Product Terms & Conditions
Definitions
In these Member Terms and Conditions, the following definitions shall apply:
"Member" means a funeral director, online funeral director, and/or regulated/appointed prepaid representative.
"Business Day" means any day other than a Saturday, Sunday or public holiday in England, when the banks in London are open for business;
"Business Hours" means between the hours of 9:00am to 5:00pm (GMT) on a Business Day;
"Content" means any content and materials made available by, on behalf or on the instruction of, the Member to The Farewell Guide or any Group Company on the Website(s), including (without limitation) property details, any intellectual property rights, Lead Content, Photograph Content and Video Content;
"Contract" or "Agreement" means a contract for Services between The Farewell Guide and the Member governed by these Member Terms and Conditions, the Order Form and, where appropriate, Product Specific Terms and Conditions;
"Controller" is defined in the Data Protection Legislation;
"Data Subject" is defined in the Data Protection Legislation;
"Data Subject Rights" means the rights of Data Subjects set out in Chapter III of the GDPR;
"Data Protection Legislation" means the EU General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR") and the Privacy and Electronic Communications Regulations 2003, and (in each case) any successor legislation enacted in the United Kingdom;
"Fees" means the amounts due to The Farewell Guide (or any Group Companies) by the Member under the Contract and set out or calculated in accordance with the Order Form (as varied from time to time in accordance with clause 4.9);
"Force Majeure Event" means an Act of God; war; riot, civil commotion; strike, lockout or other labour disturbance (not including those involving the party's employees); or any other circumstances beyond the control of the party seeking to invoke Force Majeure which include outbreak of epidemics and infectious diseases such as plagues, quarantine restrictions or restrictions against entry into any country where services or materials are being obtained or delivered and which operate to frustrate the Contract;
"Group" means The Farewell Guide and any holding company or companies and any subsidiary undertaking(s) of The Farewell Guide or The Farewell Guide's ultimate parent company from time to time and "Group Company" means any one of them;
"Initial Term" means an initial term of the Contract, if any, as set out in the Order Form or agreed by the parties in writing;
"Lead" means either an email or telephone call received by the Member from any person who has contacted the Member using the contact form or contact details supplied on the Website(s);
"Lead Content" means any data or information generated by or resulting from the activities of a Lead;
"Logo" means The Farewell Guide logo or any other logo as The Farewell Guide or any Group Company may from time to time provide to the Member;
"Marketing Materials" means the marketing materials provided to the Member by The Farewell Guide or any Group Company for the purpose of promoting the Services;
"Minimum Term" any minimum order period or term (other than the Initial Term or Renewal Term) for Services as set out in a Services Amendment Form or on The Farewell Guide terms;
"Membership Form" means the order form for Services (as agreed, amended or added to from time to time by a Services Amendment Form, via The Farewell Guide, or otherwise by the parties in writing) indicating the Services to be provided under the Contract together with any specific terms relating to Fees or portal obligations;
"Online Funeral Director" means a funeral director that operates primarily via a website (rather than a physical branch) and/or does not operate through a local office network;
"Personal Data" is defined by the Data Protection Legislation;
"Image Content" means any Content in a photograph format;
"Image Content Criteria" means the Photograph Content criteria notified to the Member from time to time;
"Processor" is defined in the Data Protection Legislation;
"Product Specific Terms and Conditions" means additional terms and conditions that relate to specific Services provided by and to which, in addition to these Member Terms and Condition, the Member shall be subject whilst in receipt of such Services;
"Relevant Requirements" means all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
"Renewal Term" has the meaning set out in clause 7.1;
"Services" means the services to be provided by The Farewell Guide (or its Group Companies) as set out in the Order Form and which may include any, or a combination, of the following:
a process facilitating the upload by the Member of property details (including images) to the Website(s);
displaying the Member's properties on the Website(s);
providing the Member with a listing within the funeral director directory on the Website(s);
providing Leads to the Member;
providing advertising services to the Member;
providing reports and access to reporting tools to the Member; and
any other services provided by The Farewell Guide (or its Group Companies) from time to time.
"Services Amendment Form" means a services amendment form, additional products order form or purchase order form or any other form provided by The Farewell Guide and signed by the Member indicating an amendment or addition to the type or level of Services set out in the Order Form;
"Start Date" means a start date for the Contract as may be specified in the Order Form;
"Unique User" means a uniquely identifiable visitor to the Website(s) within any calendar month;
"Upload Systems" means any system made available by The Farewell Guide to the Member to facilitate the supply of Content to the Website(s);
"Website(s)" means any mobile application, the website located at www.thearewellguide.co.uk and any other website whose domain is owned or controlled or powered by The Farewell Guide or any Group Company as The Farewell Guide may determine and via which Services are provided;
"The Farewell Guide" or "the Company" means The Farewell Guide Limited, a company incorporated in England and Wales with Company No. 06074771 whose registered office is at The Cooperage, 5 Copper Row, London, SE1 2LH; and
"The Farewell Guide Pro" means the backend tool accessible to Members for viewing and managing their The Farewell Guide membership.
1. Contract between The Farewell Guide and the Member
1.1. No Contract shall subsist until:
a. unless waived by The Farewell Guide, an Order Form completed and signed by the Member is received by The Farewell Guide (or a Group Company); and
b. the later of the Start Date (if any) and The Farewell Guide (or any Group Company) commencing provision of Services (whether by facilitating display of Content on the Website(s) or otherwise),
whereupon The Farewell Guide and the Member shall be deemed to have entered into a legally binding Contract on the Member Terms and Conditions set out herein and any relevant Product Specific Terms and Conditions.
1.2. The Contract shall be between The Farewell Guide and the Member and shall comprise the Order Form, these Member Terms and Conditions and any relevant Product Specific Terms and Conditions to which the Member is subject which, together, shall constitute the entire agreement relating to its subject matter between the parties to the exclusion of all previous terms and conditions (whether between the Member and The Farewell Guide or the Member and another Group Company) and all other terms and conditions (including any which the Member purports to apply under any purchase order, confirmation of order or other document) relating to its subject matter. Each party acknowledges that, in entering into the Contract, it does not rely on anything that is not set out in the Order Form, these Member Terms and Conditions and any relevant Product Specific Terms and Conditions.
1.3. In the event of any conflict between these Member Terms and Conditions and the Order Form, these Member Terms and Conditions shall prevail and in the event of any conflict between these Member Terms and Conditions and any Product Specific Terms and Conditions, these Member Terms and Conditions shall prevail save where they relate to a matter pertaining to Services to which any relevant Product Specific Terms and Conditions relate whereupon such Product Specific Terms and Conditions shall prevail.
1.4. All Contracts between The Farewell Guide (or any Group Company) and a Member shall be governed by these Member Terms and Conditions and any relevant Product Specific Terms and Conditions and any variation thereof shall have no effect unless expressly agreed in writing by The Farewell Guide in an Order Form or Services Amendment Form.
1.5. From time to time, The Farewell Guide may amend these Member Terms and Conditions and any Product Specific Terms and Conditions and reserves the right to do so in its absolute discretion, acting reasonably, at any time. Any changes will be posted on the Website(s).
1.6. The Farewell Guide reserves the right to reject any Order Form and/or refuse to enter into a Contract or provide any Services to a third party at its absolute discretion, including where it believes:
a. that party is not providing the services of a Funeral director, Online funeral director or prepaid funeral seller (as determined by The Farewell Guide's advertising criteria); or
b. that the quality of its Content is not or will not be of a professional standard commensurate with that of its Members generally.
2. Services
2.1. Subject to these Member Terms and Conditions and any relevant Product Specific Terms and Conditions, The Farewell Guide (or any Group Company as The Farewell Guide may determine) will provide the Member with the Services in accordance with the Order Form.
2.2. The Farewell Guide may vary the Services from time to time at its absolute discretion and the Member shall be notified of any such variations where necessary. Any changes will be posted on the Website(s).
3. Content and Obligations
3.1. The Member warrants and represents that:
a. it is a Funeral director, Online Funeral director or Developer and that it does not act as a consumer in relation to the Contract;
b. any individual who has signed and/or otherwise agreed to these Member Terms (as updated from time to time) on its behalf has the requisite corporate authority to contract on behalf of that Member;
c. Content will comply with all applicable laws (including, but not limited to, the Equality Act 2010), regulations and codes of practice in the United Kingdom and any compliance guidelines published or made available by The Farewell Guide from time to time, will not be defamatory, misleading, discriminatory or infringe any copyright, trade mark or other intellectual property rights or rights of any third party whatsoever and will not contain any Personal Data;
d. any Video Content will:
be of a good quality in The Farewell Guide's reasonable opinion and comply with the Video Content Criteria;
only contain images related to the relevant funeral home;
not contain telephone numbers or email addresses other than The Farewell Guide and the approved membership contact details;
not contain any Personal Data;
not contain any promotion of the Member, except for its own logo; branch information, pricing and team members.
For the avoidance of doubt, Video Content displayed on the Member's own profile page may contain promotion of other services that the Member provides;
e.g any Image Content will:
be of a good quality in The Farewell Guide's reasonable opinion and comply with the Image Content Criteria;
only contain the Member's profile photograph(s) or images related to the relevant funeral home;
not contain telephone numbers or email addresses other than The Farewell Guide contact details and the members funeral homes;
not contain any Personal Data;
not contain any promotion of the Member; and
not contain any advertisements of any other products or services of the Member or any third parties;
f. it is responsible for the integrity of the Content which is in all respects true, complete and accurate to the best of the Member's knowledge and belief and the Member shall promptly update or correct Content on becoming aware of any errors or inaccuracies and shall provide such assistance as The Farewell Guide shall reasonably require to identify and remedy any unauthorised use of Content;
g. within no more than 3 Business Days of: update pricing; or funeral home details, the Member will either alter microsite and directory details in the member portal provided to the member via The Farewell Guide member centre so that the The Farewell Guide’s information is appropriate and up to date on the Website(s) or will remove the funeral branch, if a user complains of incorrect information. The Farewell Guide reserves the right to remove the branch and it will no longer be displayed on the Website(s);
h. it has the authority to market the funeral branch in the Content;
i. it holds all necessary authorities, consents and licences necessary to use, display, reproduce, publish the Content and has authority to and grants The Farewell Guide (and its Group Companies) a licence of the Content on the terms set out in clause 3.2;
j. it has read and will abide by all notices posted on the Website(s) from time to time that are relevant to the provision of the Services;
k. each of its branch offices will only upload details of funeral services they have received instructions for specifically at each branch office location, and that no branch office will upload details of funerals and packages originating from any other branch office location;
l. it shall not use The Farewell Guide's name, the name of any Group Company or any Logos, trade or services marks of The Farewell Guide or the Group in a defamatory or derogatory manner or in any way that might bring The Farewell Guide, the Group or its directors or employees into disrepute nor shall the Member misuse or deface (or allow to be misused or defaced) any Marketing Materials provided to it;
m. it will abide by any applicable industry code of conduct, recommendations or guidelines issued by any relevant trade organisation, including the Financial Conduct Authority (FCA), National Association of Funeral Directors (NAFD) and the British Institute of Funeral Directors (BIFD), and will abide by all applicable laws and regulations applying to or affecting Members including, but not limited to, Consumer and Protection from Unfair Trading Regulations 2008 protecting consumers from unfair or misleading trading practices, and banning aggressive sales tactics;
n. it will provide a contactable telephone number and shall ensure that the majority of calls made to that telephone number are answered in person. Where a trackable telephone number has been allocated to the Member by The Farewell Guide, the Member will use this number to enable The Farewell Guide to effectively monitor Leads delivered to the Member and take no actions that would interfere with such monitoring, and the Member agrees that The Farewell Guide and its suppliers may record all telephone calls for the purposes of monitoring Leads delivered or replaying Leads to Members; and
o. it shall ensure that only its authorised persons have access to the Services and the Upload Systems and that where it provides Content via the Upload Systems it shall only do so in a format compatible with any technical specifications issued by The Farewell Guide from time to time. The member agrees to use this format to display details of the property only, as laid out, and not to use these areas to advertise ancillary company information.
p. all regulated and appointed representatives must follow protocol and adhere by the authority guidelines when contacted any user from The Farewell Guide. The Farewell Guide will not be monitoring product suitability for any prepaid product and the members
3.2. The Member grants The Farewell Guide and the Group a non-exclusive, royalty free, perpetual licence to copy, reproduce, display, sell, publish, adapt and otherwise use the Content or data or other information derived therefrom for any purpose whatsoever (including entering into agreements with third parties for the provision of the Content or data derived therefrom). This licence shall survive termination of the Contract, but (for the avoidance of doubt) shall have no effect on the Member's rights (or its licensor's rights, as applicable) in respect of such Content or data, save to the extent specified herein. The Member agrees that The Farewell Guide and any Group Company may, but shall not be required to, identify the Member as the source of the Content on the Website(s) or in any other medium through which the Content or any derivative thereof is published or displayed.
3.3. The Farewell Guide:
a. may in its absolute discretion, at any time, remove, cause to be removed or decline to display any Content on the Website(s) which fails to comply with the terms of this Contract, and shall notify the Member of such decision either prior to, or at the time of, the relevant Content being removed or rejected;
b. may without prejudice to The Farewell Guide's right as set out in clause 3.3(a) above, require the Content to be amended at any time if The Farewell Guide considers or has reason to believe that the Member is in breach of the Contract or any applicable law or regulation or where it deems in its absolute discretion the Content to be of poor quality in terms of presentation, information provided or otherwise; and
c. reserves the right to charge the Member for additional fees or in a manner it deems appropriate or on a per funeral basis if The Farewell Guide has reason to believe that Content uploaded by any of the Member's branch offices is in breach of clause 3.1(k) above.
3.4. The Member acknowledges and agrees that:
a. it will continue to be bound by these Member Terms irrespective of whether:
the individual who has signed and/or agreed to the Member Terms on its behalf subsequently ceases to be employed or otherwise engaged by the Member or subsequently ceases to be authorised to act on behalf of the Member; or
the whole or substantially whole of the Member's assets are sold or transferred to a different legal entity;
b. neither The Farewell Guide nor any Group Company shall be under any obligation to monitor or censor the Content that appears on the Website(s) but The Farewell Guide reserves the right for itself (and the Group) to do so;
c. neither The Farewell Guide nor any Group Company is responsible for any error or omissions in any Content;
d. as part of the Services the Member may be provided with access to data including that derived from the content and data provided by The Farewell Guide's Members and other third parties. The Farewell Guide takes reasonable care to ensure that such data is accurate and up to date but makes no representation or warranty about the accuracy or completeness of such data and the data is not intended to be, and must not be treated by a Member as, comprehensive but an aggregation of the content and data available to The Farewell Guide at the time of provision and available to the Member in accordance with its level of membership;
e. technological failure may impede the provision of the Services or prevent access to all or any part of the Content displayed on the Website(s) or to the Upload Systems. The Farewell Guide makes no representation or warranty that the Website(s), the Services, the Content or the Upload Systems will be accessible or available at all times, or that the whole or any part of the Website(s), Services, the Content or Upload Systems will be free from error and while The Farewell Guide will make reasonable endeavours to notify the Member in advance, it may suspend temporarily or alter the operation of the Website(s), Services or the Upload System without notice to the Member;
f. it is responsible for and will pay all telecommunications and internet access charges incurred by it when using the Website(s);
g. transmission of data over the internet can be subject to delays and errors and can cause corruption of data for which neither The Farewell Guide nor any Group Company shall be responsible;
h. from time to time The Farewell Guide shall be entitled to increase the fees payable by the Member in the event that, following an assessment by The Farewell Guide, it is determined by The Farewell Guide that the number of branches displayed on the Website on behalf of the Member has increased such that the number of branches or funeral request exceeds the average for Members of a similar type. In assessing the number of funeral and the applicable average for these purposes:
a funeral director's funerals (and those of other funeral directors) shall be assessed on a per-branch basis by reference to an appropriate geographical area;
an online funeral director’s funerals shall be assessed by reference to appropriate geographical areas;
and in any event an assessment will be made by reference to any relevant guidelines issued by The Farewell Guide from time to time. Any increase in fees will be calculated on either a per-funeral basis so as to fairly reflect the increase in the volume of the Member's funerals;
i. The Farewell Guide may limit the number of photographs that may be displayed by the Member to 8 images per branch;
j. in providing the Services, and in order to provide information about other products and services, The Farewell Guide and the Group Companies may, unless otherwise agreed in writing by The Farewell Guide and the Member, contact the Member by post, telephone, electronic means, including e-mail and other electronic media and the Member shall maintain a valid working e-mail address for each of its branch offices, head offices, regional offices and development offices and shall immediately notify the Company of any change of e-mail addresses;
k. it shall for the duration of the Contract, take reasonable steps to promote the Website(s) to its customers and display any Marketing Materials provided by The Farewell Guide at its premises, provide a link on its website to the Website(s) and include the Logo in its sales and advertising materials. For the purpose of carrying out these obligations only, The Farewell Guide grants the Member a non-exclusive licence for the duration of the Contract to use, display and copy the Logo, The Farewell Guide name and any trade or services marks used by The Farewell Guide or the Group and copyright (or other intellectual property rights) contained in the Marketing Material; and
l. all intellectual property rights in the Services, technology supporting the Services (including the Upload System) and the Website(s) vest in The Farewell Guide and/or its licensors/sub-contractors and that the Member has no rights in, or to, such intellectual property other than the right to use the same in accordance with the Contract. For the avoidance of doubt, save to the extent otherwise specified in the Contract, all intellectual property rights in the Content shall remain vested in the Member (or its licensors, as applicable).
3.5. Any third party, purporting to act as agent for or on behalf of a prospective Member, contracting with The Farewell Guide for the provision for Services warrants and represents that it has the full and valid authority of that prospective Member to bind it and to the extent that:
a. that third party exceeds its authority; and/or
b. the prospective Member refuses to such pay any Fees or charges,
that third party shall be liable, on an indemnity basis, for all Fees and any other charges due hereunder.
3.6. The Member shall not publish, disclose, reproduce or create any derivative works from any information obtained pursuant to the Member's use of the Services unless expressly agreed in writing by The Farewell Guide.
3.7. The Member shall promptly notify The Farewell Guide if there is any increase or decrease in the number of branch offices operated by the Member.
3.8. The Member shall promptly notify The Farewell Guide in writing in the event:
a. they no longer offer funeral director services; or
b. it decides that a Branch should no longer be listed for any reason.
4. Fees
4.1. Subject to any express terms in the Order Form, Fees (plus VAT and any other taxes or duties thereon) and any other charges due hereunder shall be paid by the Member in accordance with these Member Terms and Conditions.
4.2. The Farewell Guide (or any Group Company as The Farewell Guide may determine) shall invoice the Member monthly in advance (or in arrears for Services provided either on a "one-off basis" or on a "Pay per Lead" basis) on or around the 1st day of each month and the invoice shall become payable 14 calendar days after the invoice date.
4.3. The Member shall pay the Fees to The Farewell Guide by direct debit (or by such other method as may be agreed in writing by The Farewell Guide) on the due date to such account as The Farewell Guide may from time to time advise and where payment is to be made by direct debit the Member hereby authorises The Farewell Guide (or a Group Company on its behalf) to collect the payment on the due date. A Force Majeure Event shall not relieve a party of its duty to pay the Fees as they fall due under this Contract up to the date of termination and no refunds of Fees paid in advance shall be payable as a result of a Force Majeure Event.
4.4. If the Member fails to pay any amount due to The Farewell Guide (or any Group Company) by the due date for payment, then:
a. The Farewell Guide on behalf of itself and the Group reserves the right to charge interest on any outstanding amounts at the rate of 4% per annum above HSBC Bank Plc's base lending rate in force from time to time (or if the rate is zero or below,4%) or such higher amount as may be permitted by statute from the due date until settlement of the outstanding sums or discharge of the debt; and
b. without prejudice to any other right or remedy available to The Farewell Guide, The Farewell Guide shall be entitled to terminate the Contract or suspend provision of the Services (in accordance with clause 7.4 or 7.6 respectively), remove any reference or prevent access to the Content submitted to the Website(s) and/or prevent access to Lead Content and any other data generated in connection with the Member's use of the Services until payment of all outstanding Fees and any associated charges is made in full.
4.5. The Farewell Guide reserves the right to charge the Member its reasonable administration costs in dealing with any failed payments and/or its costs in relation to pursuing outstanding amounts (including legal fees and expenses).
4.6. The Farewell Guide reserves the right to require the Member to pay a deposit before making the Services available to the Member. If a deposit is required, it shall be repaid by The Farewell Guide to the Member on termination of the Contract, subject to The Farewell Guide being permitted to offset any amounts due from the Member under the Contract against any such deposit repayment.
4.7. The Farewell Guide reserves the right to charge a monthly administration fee of £5 plus VAT on any account where payments are not made by direct debit.
4.8. The Farewell Guide reserves the right to charge Members an administration fee of £100 plus VAT per branch or branch equivalent (in the case of a funeral director or Online Funeral Director respectively) if having terminated one Contract with The Farewell Guide they wish to enter into another Contract with The Farewell Guide or the Group within 12 months of the termination.
4.9. The Farewell Guide does not guarantee the quality or quantity of Leads it provides to its Members. No refunds or credits will be given by The Farewell Guide for failure to provide a certain number of Leads.
4.10. Where an Initial Term, Minimum Term or Renewal Term applies, The Farewell Guide reserves the right to increase the Fees at the end of the Initial Term and each Renewal Term by giving 45 days' notice to the Member but, where such notice is not given, the parties agree that the Fees shall automatically increase at the end of the Initial Term or Minimum Term and each Renewal Term in line with the percentage increase in the UK Retail Prices Index since the Fees were last set.
4.11. Where no Initial Term, Minimum Term or Renewal Term applies, without prejudice to the generality of clause 1.3, and in addition to clauses 3.3(c) and 3.4(h), The Farewell Guide reserves the right to vary its Fees and any structure of charges in place from time to time subject to providing 30 calendar days' written notice to the Member. Any Services provided after changes have taken effect will be subject to the relevant new Fees and/or new charging structure.
4.12 Members signed up to the Pay Per Enquiry package will only pay Fees when they have accepted a Lead.
5. Liability
5.1. All warranties and representations (whether express or implied) provided by The Farewell Guide or any Group Company are, to the fullest extent permitted by law, excluded from the Contract.
5.2. Nothing in any Contract shall exclude or limit either party's liability for:
a. death or personal injury caused by that party's negligence;
b. fraud or fraudulent misrepresentation; or
c. any other liability which cannot be excluded or limited by law.
5.3. Subject to clause 5.2:
a. The Farewell Guide and the Group Companies shall only be liable for direct losses arising out of or in connection with the Contract; and
b. The Farewell Guide and the Group Companies' total liability to the Member (whether in contract, tort or otherwise) arising out of or in connection with the Contract shall be limited to the aggregate amount of Fees (excluding VAT) paid by the Member in the 3 months immediately preceding the month in which the Member incurred the loss resulting in liability of The Farewell Guide or the relevant Group Company. This liability may be further limited by the relevant Product Specific Terms and Conditions in respect of any claim relating to Services to which those Product Specific Terms and Conditions apply.
5.4. Neither The Farewell Guide nor any Group Company shall be liable for any liability caused by:
a. any breach of the Contract by the Member; or
b. the Member using, altering or manipulating any data provided by The Farewell Guide or changing the manner in which such data are represented.
5.5. The Member shall indemnify The Farewell Guide (and the Group) against all losses and expenses incurred by them in relation to any third party claim arising from the Content or misuse by the Member of the Services, except to the extent that the foregoing results directly from the negligence of The Farewell Guide (or any Group Company).
5.6. The Member agrees that this clause 5 is fair and reasonable.
6. Confidentiality
6.1. Subject to clause 6.2, a party shall disclose information not in the public domain relating to the other only if:
a. the person to whom the disclosure is made needs the information in order for the disclosing party to carry out its obligations under this Agreement; or
b. the law so requires.
6.2. The Farewell Guide will be permitted to issue announcements and releases relating to the Contract, the transactions contemplated by it, the identity of the Member and the relationships between the parties without the prior consent of the Member.
7. Termination and effect of termination
7.1. Each Contract shall commence in accordance with clause 1.1 and shall continue until terminated in accordance with these Member Terms and Conditions. Save where an Initial Term or Minimum Term applies, the Contract shall continue for the Initial Term or Minimum Term (and if both apply for the longer of the two) (unless terminated in accordance with these Member Terms and Conditions), after which the Contract shall automatically renew for successive periods of 12 months (each a "Renewal Term").
7.2. Termination
a. During an Initial Term, Minimum Term or Renewal Term, The Farewell Guide or the Member shall only be entitled to terminate the Contract for convenience on at least one month’s notice, such termination to take effect on expiry of the Initial Term or Minimum Term (and if both apply on expiry of the last to expire of the two) or Renewal Term (as applicable). For example, if a Contract starts on 02nd January 2024 and has an Initial Term of 12 months, a Member cannot terminate the Contract until 03rd January 2025. In order to terminate, the Member must serve written notice on or before 02nd December 2024.
b. Where no Initial Term or Minimum Term is specified in the Order Form, The Farewell Guide or the Member shall only be entitled to terminate the Contract for convenience on at least one month’s notice to the other party, such notice to expire at the end of a calendar month. For example, a Member may serve notice to terminate on 16 April 2024 but that notice shall not take effect until 31 May 2024 (being the last day of the calendar month following service of the notice).
7.3. If The Farewell Guide receives notification from a Member under clause 3.8, the Member may terminate the part of its Contract relating to the applicable Branch (but no other part of its Contract) at the end of the calendar month in which The Farewell Guide receives the notification.
7.4. Either party may terminate the Contract:
a. immediately by giving written notice to the other party if the other party persistently breaches the Contract; or
b. on 30 calendar days' written notice to the other party if the other party is in material breach of this Contract save that if the other party remedies the breach to the satisfaction of the party which served the termination notice before the expiry of the 30 day notice period, the notice of termination shall be revoked (for the avoidance of doubt, any failure by the Member to pay any amount due to The Farewell Guide on the due date for payment shall be considered a material breach for the purposes of this clause 7.4(b)).
7.5. The Farewell Guide may terminate the Contract on 30 calendar days' written notice to the Member in the event that, in The Farewell Guide's reasonable opinion, the Member's financial position is such that the Member's capability to adequately fulfil its obligations under the Contract is in material jeopardy.
7.6. Without limiting their other rights, The Farewell Guide (or any Group Companies on its behalf) may immediately suspend the Services or access to or temporarily remove any Content from the Website(s) (or cause any of those things to occur) if the Member breaches the Contract and fails to rectify that breach immediately following receipt of notice from The Farewell Guide requesting it to do so.
7.7. On termination of the Contract for whatever reason:
a. all Fees and any other sums due from the Member to The Farewell Guide (or any Group Companies) shall immediately become payable and the Member shall immediately pay The Farewell Guide such sums in full;
b. the licences referred to in clause 3.4(l) (or contained in any Product Specific Terms and Conditions) shall immediately terminate;
c. the Member shall immediately cease using the Services and permanently delete any access passwords for the Services or the Upload Systems; and
d. without prejudice to clause 9.5(f), the Member's access to Content and all other data generated in connection with the Member's use of the Services shall cease;
e. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract, which existed at or before the date of termination shall not be affected; and
f. any provision of the Contract which is expressed as surviving the Contract or which is required to survive the Contract to give effect to it shall survive termination.
8. Force majeure
Neither party shall breach the Contract by reason of any delay or failure in performance resulting from a Force Majeure Event. However, if the Force Majeure Event continues to cause a party to need relief from the impact of its delay or failure for one month or longer, the other party may terminate the Contract immediately by giving notice to the affected party.
9. Data Protection
9.1. If Leads passed to the Member by The Farewell Guide contain Personal Data (the "Leads Personal Data"), the Member acknowledges that it will be the Controller of the copy of the Leads Personal Data that it receives and shall comply with the Data Protection Legislation in relation to the Leads Personal Data.
9.2. The Member warrants and represents that, if it provides The Farewell Guide directly or indirectly with Personal Data relating to any individual it shall have obtained that individual's consent to (i) process, use and store that Personal Data for the purpose of providing of the Services and (ii) transmit that Personal Data to The Farewell Guide and other third parties (including those in countries outside the European Economic Area that do not maintain adequate data protection standards) to process, use and store for the purpose of providing of the Services.
9.3. Clauses 9.3 to 9.7 (inclusive) apply with respect to The Farewell Guide only. The Member and The Farewell Guide acknowledge that, for the purposes of the Data Protection Legislation, the Member is the Controller and The Farewell Guide is the Processor of the copy of the Personal Data specified in the table below that The Farewell Guide hosts on The Farewell Guide on behalf of the Member ("The Farewell Guide Data"). The categories of The Farewell Guide Data to be processed by The Farewell Guide and the processing activities to be performed under the Contract are:
Subject matter:
Provision of Personal Data hosting as part of the The Farewell Guide service
Duration:
Duration of the provision of the The Farewell Guide service
Nature and purpose of processing:
The Farewell Guide provides the The Farewell Guide service to Members. The Farewell Guide service enables Members to store and view lead information and call recordings, each of which includes Personal Data.
Types of personal data being processed:
Lead information and call recordings only
Categories of data subjects:
Users of the Website(s) who submit Leads to Members using the enquiry form on the Website(s) or using telephone numbers provided on the Website(s)
9.4. The Member acknowledges that The Farewell Guide may have access to other copies of the information comprised in the The Farewell Guide Data (including any Personal Data) and that The Farewell Guide is the Controller with respect to such other copies. Accordingly, these clauses 9.3 to 9.7 (inclusive) do not apply with respect to such other copies.
9.5. Subject to clause 9.4, The Farewell Guide agrees:
a. to process the The Farewell Guide Data only in accordance with the Member's written instructions, unless required to do otherwise by UK or EU law, in which case The Farewell Guide shall inform the Member of that legal requirement (unless prohibited from doing so by law);
b. to ensure that all its staff involved in processing the The Farewell Guide Data are under appropriate duties of confidentiality;
c. to implement appropriate technical and organisational measures to ensure a level of security for the The Farewell Guide Data appropriate to the risks associated with The Farewell Guide's processing of the The Farewell Guide Data;
d. to assist the Member by appropriate technical and organisational measures to enable the Member to respond to requests from Data Subjects exercising their Data Subject Rights;
e. to provide the Member with reasonable assistance in ensuring compliance with the Member's obligations under Articles 32 to 36 (inclusive) of the GDPR;
f. on termination or expiry of the contract, to delete or return (at the Members option) all existing copies of the The Farewell Guide Data in its control or possession, in accordance with the terms of the The Farewell Guide Data Retention Policy current at the time of the termination or expiry of the contract, unless retention is required by UK law or The Farewell Guide has a lawful basis on which to retain such copies;
g. to make available to the Member all information in its possession or control that is necessary to demonstrate The Farewell Guide's compliance with its obligations under this clause 9.5; and
h. to allow the Member, on reasonable prior written notice and during business hours, reasonable access to The Farewell Guide's records (and reasonable related assistance) to enable the Member to verify The Farewell Guide's compliance with itsobligations under this clause 9.5.
9.6. The Member agrees that The Farewell Guide may engage other processors (each a "Sub-Processor") of the The Farewell Guide Data, provided that The Farewell Guide shall ensure that any Sub-Processor is bound by obligations the same as those in these clauses 9.3 to 9.7 (inclusive) with respect to the The Farewell Guide Data and provided that The Farewell Guide remains liable to the Member for any breach of these clauses 9.3 to 9.7 (inclusive) by the Sub-Processor.
9.7. With respect to a request or audit under clauses 9.5(g) or 9.5(h), The Farewell Guide shall inform the Member immediately if, in its opinion, the Member's instruction infringes the GDPR or another applicable UK or EU data protection law.
10. Data
10.1. The Farewell Guide has access to the following data, which is provided in connection with, or is otherwise generated as a result of, the provision and use of the Services:
a. contact details of Members;
b. the Content, which is used by The Farewell Guide in the provision of its Services for the Member and which may also be provided on an aggregated basis to third parties by The Farewell Guide in its sole discretion for The Farewell Guide's wider business purposes, including (without limitation), for the purpose of increasing visitor traffic to the Website;
c. recordings of Lead telephone calls;
d. information relating to Leads as detailed further in the The Farewell Guide Privacy Policy; and
e. cookie data, as detailed further in the The Farewell Guide Cookie Policy.
10.2. Members shall not have access to any of The Farewell Guide's business generated information.
11. Content Display and Additional Services
11.1. Subject to the payment of all applicable Fees, Member's properties are initially displayed as a result of searches carried out by Website users by reference to one or more objective criteria which are extracted from the Content. The Farewell Guide reserves the right to change the objective criteria which are used to order the initial search results from time to time. Following a search by a Website user, each Website user may adjust the order in which funeral directors are displayed according to their own unique requirements.
11.2. If a Member wishes to improve the visibility of their branch, The Farewell Guide offers a range of add-on services to facilitate this and which may be purchased at an additional cost to the Member's standard monthly Fee. The nature of these add-on services changes and develops over time and so to find out more about the options which are currently available, Members should contact their The Farewell Guide Account Manager.
12. Ancillary Services
In addition to advertising funeral directors, The Farewell Guide provides a range of ancillary services via the Website which complement this core offering. The Farewell Guide offers Members the opportunity to advertise ancillary services on the Website for an additional cost or as part of their subscription package. Members can contact their The Farewell Guide Account Manager for more details of the options available.
13. Compliance with Relevant Requirements
13.1. The Member shall:
a. comply with the Relevant Requirements;
b. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
c. have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 13.1(b), and will enforce them where appropriate;
d. promptly report to The Farewell Guide any request or demand for any undue financial or other advantage of any kind received by the Member in connection with the performance of the Contract;
e. immediately notify The Farewell Guide (in writing) if a foreign public official becomes an officer or employee of the Member and the Member warrants that it has no foreign public officials as officers or employees at the date of the Contract);
f. on The Farewell Guide's request, certify to The Farewell Guide in writing signed by an officer of the Member, compliance with this clause 13 by the Member. The Member shall provide such supporting evidence of compliance as The Farewell Guide may reasonably request.
13.2. Breach of this clause 13 shall be deemed a material breach.
13.3. For the purpose of this clause 13, the meaning of "adequate procedures" and "foreign public official" and whether a person is "associated" with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
14. Feedback and Complaints Procedure
14.1. The Farewell Guide has a process in place to deal with concerns which Members may have, including concerns regarding the Contract or the Services.
14.2. To contact The Farewell Guide with any concerns, the Member should e-mail hello@thefarewellguide.co.uk. The Farewell Guide will endeavour to acknowledge the e-mail within 2 Business Days of its receipt and, where necessary, will request any additional information as The Farewell Guide may deem necessary to investigate the concern. Each complaint will be investigated and assessed by The Farewell Guide as soon as possible thereafter.
14.3. In the event that the Member is unhappy with the outcome of The Farewell Guide's investigation of the complaint, the Member is entitled to email details of the complaint to hello@thefarewellguide.co.uk, marked for the attention of the Head of Customer Support or otherwise contact the Head of Customer Support in writing at the following address: The Farewell Guide, The Fuel Tank, Creative Road, London SE8 3LE.
14.4. If the Member is dissatisfied for any reason with the final decision of the Head of Customer Support, the Member is entitled to refer their complaint for mediation by an appropriate external mediator. For these purposes, an appropriate external mediator would be one who The Farewell Guide deems to be suitably qualified and who is registered with either Independent Mediators or IPOS Mediation. The apportionment of any costs incurred in relation to the mediation process shall be determined in good faith between The Farewell Guide and the Member, on the basis of the mediator's recommendation.
14.5. The Farewell Guide shall not be obliged to consent to mediation in circumstances where a Member has historically made repeatedly unsuccessful mediation attempts, whether in respect of the same or a prior complaint. In the event that a complaint is referred for mediation, the parties agree to participate in such mediation in good faith.
15. General
15.1. Nothing in these Member Terms and Conditions or any Product Specific Terms and Conditions is intended to establish an exclusive arrangement between the Member and The Farewell Guide (or any Group Companies) nor any partnership or appoint either party the agent of the other, or otherwise authorise either party to commit the other in any way whatsoever. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
15.2. The Member may not assign or otherwise create any interest in any of its rights and obligations under the Contract without the prior written consent of The Farewell Guide.
15.3. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.3 shall not affect the validity and enforceability of the rest of the Contract.
15.4. No failure or delay by The Farewell Guide or any Group Company provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the future exercise of that or any other right or remedy. No single or partial exercise of any right or remedy by The Farewell Guide or any Group Company shall preclude or restrict the further exercise of that or any other right or remedy.
15.5. Any notice given to party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or by email to its nominated email address or webform as specified on the Order Form. Any notice will be deemed to have been received (i) if delivered by hand, on signature of a delivery receipt, (ii) if sent by pre-paid first-class post or other next working day delivery service, on the second Business Days after posting or at the time recorded by the delivery service, or (iii) if sent by email, at the time of transmission. This clause 15.5 does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.
15.6. Except for the Group Companies (who may enforce relevant provisions of the Contract), a person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.7. The construction, validity and performance of the Contract and all non-contractual obligations arising from or connected with the Contract shall be governed by English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts to resolve any dispute between them.