Updated: 1st March 2018
- Funeral Choice provides an online platform where individuals (Customers) who are looking to find and contact a funeral director (referred to here as the Partner) can search for a funeral director and make initial contact to discuss their needs
- The contractual provision of funeral products and services takes place outside of this online platform
- We help Customers understand what options they may require and provide an opportunity for them to view Partners in their area. Partners promote their business to Customers through a dedicated profile which can contain photos and a description of the partner’s offering. We encourage Customers to leave reviews of a Partner after a funeral to help build an online reputation over time.
- Partners who sign up to Funeral Choice agree to provide us with pricing for their services and products so that we can give Customers a comparable price for a simple funeral.
- Once a Customer has chosen a Partner we arrange a call between the two of you to discuss the arrangements and any special requirements.
- We charge a commission paid by the Partner when a confirmed funeral takes place between a customer and partner matched through our website or advice line.
- The Partner is solely responsible for providing the services agreed with the Customer.
- “Agreement” means this agreement which sets out the terms and conditions upon which Funeral Choice shall provide the Funeral Choice Services to the Partner and which comes into effect on the Effective Date;
- “Arrangement Call” means any call, or calls, between the Partner and the Customer following the submission of a Call-back Request or following the customer dialing a dedicated telephone number displayed on our site, the purpose of which is to discuss any matters in the typical course of arranging a funeral;
- “Call-back Request” means the submission by a Customer for a request for a call-back by a Partner in the form of email notification or any other means of notification at the discretion of Funeral Choice;
- “Commission” means the commission agreed which is payable by the Partner to Funeral Choice as shown in the Pricing Table;
- “Charges” means the costs or fees associated with the services and/or products invoiced to the Customer by the Partner as part of the provision of the Partner Services;
- “Customer” means any user of the website, any person who contacts a Partner via the Website or any person who purchases or receives the Partner Services;
- “DPA” means the Data Protection Act 1998 (as from time to time amended);
- “Effective Date” means the earlier of 1) the Partner beginning to receive the Funeral Choice Services and 2) if the Partner enters this Agreement by confirming their acceptance of the terms and conditions of this Agreement or, if the Partner enters this Agreement pursuant to a meeting or other direct communication with Funeral Choice – the date on which the Partner is sent a confirmatory copy of the terms and conditions of this Agreement from Funeral Choice (which will usually be by email);
- “Funeral Date” means the date on which the funeral is intended to, or has, occur(red) and, unless otherwise specifically agreed with the Customer, is the date on which cremation or interment occurs;
- “Funeral Choice” means Funeral Advisor Limited (also known as “Funeral Choice”), a company registered in England under company number 08768692 and whose registered office is at Funeral Choice, 4 King Edwards Court, King Edwards Square, Sutton Coldfield, B73 6AP;
- “Funeral Choice Services” means the benefits and services a Partner may receive from Funeral Choice, as set out in the Pricing Table, in return for paying the Commission;
- “Intellectual Property Rights” means all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright (including foreign language translation rights), design rights, database rights, rights in any domain names, registered designs, patents, trademarks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof). The above shall include, in relation to registerable rights, any applications made or rights to make applications in respect of any such rights;
- “Page(s)” means the internet page or pages and contents of the Partner’s designated section of the Website or Distribution Channels (including the Partner’s Funeral Choice “individual page” and each page for the Partner Services offered on the Website);
- “Partner Services” means the funeral goods and services, as well as any other goods or services, which the Partner is in the business of providing and supplying to Customers and which are marketed to the public by the Partner through use of the Funeral Choice Services;
- “Partner Content” means any information, documentation, equipment, software or other material (which may include the Partner name, logo and any other brand features and Intellectual Property Rights) which may be published on the Page(s) pursuant to this Agreement;
- “Pricing Table” means the pricing table at the bottom of this page which lists out each of Funeral Choice’s Services and their respective Fees and/or Commission and which may change from time to time; and
- “Website” means the website at www.yourfuneralchoice.com and any related domain names or relevant variations.
FUNERAL CHOICE SERVICES
- Funeral Choice may in its sole discretion, change the rate of Commission at any time on 30 days’ notice to the Partner, either by specific notice or by updating the Pricing Table ( “Pricing Change Notice”). If the Partner, as a result of a Pricing Change Notice wishes to change the Funeral Choice Services it receives, it must provide written notice to Funeral Choice this effect within 14 days of the notice of the Pricing Change Notice.
- In consideration of receiving the Funeral Choice Services, the Partner agrees to pay all applicable Commission to supply customers with their services to the highest industry standards, the standards of any industry organisations they are members of.
- The Partner must be willing to accept all customer referrals and must make reasonable attempt to accept contact from, or make contact with, customers that are referred to them though the website
- The Partner is responsible for ensuring that all Partner Content (especially prices for the Partner Services) that it provides to Funeral Choice to publish on the Page(s) is accurate and correct and not misleading.
- Further, the Partner must supply the Partner Services at a price which is the best available rate offered directly in the Partner’s venue or through other public or widely available channels of the Partner.
- If Funeral Choice has reasonable grounds to suspect that the Partner has made or makes any direct or indirect attempt to avoid paying any Commission, for example without limitation, by soliciting Customers to make contact through methods not monitored by Funeral Choice, this shall be a material breach of this Agreement and shall give Funeral Choice the right, without limiting its other remedies available to it, to terminate this Partner Agreement and cease the showcasing of such partner on the website.
CONTACT & REFERRAL PROCESS
- Funeral Choice, through the Website, agrees to provide a process enabling a Customer to engage Partner Services with a Partner. This process may change from time to time.
- Through the Website the Customer chooses the Partner Services they require and the Partner they wish to contact. The Customer then submits a Call-back Request to the Partner through the Website. Alternatively the customer can use the Funeral Choice Partner numbers displayed on the Website that connect to Partners through Funeral Choice.
- The Partner will be responsible for undertaking an Arrangement Call with the Customer following the receipt of a Call-back Request. The Arrangement Call must be made within 6 hours. Failure to make the Arrangement Call may result in Funeral Choice cancelling the Call-back Request and allowing the Customer to choose another Partner.
- Following an Arrangement Call the Partner must either, confirm the outcome of the Arrangement Call as a successful funeral referral to firstname.lastname@example.org or notify us of an unsuccessful Arrangement Call to email@example.com within 24 hours of receipt.
- Within 24 hours of confirmation with the customer the Partner must send the Funeral Date to firstname.lastname@example.org.
- For avoidance of doubt, Funeral Choice will not be liable for any unpaid Charges by the Customer in respect of their Funeral Products and Services with the Partner.
CUSTOMER SERVICE AND COMPLAINTS
- The Partner shall seek to provide high quality Partner Services to all Customers and shall promptly deal with any sales enquiries, matters or issues relating to the provision of Funeral Products and Services, including dealing with Customer complaints.
- The Partner shall provide Partner Services in accordance with any standards required by any trade association or industry bodies of which they are a member.
- The Partner shall be directly responsible to the Customer for any failure to fulfil the Customer’s expectations or for any other legal liability which arises in respect of the Partner Services.
- Funeral Choice shall refer any Customer complaints it receives to the relevant Partner and the Partner shall acknowledge all complaints, and shall respond to the relevant Customer within 48 hours of the Partner’s receipt of a complaint (whether the complaint has come directly from the Customer or via Funeral Choice).
- The Partner shall make all efforts to reach a resolution to any complaints within 14 days and must notify Funeral Choice of any correspondence between the Partner and the Customer relating to the complaint.
- The Partner hereby acknowledges and accepts that the Website includes a reviewing platform, upon which Customers may post publicly viewable reviews about their experiences with Funeral Choice and with the Partner (particularly in relation to the Partner Services) (“User Generated Content”). The Partner should note that this platform may not be opted out from and may from time to time contain negative reviews and/or feedback from consumers, which is outside Funeral Choice’s control. There is an option for the Partner, if they are the subject of any User Generated Content, to reply to reviews about them. However, any content the Partner posts in response to User Generated Content must be polite and professional and non-threatening or confrontational, and it may be subject to review by Funeral Choice (and removed or amended in Funeral Choice’s sole discretion if Funeral Choice deems reasonably necessary). For the avoidance of doubt, the Partner shall have no right to any remedy (including without limitation, any right to terminate this Agreement) as a result of any User Generated Content naming or referring to the Partner. However, if the Partner, acting reasonably, feels that any User Generated Content is defamatory of the Partner or any person or in some other way is a violation of any person’s legal rights, the Partner may flag and report that User Generated Content to Funeral Choice. In such case, Funeral Choice shall review the same and in its sole discretion take any action it deems necessary or desirable (including, for example, removing or amending the relevant piece of User Generated Content).
- Funeral Choice shall be the “data controller” (as defined by the DPA) of Customer information collected on the Website and the Partner may only use that Customer information for the purposes of contacting the customer directly.
- The Partner shall comply with any notification requirements under the DPA.
- The Partner may not use Customer information provided by Funeral Choice for any purpose other than to make contact with the customer. For the avoidance of doubt: even though the Partner will have access to the contact details of Customers on from Funeral Choice, this does not give the Partner the right to copy, use or exploit the Customer information for any other purpose and particularly does not give the Partner the right to send the Customer marketing or promotional communications. Breach of this Clause will be a material breach of contract.
- The Partner may collect Customer information separately and directly by itself (for example, where Customers have booked Partner Services otherwise than through use of the Funeral Choice Services, or where the Partner has separately directly asked the Customer for their data), in which case, in respect of that data, the Partner shall be the data controller of that Customer information for the purpose of the DPA.
- When the Partner is processing “personal data” as a “data processor” (both as defined by the DPA) for Funeral Choice the Partner shall:
- process the personal data only in accordance with instructions from Funeral Choice (which may be specific instructions or instructions of a general nature);
- comply with all applicable laws;
- process the personal data only to the extent and in such manner as is necessary or as is required by law or by any regulatory body;
- implement appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
- take reasonable steps to ensure the reliability of its staff and agents who may have access to the personal data;
- not cause or permit the personal data to be published, disclosed or divulged, or transferred to a third party or to be transferred outside of the European Economic Area without the prior consent of the Customer; and
- notify Funeral Choice within five (5) working days if it receives a request from a data subject (as defined by the DPA) to have access to that person’s personal data or a complaint or request relating to Funeral Choice or the Partner’s obligations under the DPA.
- This Clause shall survive the termination or expiry of this Agreement.
PARTNER WARRANTIES AND INDEMNITY
- The Partner shall provide Funeral Choice with any Partner Content it reasonably requires to be provided with in order to supply the Funeral Choice Services.
- The Partner warrants that all Partner Content it supplies to Funeral Choice in connection with this Agreement and/or publishes (or provides to Funeral Choice for publication) on the Website (and the Distribution Channels, if applicable) will be accurate in all material respects and shall not infringe any other person’s rights (including Intellectual Property Rights) or be defamatory, unlawful, offensive, threatening, or pornographic or otherwise falling below general standards of taste and decency.
- The Partner hereby grants Funeral Choice the right:
- to use and publish the Partner Content in connection with the provision of Funeral Choice Services;
- to remove, edit, cut-down or otherwise amend Partner Content published on any Pages, including without limitation where such Partner Content does not, in Funeral Choice’s opinion comply with the warranties, or is otherwise in breach of the terms of this Agreement; and
- to bid on “Pay Per Click” terms and adwords and make use of search engine optimisation services etc. that embody, incorporate or quote (in whole or part) the trading name of the Partner or any brands used in connection with the Partner Services.
- The Partner warrants, represents and undertakes that it shall comply with all applicable laws and advertising regulation in the marketing, sale and provision of the Partner Services and shall obtain all licences, consents, authorities and insurance it is either necessary or reasonably prudent for the Partner to obtain in respect of all its business activities and personnel (but especially in connection with the provision of Partner Services).
- The Partner hereby agrees to indemnify, keep indemnified and hold harmless Funeral Choice and its officers, directors and employees, from and against any and all claims, demands, obligations, actual or alleged causes of action and lawsuits and all damages, liabilities, fines, judgments, costs (including settlement costs), and expenses associated therewith (including the payment of reasonable legal charges and disbursements) arising out of or in connection with any breach by the Partner of any term of this Agreement or arising out of any action brought by any third party relating to the Partner Services provided (or not provided), or actions (or failure to act), of the Partner or any person (other than Funeral Choice) acting on its behalf, including, without limitation any action brought in connection with any Partner Content or a Customer visit to the Partner’s venue.
- This Clause 10 shall survive the termination or expiry of this Agreement.
TERM OF THE AGREEMENT
- The term of this Agreement is one year commencing on the Effective Date and will continue to renew automatically for successive one year terms unless terminated in writing on not less than 30 days’ written notice by either party, such notice to expire only at the end a one year term.
- Either party shall be entitled to terminate this Agreement with immediate effect by written notice to the other if:
- the other party commits a material breach of any of the provisions of this Agreement and either that breach is not capable or, in the case of a breach capable of remedy, that party fails to remedy the same within 7 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
- the other party is in persistent non-material breach (whether remediable or not) of any of the provisions of this Agreement;
- that other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting there from effectively agrees to be bound by or assume the obligations imposed on that other party under this Agreement);
- anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to that other party; or
- the other party ceases, or threatens to cease, to carry on business.
- Each party acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party, their marketing plans, their clients, customers, businesses, business plans, finances, technology or affairs, which information is proprietary and confidential to the other party (“Confidential Information”)
- Each party undertakes to maintain and procure the maintenance of the confidentiality of Confidential Information at all times and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorised access, and not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the owner of the Confidential Information, directly or indirectly, to use, disclose, exploit, copy or modify any Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations hereunder.
- The terms of and obligations imposed by this Clause 11 shall not apply to any Confidential Information which:
- at the time of receipt by the recipient is in the public domain;
- subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
- is lawfully received by the recipient from a third party on an unrestricted basis; or
- is already known to the recipient before receipt hereunder.
- The recipient may disclose Confidential Information in confidence to a professional adviser of the recipient or if it is required to do so by law, regulation or a competent authority.
- This Clause shall survive the termination or expiry of this Agreement.
- Funeral Choice’s maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the Commission payable to Funeral Choice hereunder. Further, Funeral Choice shall not be liable for any loss of income or profits, loss of contracts or for any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
- Nothing in this Agreement shall exclude or in any way limit Funeral Choice’s liability for fraud or for death or personal injury caused by its negligence or for its wilful default or any other liability to the extent the same may not be excluded or limited as a matter of law.
- This Clause shall survive the termination or expiry of this Agreement.
- All rights to the Website and the content on it (save for Partner Content) (and all other Intellectual Property Rights belong to or are licensed to Funeral Choice) remain vested in Funeral Choice at all times. Nothing in this Agreement shall give the Partner any rights in respect of any such Intellectual Property Rights or of the goodwill associated therewith.
- In the event of a change of control or senior management of the Partner, the Partner must bring the existence and terms of this Agreement to the new owner or manager’s attention and inform Funeral Choice of the relevant new personnel’s contact details.
- Any notice, invoice or other communication which either party is required to serve on the other party shall be sufficiently served if sent to the other party at the address specified in this Agreement (or such other address as is notified to the other party in writing or by email). Notices sent by registered post or recorded delivery shall be deemed to be served three working days following the day of posting. In all other cases, notices are deemed to be served on the day when they are actually received.
- Any valid alteration to or variation of this Agreement must be in writing and signed on behalf of each of the parties by a duly authorised officer.
- The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in this Agreement, nothing in this Agreement shall constitute the parties as partners, joint ventures or co-owners.
- Neither party may assign, transfer, charge, sub-contract or otherwise deal with any part or all of this Agreement without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).
- A person who is not a party to this Agreement has no right to enforce any term of this Agreement.
- The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
- If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms.
- This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.
- This Agreement shall be governed and interpreted in accordance with the laws of England and Wales. The parties submit to the exclusive jurisdiction of the English courts to settle any dispute arising out of or in connection with this Agreement.
Commission rate charged by Funeral Choice should a referral lead to a funeral for a given Partner due to contact between the Customer and Partner through the Funeral Choice Platform – 10% of the Simple Funeral Price displayed on the Funeral Choice Website, valid for all partners.