These terms form a contract between you, the Customer (you) and us, Leaf.FM Ltd, a company registered in England and Wales (company number: 09137221) at 2nd Floor 14 Blandford Square, Newcastle Upon Tyne, England, NE1 4HZ. It describes how we will work together and other aspects of our business relationship. If you purchase a Subscription on behalf of a Client, the terms “you” and “your” as used throughout the terms, apply to both you and the Client, as applicable.
It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide access to the Leaf Grow platform unless you agree to them and by using the Leaf Grow platform, you are agreeing to these terms.
In order to use the Leaf Grow platform you need to (1) be 18 or older, or be 13 or older and have your parent or guardian’s consent, (2) maintain an active Facebook profile with a personal or business Facebook Ads Manager account attached to it together with live payment facilities, and (3) have the power to enter into a binding contract with us.
We, may, at our discretion, periodically update these terms. When we make material changes we will notify you in advance and your continued Subscription after the changes have been made will constitute your acceptance of these changes.
1. Definitions and Interpretation
1.1. The definitions and rules of interpretation in this clause apply in these terms:
Means the laws of any member of the European Union or any laws applicable to Leaf.fm with regard to you and the processing of personal data or otherwise;
Shall mean any Intellectual Property which is generated or first reduced to practice by Leaf.fm directly as a result of the work undertaken in accordance with these terms;
Shall mean any Intellectual Property, excluding any Background Intellectual Property not owned by that party, and excluding Arising Intellectual Property owned or controlled by any party prior to commencement of or independently from the Subscription, and which the owning party contributes or uses during the course of the Subscription;
Day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Your marketing, engagement and promotional campaign using tools such as Facebook and other Third Party Application providers, live streaming, email data capture and app downloads built by you on the Leaf Grow platform;
The individual or group who is, or whose content is, the subject of the Campaign;
Any Intellectual Property Rights (as defined below) owned by the Client (or their label or management team or other party as applicable), including but not limited to brand, name, voice, biography, image, likeness, slogan, logo, artwork, videos, sound, press quotes, signature and recordings of interviews;
Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 7;
Data controller, data processor and personal data
Have the meanings as set out in the Data Protection Legislation;
Data Protection Legislation
The Data Protection Act 1998 up to and including 25 May 2018, the EU General Data Protection Regulation 2016/679 (GDPR) thereafter and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and any successor legislation to the GDPR or the Data Protection Act 1998;
Leaf Grow platform
The plan entered into by you which provides to you access to the Leaf Grow platform;
the monthly payment made by you in advance to use to access the Leaf Grow platform as shown on the Leaf Grow platform from time to time.
1.2. Clause headings shall not affect the interpretation of these terms.
1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5. A reference to a statute or statutory provision is a reference to it as it is in force as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision.
1.6. A reference to writing or written includes email.
1.7. References to clauses are to the clauses of these terms.
2.1. Leaf.fm will provide to you access to the Leaf Grow platform in accordance with these terms. We will try to make the Leaf Grow platform available 24 hours a day, 7 days a week except for planned down-time maintenance.
2.2. After you have set your up Subscription you will build and manage your own Campaign.
2.3. Leaf.fm encourage you to carefully and diligently review all Campaigns set up on the Leaf Grow platform via Facebook Ads Manager or when using any other Third Party Application providers to ensure that they are correct prior to their launch.
2.4. Leaf.fm reserve the right to enhance and improve the Leaf Grow platform if necessary to comply with any Applicable Laws or regulatory requirement, or at any time if the amendment will not materially affect the nature or quality of the Leaf Grow platform.
2.5. Leaf.fm do not guarantee any results nor do they make any predictions about the success of your Campaigns. Our estimated audience size, is just that, an estimate, which is sourced using real time Facebook data. Our resources are helpful guides but should not be construed as expert advice.
2.6. You remain responsible at all times for the direct payment of any adverts purchased through the Leaf Grow platform to Facebook Ads Manager or any other Third Party Application providers in order to run the Campaign.
2.7. You agree that Leaf.fm may publicise their relationship with you with a brief description of your Campaigns, unless you confirm otherwise, in writing.
2.8. Leaf.fm shall not under any circumstances be responsible or liable for any costs arising from any defects or bugs in the Leaf Grow platform, Facebook Ads Manager or any other Third Party Application providers utilized by you in order to deliver your Campaigns.
2.9. Leaf.fm shall, as soon as reasonably practicable, notify you of any defect, bug or similar on the Leaf Grow platform which may have an adverse affected on your Campaigns. Leaf.fm shall use reasonable endeavours to notify you of any issues and to notify you when the issue has been rectified.
3. Your Obligations
3.1. You shall provide Leaf.fm with:
3.1.1. all necessary co-operation in relation to these terms; and
3.1.2. complete and accurate information including registration and payment information.
3.2. You shall:
3.2.1. comply with all Applicable Laws and regulations with respect to your activities under these terms;
3.2.2. follow all reasonable instructions of Leaf.fm;
3.2.3. carry out all other responsibilities set out in these terms in a timely and efficient manner;
3.2.4. use reasonable endeavours to prevent any unauthorised access to, or use of, the Leaf Grow platform and notify Leaf.fm promptly of any such unauthorised access or use; and
3.2.5. allow Leaf.fm the right to monitor and review each Campaign, if they choose to, to ensure that the Campaign complies with these terms.
3.3. You shall not:
3.3.1. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Leaf Grow platform; or
3.3.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Leaf Grow platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
3.3.3. access all or any part of the Leaf Grow platform in order to build a product or service which competes with the Leaf Grow platform; or
3.3.4. subject to clause 18, transfer, temporarily or permanently, any of its rights under these terms; or
3.3.5. attempt to obtain, or assist third parties in obtaining, access to the Leaf Grown platform, other than as provided under this clause 3; or
3.3.6. attempt, for a period of six (6) months, to solicit or endeavour to entice away from Leaf.fm anyone employed by Leaf.fm.
4. Payment Terms
4.1. Your first Campaign is given to you free of charge as soon as you have registered via your Facebook account which sets up a Subscription on the Leaf Grow platform.
4.2. After your first Campaign, if you wish to launch subsequent Campaigns, you with then be asked for your payment details. The Subscription Amount will be automatically collected on a recurring monthly basis in advance from your chosen registered payment method.
4.3. Where you make a payment on a credit card it will be settled using a gateway provided by a third party. If you make an unjustified chargeback, then you will be liable to pay to Leaf.fm, within seven (7) days following written request:
4.3.1. an amount equal to the chargeback;
4.3.2. all third party expenses incurred by us in relation to the chargeback (including charges made by Leaf.fm’s bank or your bank/credit card company);
4.3.3. a reasonable administration fee; and
4.3.4. all Leaf.fm’s reasonable costs, losses and expenses incurred in recovering the amounts subject to the chargeback (including without limitation legal fees and debt collection fees).
4.4. VAT is payable in addition to the Subscription Amount. The relevant VAT amounts will be calculated via the payment gateway.
4.5. If you purchase a Subscription then change your mind for any or no reason, you can receive a full refund of monies less any transactional fees incurred paid within seven (7) days starting from the day you made the relevant payment (the “Cooling-off Period”). Refunds will not, however, be provided if you have started a Campaign at any time during the Cooling-off Period.
4.6. If you wish to receive a refund before the Cooling-off period is over, you must contact email@example.com.
4.7. Leaf.fm may change the Subscription Amount from time to time, and will communicate any price changes via the Leaf Grow platform in-app messaging and/or your registered email address unless you tell us otherwise.
4.8. You may cancel your Subscription at any time via your Leaf Grow platform account information or by notifying us by email at firstname.lastname@example.org. Cancelling your Subscription does not cancel the adverts created during the Campaigns and you will still be charged for the adverts by Facebook and any other Third Party Application providers which you may have used.
5. Intellectual Property
5.1. All Arising IP in or arising out of or in connection with the Subscription (other than Client IP) shall be owned by Leaf.fm.
5.2. All rights in Intellectual Property in or arising out of or in connection with any materials provided by you on behalf of the Client) shall be owned by you or the Client (as applicable).
5.3. Leaf.fm do not grant you or the Client any rights in its Background IP or Arising IP.
5.4. You grant Leaf.fm or shall procure the direct grant to Leaf.fm a fully paid-up, worldwide, non-exclusive, royalty-free licence to use Client IP for the purposes of fulfilling these terms and for the duration of the Subscription.
5.5. You shall indemnify Leaf.fm against all claims, costs and expenses which Leaf.fm may incur and which arise, directly or indirectly, from your breach of these terms, including but not limited to any claims brought against Leaf.fm alleging that any Client IP infringes copyright or other Intellectual Property rights of any third party anywhere in the world.
6. Data Protection
6.1. The parties acknowledge that for the purposes of the Data Protection Legislation and these terms, you as our Client, are the data controller and Leaf.fm is the data processor.
6.2. Without prejudice to the generality of clause 6.1, you:
6.2.1. warrant and represent that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Leaf.fm for the duration and purposes of these terms;
6.2.2. warrant and represent that all instructions given to Leaf.fm for processing of personal data are lawful and as a minimum include the nature and purpose of the processing, type of personal data and categories of data subjects to whom the personal data related; and
6.2.3. acknowledge that as data controller you are solely responsible for determining the lawful processing condition upon which it shall rely in providing instructions to Leaf.fm for the purpose of utilizing the Subscription.
6.3. Without prejudice to the generality of 6.1, Leaf.fm shall, in relation to any personal data processed in connection with the performance by Leaf.fm of its obligations as data processor under these terms:
6.3.1. process that personal data only on your written instructions unless Leaf.fm is required by any Applicable Laws. Where Leaf.fm is relying on Applicable Laws as the basis for processing personal data, Leaf.fm shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Leaf.fm from so notifying you;
6.3.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by you, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
6.3.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
6.3.4. not transfer any personal data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:
18.104.22.168. you or Leaf.fm has provided appropriate safeguards in relation to the transfer;
22.214.171.124. the data subject has enforceable rights and effective legal remedies;
126.96.36.199. Leaf.fm complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred;
188.8.131.52. Leaf.fm complies with reasonable instructions notified to it in advance by you with respect to the processing of the personal data;
6.3.5. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
6.3.6. notify you without undue delay on becoming aware of a personal data breach;
6.3.7. at your written direction, delete or return personal data and copies thereof to you on termination of these terms unless required by Applicable Law to store the personal data; and
6.3.8. maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and allow for audits by you or your designated auditor.
6.4. You provide consent for Leaf.fm to use sub-processors in the delivery of the Subscription Leaf.fm shall enter into a written agreement with such sub-processors incorporating terms which are substantially the same as those set out in this clause 6. As between you and Leaf.fm, Leaf.fm shall remain fully liable for all acts and omissions of any sub-processor appointed by it pursuant to this clause 6.4. Where required by law, Leaf.fm shall inform you of any intended changes concerning the additional or replacement of a sub-processor with access to personal data and give you the opportunity to object to such changes.
6.5. Either party may, at any time of not less than thirty (30) days’ notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certificate scheme (which shall apply when replaced by attachment to these terms).
7.1. Each party undertakes that it shall not at any time, and for a period of five years after termination of these terms, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 7.3.
7.2.Leaf.fm shall treat information provided by you regarding the Client as confidential, except as permitted by clause 7.3.
7.3. Each party may disclose the other party’s confidential information:
7.3.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with these terms. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 7.3; and
7.3.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.4. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these terms.
8. Limitation of liability and Indemnity
8.1. This clause 8 sets out the entire financial liability of Leaf.fm (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you and/or the Client:
8.1.1. arising under or in connection with these terms;
8.1.2. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms.
8.2. Except as expressly and specifically provided in these terms all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms.
8.3. Nothing in these terms excludes the liability of Leaf.fm for:
8.3.1. death or personal injury caused by Leaf.fm’s negligence; or
8.3.2. fraud or fraudulent misrepresentation; or
8.3.3. any other liability which it is not possible to exclude liability for under English law.
8.4. Subject to clause 8.1.2, Leaf.fm shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(i) loss (whether direct or indirect) of profits; or
(ii) loss (whether direct or indirect) of business; or
(iii) depletion of goodwill or similar losses (whether direct or indirect); or
(iv) loss (whether direct or indirect) of anticipated savings; or
(v) loss (whether direct or indirect) of goods; or
(vi) loss (whether direct or indirect) of contract; or
(vii) loss (whether direct or indirect) of use; or
(viii) loss (whether direct or indirect) or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages.
8.5. Leaf.fm’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms shall be limited to the Subscription Fee paid in any given month.
8.6. You are solely responsible for all material uploaded during each Campaign and you agree that if anyone brings a claim against Leaf.fm relating to the Campaign or any material therein, then, to the extent permitted by law, you will indemnify and hold Leaf.fm harmless from and against all damages, losses, and expenses of any kind (including all legal fees and costs) arising out of such a claim.
8.7. Leaf.fm do not manage your content and will not be responsible or liable for the suspension of any Campaign by Facebook Ads Manager or any other Third Party Application providers.
9. Third Party Applications
9.1 The Leaf Grow platform is integrated with third party applications, websites and other services (“the Third Party Applications”) which make available to you third party products and services.
9.2 Leaf.fm does not endorse these Third Party Applications nor are they responsible or liable for them. Your relationship with Third Party Applications providers will be governed by separate terms and conditions which you enter into with them.
10.1. Leaf.fm may terminate any Campaign or these terms in their entirety for convenience by providing you with fourteen (14) days’ notice, under these circumstances, Leaf.fm may at its sole discretion issue a refund.
10.2. Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other if:
10.2.1. either party suspend, or threatens to suspend, payment of their debts or are unable to pay their debts as they fall due or admits inability to pay their debts or (being a company or limited liability partnership) is deemed unable to pay their debts within the meaning of section 123 of the IA 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
10.2.2. either party commence negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.2.3. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up (being a company, limited liability partnership or partnership) of that party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction;
10.2.4. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over that party (being a company);
10.2.5. the holder of a qualifying floating charge over either party’s assets (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.2.6. a person becomes entitled to appoint a receiver over all or any of either party’s assets or a receiver is appointed over all or any of either party’s assets;
10.2.7. a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of either party’s assets and such attachment or process is not discharged within fourteen (14) days;
10.2.8. any event occurs, or proceeding is taken, with respect to either party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.2.1 to clause 10.2.7 (inclusive); or
10.2.9. either party suspend or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.3. Leaf.fm may terminate immediately by giving written notice if:
10.3.1. you commit a material breach of any term of these terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so; or
10.3.2. there is a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010).
10.4. If you fail to pay any Subscription Amount due under these terms you will not be able to launch or optimise any existing or new Campaigns;
10.5. For the purposes of clause 10.3.1, material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
10.5.1. a substantial portion of these terms; or
10.5.2. any of the obligations set out in clauses 3, 4, or 5 over the term of these terms. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
10.6. If Leaf.fm terminates these terms in accordance with clause 10.2, your Campaign will be terminated immediately. You shall receive no refunds under these circumstances.
10.7. If Leaf.fm terminates these terms in accordance with clause 10.3, you are not entitled to a refund.
11. Effect of Termination
11.1. On termination of these terms for any reason:
11.1.1. all licences granted under these terms shall immediately terminate;
11.1.2. Leaf.fm may destroy or otherwise dispose of any of your data in its possession unless Leaf.fm receives, no later than seven (7) days after the date of the termination of these terms, a written request for the delivery to you of the then most recent back-up of you data. Leaf.fm shall use reasonable commercial endeavours to deliver the back-up to you within thirty (30) days of its receipt of such a written request, provided that you has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Leaf.fm in returning or disposing of your data; and
11.1.3. 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.
12. Remember Us
Once your Campaign makes you a world famous superstar you agree to send us a signed photo for our wall of fame.
13. Force Majeure
Leaf.fm shall have no liability to you under these terms if it is prevented from or delayed in performing its obligations under these terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Leaf.fm or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Leaf.fm or sub-contractors, provided that the User is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15. Rights and remedies
Except as expressly provided in these terms, the rights and remedies provided under these terms are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision (or part of a provision) of these terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. Entire agreement
These terms, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into these terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms or not) relating to the subject matter of these terms, other than as expressly set out in these terms.
You shall not, without the prior written consent of Leaf.fm, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms. Leaf.fm may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
19. No partnership or agency
Nothing in these terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Third party rights
These terms do not confer any rights on any person or party (other than the parties to these terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.1. Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these terms, or such other address as may have been notified by that party for such purposes. Notices sent by email shall be to email@example.com for Leaf.fm and to the email address specified by you from time to time.
21.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission.
22. Governing law and Jurisdiction
These terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims) shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or its subject matter or formation (including non-contractual disputes or claims)