tracking & Boosting Technology Solutions and Platforms. They include (but are not limited to) Fournaise AudienceTester® Pains, Fournaise AudienceTester® CVPs, Fournaise CampaignTester®, Fournaise CustomerGenerator™, WebAnalyser™, FournaiseProspector™, Fournaise CampaignAnalyser®, Fournaise BrandAnalyser™, Fournaise ShopperConvertor™, Fournaise CompetitionTracker™, Fournaise Campaigns Performance SoftScore (F-CPSS™), Fournaise Brand Performance SoftScore (F-BPSS™), FournaiseLeador™, FournaiseDashboard™ and Fournaise ContentAnalyser™.
“Fournaise ResultMachine™” is defined as Fournaise’s Marketing Performance Ad Agency, developing communication strategies, creative executions and/or ads, and/or planning/booking media and/or purchasing/managing databases and other marketing assets for the Clients.
The Fournaise Marketing Performance Institute™ (“FMPI”) is defined as the education and training division of Fournaise that trains and accredits and/or certifies marketing people in the area of marketing and marketing performance, based on Fournaise-developed education/training programs.
The “Services” are:
As per the descriptions detailed in the Clients Agreements. The Clients Agreements are hereby defined as any agreement or document or quotation (including Fournaise ResultMachine™ quotations and FMPI registrations/quotations) provided by Fournaise to the Clients and approved by the Clients in any form (including by email and by fax), or for which the Clients issued one or more purchase orders to Fournaise, or for which the Clients paid invoices issued by Fournaise, and includes any agreements entered into between Fournaise and the Clients; and/or
Fournaise AudienceTester® Pains, Fournaise AudienceTester® CVPs, Fournaise CampaignTester®, Fournaise CustomerGenerator™, WebAnalyser™, FournaiseProspector™, Fournaise CampaignAnalyser®, Fournaise BrandAnalyser™, Fournaise ShopperConvertor™, Fournaise CompetitionTracker™, Fournaise Campaigns Performance SoftScore (F-CPSS™), Fournaise Brand Performance SoftScore (F-BPSS™), FournaiseLeador™, FournaiseDashboard™ and any other solution/program/wTAM® of Fournaise for which the Clients have registered and/or opened an account and/or signed-up and/or selected Fournaise price plans and other fees, and/or have been using and/or to which the Clients have been given access, including but not limited to the Fournaise ROI Management Centre and the FournaiseProspector™ Sales Force Centre (the “Solutions”); and/or
As per the agreements and/or quotations agreed in writing between Fournaise and the Vendors (the “Vendors Agreements”); and/or
The public and private training, education, certification and/or accreditation courses (the “Courses”) organised and delivered by Fournaise, FMPI and/or the 3rd parties (as defined in Clause 13) appointed by Fournaise.
Fournaise shall be entitled at all times to identify the Clients and Principals and use/display the Clients’ and Principals’ trade marks, trade names and logo(s) in its (internal and/or external) presentations and in its promotional and advertising materials (including its websites). Fournaise shall also be entitled to use, display, host and/or incorporate into its wTAMs®/Solutions/Services Clients-related and Principals-related testimonials, feedback, suggestions, enhancement requests, recommendations, corrections, modules, reports, case studies and other statistics (excluding confidential information of the Client or Principal concerned, or such other information that Fournaise may agree in writing with the Client not to use or disclose) (the “Information”) for the creation, development and/or provision of wTAMs®/Solutions/Services and in its promotional and advertising materials (including its websites). In consideration of the Services provided, all Clients hereby grant Fournaise an irrevocable, worldwide, perpetual, royalty-free licence to use their trade marks, trade names, logo(s), materials and Information as aforesaid, and hereby undertake to procure in favour of Fournaise the grant by the Principals to Fournaise of an irrevocable, worldwide, perpetual, royalty-free licence to use the trade marks, trade names, logo(s), materials and Information of the Principals as aforesaid. Pursuant to Clause 10, Fournaise retains all rights in case studies and other material developed by or on behalf of Fournaise, notwithstanding that they may have been created with reference to Clients’ or Principals’ materials and Information. For the avoidance of doubt, all resulting IP Rights, Solutions and Services may be fully exploited by Fournaise without reference or accountability to the Clients or Principals. This Clause shall survive the termination of the Clients Agreement and shall not be limited by Clause 9 or any other provisions under the Clients Agreement or these Terms and Conditions.
The Clients hereby undertake to procure the acceptance of the Principals of this Clause.
Fournaise and the Consultants shall at all times and in any event not be liable to Clients, Principals and Vendors for any loss or damage (including but not limited to any direct, indirect or consequential, special or incidental loss or damage, loss of products or actual or anticipated savings or income) of whatsoever nature and howsoever caused, or for any claims made or proceedings instituted against the Clients/Principals/Vendors by any third party, which may be suffered or incurred by the Clients/Principals/Vendors, their clients, or their suppliers, or which may arise directly or indirectly in connection with the provision of the Services provided by and/or to Fournaise or the Consultants.
Fournaise and its Consultants do not warrant the adequacy, reliability, suitability, quality, accuracy, legality, non-infringement, merchantability or fitness for purpose of the Services and Solutions and the source code/software comprised in the same, which are provided on an “as is” and “as available” basis. To the extent legally permitted, Fournaise and its Consultants exclude all implied warranties and representations.
Without prejudice to the generality of the foregoing (Clause 2), Fournaise and the Consultants shall not be responsible or liable in any way and for any reason whatsoever for among other things:
(a) any failures or delays in performing its/their obligations hereunder arising from any cause beyond its/their control, including but not limited to acts of God, acts of civil or military authority, fire, strikes, lock-outs or labour disputes, epidemics, governmental restrictions, wars, riots, earthquakes, storms, typhoons and floods;
(b) any loss or damage or claim arising from any data, presentation, analysis, result, report, promotion, marketing program, content, website, artwork, ad, strategy, campaign, medium, database and/or idea (the “Content”) used and/or developed and/or commissioned and/or outsourced and/or managed and/or created by Fournaise in the provision of the Services;
(c) any loss or damage or claim arising from any interruption in or malfunction of or failure of or human error or virus or malicious software related to the technology, applications, hardware, software, Solutions, equipment, online platforms, wTAMs® and processes (the “Systems”) used and/or developed and/or commissioned and/or outsourced and/or managed by Fournaise in the provision of the Services;
(d) any loss or damage or claim arising from any technical or human error leading to the over-redemption of prizes, rewards, items, benefits and/or incentives used and/or developed and/or commissioned and/or outsourced and/or managed by Fournaise in the provision of the Services;
(e) the accuracy and completeness of any information, analysis, report, presentation, data, artwork, ad, campaign, document and image used and/or provided by or to Fournaise in relation to the Services;
(f) the accuracy and completeness of all translations of materials and documents used by the Clients and/or Fournaise in providing the Services including but not limited to where such translations were made or carried by Fournaise, where such translations have not been made or carried out by Fournaise and/or where such translations have been provided by the Clients or the Clients’ suppliers to Fournaise;
(g) any loss or damage or claim directly or indirectly caused by or contributed to, by, or arising from the Clients’ data being accessed by third parties through illegal or illicit means, including the use or operation, as a means for inflicting harm, of any computer, computer system, computer software programme, malicious code, computer virus or process, and situations of access by exploitation of software security gaps, inherent flaws or weakness in any software, or the Clients’ own internal security procedures governing the use of the Services and the conduct of its users.
Notwithstanding any other provision of these Terms and Conditions the maximum aggregate liability of Fournaise or the Consultants in respect of any and all claims under these Terms and Conditions and/or the Clients Agreements/Vendors Agreements shall not exceed:
for Clients and Principals: the fees charged by Fournaise in the approved Clients Agreement (and/or Solution) in respect of which the liability is claimed, or US$10,000, whichever is lower;
for Vendors: the fees paid by Fournaise in the approved Vendors Agreement in respect of which the liability is claimed, or US$5,000 whichever is lower.
Notwithstanding Clause 4, the Clients shall indemnify and keep Fournaise and the Consultants indemnified at all times against any and all claims, actions, proceedings, damages, costs, losses, charges and expenses (including without limitation legal fees) incurred or suffered by Fournaise or the Consultants in connection with the provision of the Services to the Clients and/or the Principals and/or in connection with a breach of these Terms and Conditions or the Clients Agreements by the Clients and/or Principals. Where Fournaise assists a Client and/or Principal by registering and/or managing in the Client’s and/or Principal’s name such domain name(s) selected by the Client and/or Principal (or by Fournaise) as part of the Services, the Client undertakes to fully indemnify Fournaise in respect of any liability to a third party arising out of such a registration and/or management. The indemnity under this Clause shall extend to all claims, demands, actions and proceedings instituted by or on behalf of the Principals against Fournaise and/or the Consultants, and all damages, costs, losses, charges and expenses (including without limitation legal fees) incurred or suffered by Fournaise and/or the Consultants in connection therewith.
The Vendors must deliver the Services to the full satisfaction of Fournaise. Fournaise reserves the right to immediately terminate Vendors Agreements in the case the Services are not delivered to the full satisfaction of Fournaise and/or in the case the projects for which the Vendors were appointed by Fournaise are cancelled and/or delayed for any reason whatsoever. The Vendors shall indemnify and keep Fournaise indemnified at all times against any and all claims, actions, proceedings, damages, costs, losses, charges and expenses (including without limitation legal fees) incurred or suffered by Fournaise in connection with the provision of goods or services by the Vendors to Fournaise and/or in connection with a breach of these Terms and Conditions or the Vendors Agreements by the Vendors.
Confidentiality (Clients): subject to Clause 1, neither party (be it the Clients or Fournaise) shall, without the prior written consent of the other party, divulge or communicate to any person other than those whose province it is to know the same or with proper authority or for the purpose of enforcing these Terms and Conditions, or use or exploit for any purpose whatsoever any of the trade secrets or confidential knowledge or information or any financial or trading information relating to the other party, its business, processes, solutions and affairs. This restriction shall continue to apply after the expiration or sooner termination of these Terms and Conditions but shall cease to apply to information or knowledge, which was already publicly known at the time it was disclosed, which may properly come into the public domain through no fault of either party or which is required by any applicable law or regulation to be disclosed. The Clients shall procure that the Principals shall be at least similarly bound as under this Clause in relation to the confidential information of Fournaise, and any breach of confidentiality by the Principals shall be deemed to be a breach by the Clients.
Confidentiality (Vendors): neither party (be it the Vendors or Fournaise) shall, without the prior written consent of the other party, divulge or communicate to any person other than those whose province it is to know the same or with proper authority or for the purpose of enforcing these Terms and Conditions, or use or exploit for any purpose whatsoever any of the trade secrets or confidential knowledge or information or any financial or trading information relating to the other party, its business, clients, processes, solutions and affairs. This restriction shall cease to apply to information or knowledge, which was already publicly known at the time it was disclosed, which may properly come into the public domain through no fault of either party or which is required by any applicable law or regulation to be disclosed.
Clients may terminate a Clients Agreement in accordance with this Clause.
a) Period-Based Clients Agreements (as defined in Clause 16(b)) may be terminated with 1 calendar month’s notice in writing to Fournaise and shall be subject to payment of a termination fee equivalent to the amount of Charges (as defined in Clause 16) payable under the Clients Agreement being terminated;
b) All other Clients Agreements may be terminated at any time with 1 business day’s notice in writing to Fournaise and shall be subject to payment of a termination fee equivalent to the amount of Charges payable under the Clients Agreement being terminated.
Upon such termination, Fournaise shall not be obliged or required to refund to Clients any amounts previously paid by the Clients under the Clients Agreements being terminated.
9A. Fournaise Policies
a) All content, designs, pictures, logos, artworks, files, reports, presentations, information of any kind and data provided by the Clients and/or Principals (the “Client Data”) to Fournaise for the purpose of the Services/wTAMs®/Solutions shall be the sole and exclusive responsibility of the Clients. Fournaise does not allow the display of material on its network deemed to be pornographic in nature, unsolicited email or spam, illegal or fraudulent, or of such a nature as may incite or endorse religious/ethnic intolerance or strife.
b) Fournaise has a zero tolerance policy regarding the sending of Unsolicited Commercial Email (“UCE”, or “spam”) using its wTAMs® or Solutions. Any Client found to be in violation of this policy is subject to immediate suspension and/or termination, and will not be allowed to send any additional emails using the wTAMs® or Solutions. The Clients shall comply with all laws and regulations applicable to bulk or commercial email when using the wTAMs® and/or Solutions, including without limitation all local or national laws applicable to the regions where Clients have business operations or where their email recipients are located, e.g., the United States CAN-SPAM Act of 2003, the Singapore Spam Control Act Chapter 311A etc.
c) In addition, Clients may not send any Unsolicited Email by use or means of the wTAMs® and/or Solutions. “Unsolicited Email” is defined as email sent to persons other than: (i) persons with whom the Clients have an existing business relationship, OR (ii) persons who have consented to the receipt of such email, including publishing or providing their email address in a manner from which consent to receive email of the type transmitted may be reasonably implied.
d) All Bulk or Commercial Emails sent by the Clients using the wTAMs® and/or Solutions must follow local anti-spam regulations and include provision for recipients to revoke consent, i.e., to “opt out”, of receiving future email contacts from the sender. The Clients shall have procedures in place to allow an email recipient to easily opt-out, such as instructions to reply with the word “Remove” in the subject line. Clients shall honor any and all such revocations of consent within 72 hours.
e) The Client shall be responsible to ensure that the Principals comply with the foregoing policies set out in this Clause 9A, and any breach by the Principals shall be deemed to be a breach by the Client.
a) “IP Rights” are hereby defined as all patents, trade marks, service marks, logos, goodwill, get-up, trade names, internet domain names, rights formulas, designs, copyright (including rights in computer software) and moral rights, database rights, rights in know-how, trade secrets, inventions, models, methodologies, processes, proprietary information and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world which subsist in (without limitation):
(i) platforms, concepts, solutions, applications, designs, modules, models, methodologies, processes and engines that are either owned, created, conceptualised, developed, designed, brought, used, activated, provided, hosted, handled or managed by Fournaise (and/or that are integrated or displayed by Fournaise in the Clients’ solutions, engines, websites and/or platforms) for the purpose of providing the Services and/or for the purpose of the Solutions and/or in the context of the Clients Agreements; and
(ii) all front-end and back-end (public and private) wTAMs®, concepts, ideas, content, tools, processes, display methodologies, graphic designs, display designs, survey methodologies, survey forms, survey sections, survey question formats, survey questions phrasing, survey answers phrasing, data capture methodologies, survey and other data, KryptoCode™ methodologies, analysis methodologies, scoring methodologies, scaling methodologies, formulae, presentations, case studies, applications, pictures, data, analyses, insights, results, public source codes, private source codes, structures, web and mobile designs, web and mobile templates, web and mobile forms, web and mobile modules, standard or customised CRM (and shopper conversion) platforms, online games, eNewsletters, email templates, email platforms, technology, processes, hardware and software, engines, materials, potential customer/lead databases, reports and all intellectual property of any kind whatsoever relating directly or indirectly to the Services and/or the Solutions (including but not limited to the Fournaise ROI Management Centre, the FournaiseProspector™ Sales Force Centre, the engagement mechanisms of Fournaise CustomerGenerator™ and their display format/structure/designs, and the credit, deal/prize catalog and redemption engines of Fournaise ShopperConvertor™) and all documents, modules, designs, forms, sources codes and platforms of any kind marked or not marked with a Fournaise copyright,
whether or not the same were developed with reference to information or materials provided by Clients and/or Principals, or at the request or instructions of Clients and/or Principals.
b) The Clients acknowledge and agree (and shall procure that the Principals acknowledge and agree) that the IP Rights shall be and shall remain the sole and exclusive property of Fournaise at all times, and that the wTAMs®, Services, Solutions and other software and tools provided by Fournaise consist of proprietary information and trade secrets of Fournaise. The Clients shall not (nor permit or facilitate the Principals to) have access to or any rights whatsoever over the IP Rights (including but not limited to copy, reproduction and/or usage, even partial) at any time whatsoever. During the validity period of the Clients Agreements (and/or Solutions) and after their expiration (or sooner termination), the Clients acknowledge and agree (and shall procure that the Principals acknowledge and agree) not to (directly or indirectly) copy, reproduce or use (whether partially or in full) any of the IP Rights, create derivative works or similar products or solutions or engines from the IP Rights, post or link to or host on any website, domain, network or bulletin board, translate, reverse engineer, decompile, disassemble, grant security over, licence/sublicence any of the IP Rights or do anything to prejudice or invalidate Fournaise’s IP Rights, or attempt to do so for any reason whatsoever. In the event of a breach of the IP Rights by the Clients or the Principals, the Clients specifically agree to pay Fournaise an IP Rights breach compensation fee (the “IP Rights Breach Compensation Fee”) equivalent to 30 times the fees agreed by the Clients in the Clients Agreements related to the Services and/or Solutions for which the Clients breached one or more IP Rights, or US$1 million, whichever is higher. A breach by the Principals of the IP rights shall be deemed to be a breach by the Clients.
c) In the specific case where the Services include the delivery of performance reports, tracking reports and/or any other reports (the “Reports”) to the Clients, Fournaise shall grant to the Clients a perpetual, non-revocable, royalty-free, non-exclusive licence to Fournaise’s:
(i) Copyright in the Reports, to make copies of the same in whole or in part, and to make extracts and summaries of the contents therein;
(ii) Trade marks and service marks, trade names and domain names insofar as the same are contained in the Reports, for the purposes of the preceding sub-subclause (i).
For the avoidance of doubt, the Clients may with the prior written permission of Fournaise to the extent that their contractors would require information contained in the relevant parts of the Reports in the performance of their legal obligations towards the Clients, make copies of such relevant portions of the Reports for use by such contractors, provided always that such contractors:
(i) may only use such Reports in their performance of such obligations to the Clients and may not make copies of the same;
(ii) shall not be in the business, directly or indirectly, of developing, facilitating, providing or advising on services, products and solutions similar to the services, products and solutions provided by Fournaise;
(iii) shall not, directly or indirectly, be in any business in competition with Fournaise; and
(iv) shall have signed confidentiality and restraint of use undertakings in respect of the Reports in terms required by Fournaise, or in the absence of any specific requirement, in terms no less protective than those under these Terms and Conditions.
By way of illustration, but without limiting the generality of the foregoing, no part of the Reports may be disclosed to marketing performance measurement and management (MPM) providers, market research service providers, data analysis service providers, insights providers and their respective suppliers.
In all cases, the Clients shall be solely responsible for any breach of confidentiality or restraint use undertakings by any person to whom any part of the Reports has been disclosed.
d) Where the Reports are delivered to the Principals (whether through the Clients or directly to the Principals), the foregoing subclause c) shall apply to the Principals, and it shall be the responsibility of the Clients to ensure that the Principals comply with the requirements of the foregoing subclause c) as if all the references to “Clients” therein are substituted with “Principals”, and any breach by the Principals of any of such requirements shall be deemed to be a breach by the Clients. This subclause d) shall not limit the application of subclause c) to the Clients in any event.
e) In the specific case Fournaise designs, creates and/or conceptualises creative artworks, ads, and other communication materials and/or campaigns via Fournaise ResultMachine™ for the purpose of providing the Services stipulated in the Fournaise ResultMachine™ quotations approved by the Clients (the “Ads”), upon payment of all fees due by the Clients to Fournaise, Fournaise shall, subject to Clause 10 b), assign to the Clients (or the Principals, if so directed by the Clients) all rights, title and interest in and to the Ads (and every part thereof), including copyright, for the full period of copyright and other applicable rights. Clients agree (and hereby undertake to procure that the Principals agree) that such assignment includes an irrevocable, worldwide, perpetual, royalty-free licence of the rights to Fournaise to retain a copy of, use, develop, create enhancements, reproduce, distribute and adapt the Ads for portfolio, archival and internal training, research, commercialisation, training, and to promote Fournaise’s services and solutions. Any assignment shall be subject to such agreement of the Principals as aforesaid.
The Vendors acknowledge and agree that all IP Rights are the sole and exclusive property of Fournaise and the Vendors shall not have access to or any rights over the IP Rights (including but not limited to reproduction and usage, even partial) unless they have been specifically granted in writing by Fournaise.
- Materials Policy. In connection with User Submissions of material on the Solutions by the Clients and/or the Principals and/or the Clients’ agents/partners, the Clients further agree that they will not and will procure that the Principals will not:
(i) submit and/or load and/or display material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless the Clients are the owner of such rights or have permission from their rightful owner to post the material and to grant Fournaise all rights necessary to publish, reproduce or distribute the same without infringing any third party rights;
(ii) publish falsehoods or misrepresentations that could damage Fournaise or any third party;
(iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate;
(iv) post advertisements or solicitations of business;
(v) impersonate another person.
Fournaise does not endorse nor warrant the accuracy or reliability of any User Submission or any opinion, recommendation, or advice expressed therein, and Fournaise expressly disclaims any and all liability in connection with User Submissions. Fournaise does not permit copyright infringing activities and infringement of intellectual property rights on its Website and/or Solutions, and Fournaise will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. Fournaise reserves the right to remove Content and User Submissions without prior notice. Fournaise will also terminate a Client’s or Principal’s access to its Website and/or Solutions, if the Client and/or the Principals are in Fournaise’s sole discretion determined to be repeat infringers. A repeat infringer is a Client or Principal who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website and/or Solution more than twice. Fournaise also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms and Conditions for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornographic, obscene or defamatory material, or for being irrelevant or excessive in length. Fournaise may remove such User Submissions and/or terminate a Client’s or Principal’s access for uploading such material in violation of these Terms and Conditions at any time, without prior notice and at its sole discretion.
Fournaise shall be entitled from time to time to assign or sub-contract part (or all) of its obligations for the purpose of providing the Services to third parties, agents and/or partners (the “3rd Parties”). The Clients agree not to directly or indirectly solicit or endeavor to solicit or entice away these 3rd Parties for any reasons whatsoever without the prior written agreement of Fournaise.
Neither the Clients, Principals nor the Vendors will be entitled to use, reproduce, distribute or display any of Fournaise trade names, trade marks or service marks (including, without limitation, the Fournaise logo and the Fournaise name) in any manner unless approved in writing in advance by Fournaise. If Fournaise provides any such approval, the Clients (and the Clients shall procure that the Principals) and/or Vendors will comply with any guidelines regarding the use of such logos, names or marks provided by Fournaise.
In the case Vendors have to translate and/or integrate and/or program translated languages as part of their Services, they must follow procedures and/or processes agreed in writing with Fournaise (including but not limited to formats of English transcript documents).
The Clients shall pay to Fournaise all costs, expenses, fees and charges (“Charges”) for the amounts and in the manner stipulated in the Clients Agreements. The Charges shall be paid to Fournaise net of all applicable bank charges, taxes, government surcharges, levies, penalties, remittance charges, foreign exchange control charges, administrative charges and other third party fees/expenses that may be incurred for the purposes of remitting the Charges to Fournaise, which shall be the sole responsibility of the Clients and shall be borne/paid by the Clients at all times.
a) If the Charges are not paid in accordance with the Clients Agreements:
(i) Fournaise shall be entitled (notwithstanding any other rights and remedies it may have) to charge interest on the unpaid Charges at the rate of 3% per month from the due date until the date of receipt of the unpaid Charges;
(ii) Fournaise shall also be entitled to terminate or suspend the Clients Agreements immediately, if any amount of monies due and payable by Clients is not settled to Fournaise’s satisfaction within 7 days after Fournaise’s written demand for payment;
(iii) Fournaise shall reserve the rights to engage the services of debt collection agencies (the “DCAs”) to collect on its behalf any amount of monies owned by the Clients to Fournaise. In this case, the Clients agree that in addition to the amount of monies they owe Fournaise, the Clients will be solely responsible for and will have to pay in full the collection fees, the collection commissions and all legal fees/charges and disbursements charged by the DCAs to Fournaise or incurred by Fournaise.
b) Clients Agreements related to or including Fournaise CustomerGenerator™ and/or Fournaise ShopperConvertor™ (hereby defined as the “Period-based Clients Agreements”) include a period that corresponds to the number of months or years the Clients have agreed to use, activate, apply, run, deploy and/or renew their contract with Fournaise for both or one of these two Solutions (hereby defined as the “Period”):
(i) At the end of each Period, Period-based Clients Agreements will be automatically renewed for a period of similar duration as the Period (hereby defined as the “Renewal Period”), unless a written no renewal and termination notice (the “No Renewal Notice”) is received by Fournaise by email or fax from the Clients at least 60 calendar days before the end of each Period. For example, a 12-month Clients Agreement for Fournaise CustomerGenerator™ whose Period ends on 31 July 2010 will automatically be renewed for another 12 months unless Fournaise receives from the Clients in writing by email or fax the No Renewal Notice by 2 June 2010.
(ii) Period-based Clients Agreements that are automatically renewed will cover the exact same Services, the exact same countries/regions, the exact same languages, the exact same terms (including but not limited to notes, comments, billing terms and payment terms), and the exact same Charges during the Renewal Period as those detailed and agreed on in the initial Clients Agreements, unless otherwise agreed in writing between Fournaise and the Clients (through a signed addendum of the Clients Agreements). Upon renewal of a Period-based Clients Agreement, notwithstanding any variation to the billing/payment/credit terms that may have been agreed to by Fournaise during a previous Period, Fournaise reserves the right to solely decide whether the original billing/payment/credit terms stated in the Clients Agreement or varied billing/payment/credit terms will apply to the Clients Agreement for the subsequent Renewal Period. The Clients fully acknowledge that these Terms and Conditions apply to the Clients Agreements at all times during the Renewal Period and the Clients agree to be fully bound by these Terms and Conditions at all times during the Renewal Period.
(iii) Fournaise reserves the right not to renew Period-based Clients Agreements at the end of any Period (or Renewal Period) for any reason whatsoever, in which case Fournaise will send the Clients a No Renewal Notice by email or fax at least 15 working days before the end of the Period or Renewal Period.
Fournaise reserves the right to amend, vary, or supplement part or all of the Terms and Conditions herein at any time without prior verbal or written notice. All Clients and Vendors shall be bound by any such variations, and are responsible for regularly checking Fournaise’s website for the latest updates to these Terms and Conditions.
For the avoidance of doubt, in the event of a conflict between the Terms and Conditions (including any amendments, variations, supplements or changes thereto), and any other terms or conditions contained in any other correspondence, note, receipt, invoice, purchase order, delivery order, or any other relevant document whatsoever, the Terms and Conditions shall prevail, without any exception whatsoever, regardless of when the Clients Agreement is signed.
However, in the event of a conflict between the Terms and Conditions (including any amendments, variations, supplements or changes thereto), and any other terms or conditions contained in the Clients Agreements, the Terms and Conditions shall prevail, provided always that Fournaise may at its sole discretion make specific written provision in the Clients Agreement for a specific term in the Clients Agreement to prevail over a specific term in these Terms and Conditions. No provision in the Clients Agreement shall prevail over any term in these Terms and Conditions by implication.
- Fournaise may terminate a Clients Agreement:
a) in accordance with Clause 16(a)(ii);
b) immediately with notice in writing, if the Client breaches any provisions of these Terms and Conditions or the Clients Agreements;
c) immediately with notice in writing, if the Client does not show goodwill and/or desire to have a peaceful relationship with Fournaise, as solely judged by Fournaise, and/or if the Client makes comments or remarks negatively affecting Fournaise’s reputation and/or integrity, as solely judged by Fournaise.
Termination of Clients Agreements/Vendors Agreements for any reason shall not affect any rights or liabilities accruing to either party before such termination.
The failure of Fournaise hereto to insist in any one or more instances upon the strict performance of any of the provision of these Terms and Conditions or a Clients Agreement or Vendors Agreement, or to take advantage of any of its rights thereunder, shall not be construed as a waiver of any subsequent breach of the same or any other provision thereof.
Where the Services are to be provided to or for the benefit of a Principal, it shall be the sole responsibility of the Clients, notwithstanding that Fournaise and the Principal may be dealing directly with little or without reference to the Clients, to ensure that the Principal observes and performs all the obligations required of Principals under these Terms and Conditions and all obligations of the Clients under these Terms and Conditions as if the Principals were named hereunder in place of the Clients. Any breach by the Principal of these Terms and Conditions shall be deemed to be a breach by the Clients hereunder. This Clause shall not be construed to limit the obligations of the Clients under these Terms and Conditions.
All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly delivered if sent by fax and/or by post (with certificate of posting or any other proof of posting) to the party concerned. Any notice given by post shall be deemed to have been served 1 day after it was posted.
Clients and Vendors consent and agree to receiving communications from Fournaise electronically during and after the term of the Clients Agreement(s)/Vendors Agreement(s) with Fournaise, and also agree that electronic notices, agreements and communications notified to them by these means or electronically satisfy any legal requirement that they be in writing, and shall be deemed to have been served on the day that such electronic communication is sent by Fournaise. In the event Clients or Vendors no longer wish to receive such electronic communications, they shall e-mail Fournaise at firstname.lastname@example.org to request to unsubscribe/opt-out from the same. Fournaise shall not have been deemed to have received such emails from Clients or Vendors, unless Fournaise confirms in writing that it has received such emails from the Clients or Vendors.
If any of the provisions of these Terms and Conditions or a Clients Agreement or Vendors Agreement is found by a Court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted therefrom and the remaining provision(s) thereof shall continue in full force and effect. Notwithstanding the foregoing, each party shall thereupon negotiate in good faith in order to agree on the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.
For Clients Agreements and Vendors Agreements entered with The Fournaise Marketing Group Ltd (registered in England and Wales under the registration number 6443467): these Terms and Conditions together with the Clients Agreements and the Vendors Agreements shall be governed and construed in accordance with the English law and each party hereto submits to the non-exclusive jurisdiction of the Courts of England.
For Clients Agreements and Vendors Agreements entered with The Fournaise Marketing Group Pty Ltd (registered in Australia under the ABN 23 127 295 872): these Terms and Conditions together with the Clients Agreements and the Vendors Agreements shall be governed and construed in accordance with the New South Wales (Australia) law and each party hereto submits to the non-exclusive jurisdiction of the Courts of New South Wales.
For Clients Agreements and Vendors Agreements entered with The Fournaise Marketing Group Pte Ltd (registered in Singapore under the registration number 199907353K): these Terms and Conditions together with the Vendors Agreements shall be governed and construed in accordance with the laws of the Republic of Singapore and each party hereto submits to the non-exclusive jurisdiction of the Courts of Singapore.
For the avoidance of doubt, this Clause 23 shall prevail over any inconsistent provision in any Clients Agreement.