ADVIZO LICENCE AGREEMENT
This licence agreement (Licence) comprises these terms and any other terms agreed and set out in the order form for the Advizo solution (Solution Order Form). It is a legal agreement between the person or entity set out in the Solution Order Form (you and your) and Advizo (Advizo, we, us and our).
Advizo allows your Authorised Users to use the Solution on your behalf subject to the terms of this Licence. Advizo does not sell the Solution (or any of its Intellectual Property Rights) to you. Advizo and its licensors remain the owners of the Solution at all times.
IMPORTANT NOTICE USE OF THE SOLUTION IS STRICTLY SUBJECT TO THE TERMS OF THIS LICENCE AND YOU AGREE THAT THE TERMS OF THIS LICENCE WILL BIND YOU AND YOUR AUTHORISED USERS WHEN YOU USE THE SOLUTION. FOR THE AVOIDANCE OF DOUBT, THE TERMS OF THIS LICENCE WILL CONTINUE TO APPLY TO ANY ADVIZO CONTENT PROCESSED BY YOU OR YOUR AUTHORISED USERS FOLLOWING EXPIRY OR TERMINATION OF THIS LICENCE. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 12.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, NEITHER YOU NOR YOUR AUTHORISED USERS MAY USE THE SOLUTION.
You should save and print a copy of this Licence for future reference.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS & INTERPRETATION
1.1 In this Licence, unless the context otherwise requires, the definitions set out in Schedule 1 shall apply.
1.2 If there is any conflict, ambiguity or inconsistency between parts of this Licence, the order of precedence shall be as follows in descending order: (a) the terms set out in the Solution Order Form; (b) the Third Party Terms (as defined in clause 3.5); (c) the remaining terms of this Licence.
1.3 Where Advizo allows your Authorised Users to use the Solution on your behalf without, or in advance of, the Solution Order Form being entered into, then all such use shall be deemed to be use on a trial basis for a limited period (as determined by Advizo at its sole discretion), subject to these terms.
2. LICENCE
2.1 In consideration of the Fees and you agreeing to abide by the terms of this Licence, Advizo grants to you a non-exclusive, personal and non-transferable licence during the Term to use the Solution solely for your internal business operations in the United Kingdom.
2.2 You will not (and will not assist any third party to): (a) other than as permitted by this Licence, commercialise by way of service offering or otherwise, to or for any third party, the Solution (in whole or part); or (b) develop, promote or resell any solution that competes with the Solution.
2.3 Advizo shall have the right to update and revise the terms of this Licence from time to time by giving you not less than 14 days’ notice.
3. SERVICES
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Advizo Services
3.1 In consideration of the Fees, Advizo agrees to provide the Support Services in respect of the Solution.
3.2 Advizo does not warrant that use of the Solution will be uninterrupted or error-free.
3.3 You will provide Advizo with all reasonable assistance required by Advizo in the provision of the Support Services and to enable Advizo to perform its obligations under this Licence.
3.4 You acknowledge that Advizo may utilise non-dedicated infrastructure, virtualised infrastructure and/or private networks when providing the Solution, and that Advizo is entitled to reconfigure the set-up of the Production Environment at any time provided that it does not materially reduce the functionality of the Solution or its ability to meet agreed performance requirements. Third Party Services
3.5 Third Party Services provided to you may be subject to terms of use required by the relevant Third Party Service Provider (Third Party Terms). Such Third Party Terms may be set out in a direct agreement between the Third Party Service Provider and you (Direct Agreement), in Schedule 2, or otherwise notified to you. You and your Authorised Users must comply with all Third Party Terms and any changes to them. In the event of any inconsistency or ambiguity between any of the Third Party Terms and any of the other terms of this Licence, the relevant Third Party Term shall take precedence as it applies to the relevant Third Party Service only.
3.6 If you are required to enter into a Direct Agreement with a Third Party Service Provider then you: (a) shall notify Advizo immediately if the Direct Agreement expires or is terminated; and (b) hereby indemnify Advizo against any loss or damage that Advizo suffers or incurs as a result of you not having a Direct Agreement in place or any breach of such Direct Agreement.
3.7 Advizo will notify you as soon as reasonably practicable if Advizo is no longer able to provide any of the Third Party Services and Advizo shall reflect any revised Third Party Fees in the following invoice.
3.8 You acknowledge that any hypertext links to other websites, extranets or portals provided via the Solution do not constitute an endorsement or warranty in relation to the content therein and that you and your Authorised Users shall access and use the Third Party Services and links at your own risk.
3.9 You undertake that you and your Authorised Users shall comply with all policies and procedures which may be required by Third Party Service Providers, and to enter into all necessary documentation required by Third Party Service Providers in order to receive the Third Party Services.
4. REGULATORY REQUIREMENTS
4.1 You acknowledge that: (a) you assume sole responsibility for advice and/or recommendations provided to your Customers in using the Solution; and (b) you are responsible for compliance with all laws or regulations concerning your business, including, but not limited to, the rules of the FCA or any other regulations, requirements, stipulations or conditions made by any professional or regulatory organisation to which you or your Authorised Users may be subject from time to time; and (c) Advizo shall have no liability for any loss or damage arising from any processing of the Broker Data or the Customer Data by Advizo at the direction of you or your Authorised Users.
5. YOUR OBLIGATIONS
5.1 Except as expressly authorised in this Licence or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, you will and will procure that your Authorised Users will: (a) not attempt to rent, lease, transfer, copy, modify, duplicate, timeshare, create derivative works from, frame, mirror, republish, download, display, transmit, distribute or otherwise commercially exploit all or any part of the Solution or the Advizo Content and/or the Production Environment in any form or media or by any means; (b) not attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solution or the Advizo Content and/or the Production Environment; (c) not access all or any part of the Solution, Advizo Content, Production Environment, Reports and/or the Support Services in order to build a product or service which competes with the Solution, Advizo Content, Production Environment and/or the Support Services; (d) take all reasonable steps to protect the Solution, Advizo Content, Production Environment and/or Support Services from unauthorised access or use; (e) use best efforts to prevent third parties from obtaining Passwords or other credentials; (f) immediately inform Advizo of any actual or potential unauthorised access to a Password, the Solution, Advizo Content, Production Environment and/or Support Services or any other risk to the security, integrity or stability of the Solution of which you are or become aware; (g) co-operate fully with Advizo in the investigation and resolution of any suspected or confirmed incident involving the security, integrity or stability of the Solution or the Platform, including the provision of any relevant data and records held by you or on your behalf; and (h) comply in full with the Third Party Terms and not do anything that would cause Advizo to be in breach of the Third Party Terms.
5.2 Advizo reserves all rights not expressly granted in this Licence.
5.3 You will take all appropriate steps to ensure that the access, transmission, downloading, distribution or storing of any materials (including any Advizo Content) by you or any of your Authorised Users: (a) is not harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) does not violate any domestic or international law, regulation, treaty, code of practice, infringe the Intellectual Property Rights of any person, facilitate illegal activity, or promote unlawful violence; and (c) is not otherwise likely to damage Advizo's or any Third Party Service Provider's reputation and goodwill, and Advizo reserves the right, without liability or prejudice to its other rights, to immediately disable access to any material that breaches the provisions of this clause 5.3.
5.4 You will keep Advizo and the Third Party Service Providers fully and effectively indemnified against any loss, damages, liabilities and costs (including reasonable legal costs) suffered by them (or any of them) as a result of any breach of any legal or regulatory requirements applicable to the nature of data hosted for you in the Production Environment including any restrictions imposed on the processing, import or export of such data, in all cases where such breach is caused by any act or omission by you or any of your Authorised Users or where you or any of your Authorised Users has failed to act in accordance with the terms of this Licence.
5.5 If Advizo: (a) reasonably suspects that you or any of your Authorised Users is in breach of clause 5.3; or (b) is ordered to do so by a court of competent jurisdiction or appropriate regulatory body, Advizo may remove any offending material and/or suspend access to all or part of the Solution as reasonably necessary to effect such removal.
5.6 You will and will procure that your Authorised Users will: (a) provide to Advizo all necessary access to such information as may be required by Advizo in order to provide the Solution and perform the Support Services, including but not limited to security access information; (b) comply with all applicable laws and regulations with respect to your activities under this Licence; (c) carry out all obligations on your part set out in this Licence in a timely and efficient manner, provided that in the event of any delay or failure in the carrying-out of any of those obligations, any agreed timetable or delivery schedule will be adjusted as reasonably necessary to take account of such delay or failure; and (d) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the Production Environment, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
6. FEES
6.1 The Solution Fees will be payable in accordance with the Solution Order Form.
6.2 The Third Party Fees will be payable in accordance with the Solution Order Form only where: (a) use of the Solution is deemed by Advizo to be use outside of Fair Use; and/or (b) the Solution is not being used, or Advizo suspects that the Solution is not being used, in accordance with the terms of this Licence.
6.3 Unless otherwise specified in the Solution Order Form, Advizo shall invoice you at the end of each calendar month for the Fees and you will pay the Fees to Advizo without deduction or set-off, by bank transfer in GBP, within 30 days of the date of Advizo’s invoice.
6.4 If the Licence terminates for any reason at any time prior to expiry of the Minimum Period, then Advizo shall be entitled to invoice you for any Fees that would otherwise have been payable by you during the Initial Free Period and you shall pay such invoiced amount to Advizo without deduction or set-off, by bank transfer in GBP, within 30 days of the date of Advizo’s invoice.
6.5 If you fail to make any payment due to Advizo by the due date (other than a payment which is the subject of a bona fide dispute), then, without prejudice to any of its other rights or remedies, Advizo may: (a) charge you interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement, interest at a rate of 4% per year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0%; and/or (b) suspend access to all or part of the Solution if any undisputed sum is not paid within 30 days of its due date, until such time as the undisputed sum has been paid.
7. CONFIDENTIALITY
7.1 Each party (which in the case of you will include your Authorised Users) receiving Confidential Information (Recipient) from the other (Disclosing Party) shall keep that information confidential and comply with this clause 7. In particular the Recipient shall: (a) use the Disclosing Party's Confidential Information solely for the purposes of fulfilling its obligations under this Licence; (b) keep the Disclosing Party's Confidential Information secure and apply no lesser security measures and degree of care to protect it than the Recipient applies to its own confidential information; and (c) not disclose to any third party any of the Disclosing Party's Confidential Information except with the prior written consent of the Disclosing Party or in accordance with this clause 7.
7.2 Notwithstanding clause 7.1, the Recipient may disclose the Disclosing Party's Confidential Information to its directors, officers, employees and any sub-contractors or other third party (including, in respect of Advizo, any Third Party Service Provider) who are directly involved in, and need to know such Confidential Information for the purpose of, the provision or receipt of the Solution and/or the Support Services.
7.3 The Recipient shall ensure that its directors, officers, employees and any sub-contractors or other third party referred to in clause 7.2 are aware of the confidential nature of the information and shall instruct them: (a) to keep it confidential; and (b) not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Licence).
7.4 The obligations of confidentiality set out in this clause 7 shall not apply to the extent that the Recipient can demonstrate that the Confidential Information in question: (a) is or has become readily publicly available without restriction through no fault of the Recipient or its employees or agents; (b) is or was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; (c) was rightfully in the possession of the Recipient without restriction prior to its disclosure by the Disclosing Party; (d) is or was independently developed by the Recipient's employees without access to the Disclosing Party's Confidential Information; and/or (e) is disclosed pursuant to a requirement imposed by a court of competent jurisdiction or competent regulator, provided that prior to any disclosure pursuant to this clause 7.4 the Recipient shall notify the Disclosing Party and shall give the Disclosing Party an opportunity to participate in objecting to the production of the Confidential Information (to the extent practicable and permissible).
7.5 Nothing in this clause permits the Recipient to disclose or use the Confidential Information of the Disclosing Party except as explicitly permitted in this Licence and then only on an "as needed" basis.
7.6 To the extent that the Confidential Information of the Disclosing Party is no longer required by the Recipient to perform its obligations or exercise its rights hereunder, the Recipient shall (and shall procure that its directors, officers, employees, and any sub-contractors or third parties shall) either return such Confidential Information together with any copies, notes, transcriptions or records thereof in its control, power or possession to the Disclosing Party or, at the Disclosing Party's option, destroy it and, if requested, confirm in writing that it has done so.
7.7 You acknowledge that details of the Solution and the Support Services constitute Advizo’s Confidential Information.
7.8 Neither party shall (except as permitted by this Licence): (a) disclose or permit disclosure of any details (including the existence) of this Licence to any third party; or (b) subject to clause 7.9, use the other party's name and/or brand in any promotion or marketing or announcement of orders, without the prior written consent of the other party.
7.9 You agree that Advizo may name you as a user of the Solution in its marketing materials and on its website, without payment of any separate fees. If you have made favourable comments about Advizo and/or the Solution, you agree that Advizo may reproduce these comments in its marketing materials or on its website.
7.10 The parties acknowledge that damages may not be an adequate remedy for any breach of this clause 7. Each party shall be entitled to seek legal or equitable relief, including injunction, upon the breach (or reasonably anticipated breach) of this clause 7.
7.11 The operation of this clause 7 shall survive the termination or expiration of this Licence.
8. TERM & TERMINATION
8.1 This Licence shall come into force on the date that it is accepted by you and, unless terminated earlier in accordance with its terms or otherwise by operation of law, shall continue for the Minimum Period, after which it may be terminated by either party giving notice in writing of not less than the Termination Notice Period to the other party.
8.2 Either party may, without prejudice to its other rights or remedies or to the other termination rights identified in this Licence, terminate this Licence with immediate effect at any time during the Term by written notice to the other party, if: (a) the other party commits a material breach of this Licence which, if such breach is capable of remedy, that other party fails to remedy within 30 days of receipt of a notice from the party requiring such remedy; or (b) any of the following events occur in respect of the other party: (i) it passes a resolution for winding-up or is subjected to a judgment or order issued by any court of competent jurisdiction ordering the sale, winding-up or other liquidation or dissolution procedure; or (ii) it has a receiver, manager, liquidator or trustee appointed (or gives notice of intention to so appoint) in accordance with applicable laws and that appointment is not revoked or withdrawn within 14 days of the appointment; (iii) it makes an assignment for the benefit of creditors generally or files or states an intention to file a proposal pursuant to any applicable law relating to bankruptcy, insolvency or creditor protection, or a receiving order is made or a petition is filed pursuant to any such law; or (iv) it becomes subject to any event analogous to, or enters into any arrangement analogous to, any of those events or arrangements specified in clauses 8.2(b)(i) – 8.2(b)(iii) (each, an Insolvency Event).
8.3 Advizo may, without prejudice to its other rights or remedies or to the other termination rights identified in this Licence, terminate this Licence with immediate effect at any time during the Term by written notice to you if there is a change of Control within you.
9. SUSPENSION
9.1 Advizo may, without prejudice to any other right or remedy it may have, suspend access to all or any part of the Solution: (a) in order to comply with any order or direction of any competent court, government agency or other competent administrative or regulatory authority; or (b) upon expiry or termination of this Licence in accordance with its terms; or (c) pursuant to either clause 5.5 or 6.5(b).
9.2 Advizo may from time to time suspend the Solution in order to carry out routine and emergency maintenance of the Production Environment. Routine maintenance shall take place outside of Advizo’s standard support hours where reasonably possible, and Advizo shall give you not less than 7 days’ notice of any routine maintenance which may materially impact provision of the Solution and, where reasonably possible, shall endeavour to perform routine maintenance in such a way as to cause minimal disruption. For the avoidance of doubt, emergency maintenance may take place at any time if Advizo reasonably believes it to be required to ensure the security, integrity and availability of the Production Environment.
10. TERMINATION CONSEQUENCES
10.1 Expiry or termination of this Licence, however caused, shall be without prejudice to any obligations or rights of either party which may have accrued under it before termination or expiry and shall not affect any provision of this Licence which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination or expiry.
10.2 Upon expiry or termination of this Licence for any reason: (a) each party shall return any documentation, data and other material belonging to the other party (and all media of any nature containing information and data belonging to the other party) in its possession or control to that other party; and (b) the parties shall be regarded as discharged from any further obligations in respect of the terminated Licence.
10.3 So long as Advizo is not prohibited by applicable law from so doing, Advizo will, upon written request at any time up to the date that is 2 months following expiry or termination, and provided that Advizo has received all Fees payable to it under this Licence, on a one-time basis deliver to you (in a standard machine-readable format) a copy of the Customer Data and the Broker Data. Any request for multiple extracts, or variation to Advizo's standard export format, shall be subject to separate charges.
11. INTELLECTUAL PROPERTY
11.1 You acknowledge and agree on behalf of yourself and your Authorised Users that Advizo and/or its licensors own all Intellectual Property Rights in the Advizo Content, Production Environment and Solution.
11.2 The Intellectual Property Rights in any Third Party Services shall be the absolute property of, and shall vest and remain vested in, the relevant Third Party Service Provider and, except as stated herein, nothing in this Licence shall grant any rights to, or in, such Intellectual Property Rights to you or your Authorised Users.
12. LIABILITY
12.1 All warranties, representations, undertakings, conditions or terms which may be implied or incorporated into this Licence by law, custom, trade usage or otherwise are hereby expressly excluded to the maximum extent permitted by law (including any implied warranties, representations, undertakings, conditions or terms of merchantability, satisfactory quality or fitness for a particular purpose).
12.2 Nothing in this Licence shall exclude or limit Advizo’s liability for: (a) death or personal injury caused by negligence; or (b) fraud or fraudulent misrepresentation; or (c) any other liability that cannot, as a matter of law, be limited or excluded.
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12.3 Other than in respect of clauses 12.2, and subject to clauses 12.4 - 12.7 (inclusive), Advizo’s maximum aggregate liability to you or any of your Authorised Users, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising out of or in connection with the performance or contemplated performance of this Licence or any collateral contract, shall in respect of any and all acts, omissions, defaults or events be limited to £5,000 (or an amount equal to the Solution Fees paid by you to Advizo in the immediately preceding 12 month period, if greater).
12.4 Advizo will not in any circumstances be liable to you whether in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for: (a) any loss (whether direct or indirect) of profits, data, business, business opportunities, revenue, turnover, reputation or goodwill; or (b) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or (c) any loss or liability (whether direct or indirect) under or in relation to any other contract; or (d) any indirect, consequential or special loss; or (e) any loss or damage if and to the extent incurred by you as a result of a Force Majeure Event; or (f) any loss or damage if and to the extent incurred by you as a result of error or omission on your part or following your instructions, in each case, whether or not Advizo has been notified of the possibility or likelihood of such loss or damage occurring.
12.5 Advizo shall not be liable for any loss or damage if and to the extent resulting from: (a) unavailability of the Support Services and/or Solution due to disruption of or any failure or fault in communication apparatus, lines, network or systems (including the internet) where resolution of the same is not within Advizo’s reasonable control; or (b) the acts or omissions of any Third Party Service Provider (including third party providers of telecommunications services or faults or failures in their apparatus where resolution of the same is not within Advizo’s reasonable control); or (c) suspension of the Support Services and/or Solution in accordance with clause 9; or (d) the use of or any defect in or failure of any Third Party Services, third party application or third party integration or any changes to any of the foregoing.
12.6 You acknowledge that Advizo has no direct control over the availability of bandwidth over the entirety of the internet and that Advizo shall not be responsible for any delay or failure caused by unavailability of bandwidth over networks not under Advizo’s ownership or reasonable control.
12.7 If any of the exclusions set out in each of clauses 12.4 – 12.6 (inclusive) is not upheld, the limit on liability at clause 12.3 shall apply.
13. FORCE MAJEURE
13.1 Advizo will not be liable for any delay or failure to perform any of its obligations under this Licence if such delay or failure is due to a Force Majeure Event.
13.2 If a Force Majeure Event occurs, Advizo shall: (a) promptly notify you of the occurrence of the Force Majeure Event, the date on which it started, the likely duration and the effects on its ability to perform under this Licence; (b) use reasonable endeavours to mitigate the effects of the Force Majeure Event on the performance of its obligations; and (c) promptly notify you of the cessation of the Force Majeure Event and resume performance of the affected obligations.
14. BROKER DATA, CUSTOMER DATA & PRIVACY
14.1 Responsibility for the legality, reliability, integrity, accuracy and quality of the Broker Data and Customer Data provided by you or your Authorised Users will rest with you, and you hereby indemnify Advizo against any loss or damage that Advizo suffers or incurs arising from or in connection with the processing of any such data, except to the extent such loss or damage results from the act or omission of Advizo.
14.2 You acknowledge that Advizo or any of its Group Companies may process information about you and your Authorised Users, the Broker Data and Customer Data in the provision of the Solution and the Support Services.
14.3 The terms of Advizo’s Privacy Policy (Users) shall apply in respect of all of the personal data of you and your Authorised Users processed by Advizo or any of its Group Companies in the provision of the Solution and the Support Services.
14.4 Advizo or its relevant Group Company will be: (a) the data controller of any personal data processed pursuant to any use of any Advizo client or customer portal by the Customer; and (b) the joint controller (with you) of any personal data processed pursuant to any use of the Solution where Advizo or its Group Company determines the purposes and means of such processing.
14.5 The terms of Advizo’s Privacy Policy (Customers) shall apply in respect of all of the personal data of the Customers processed by Advizo or any of its Group Companies as data controller, joint controller or data processor. Where Advizo or its relevant Group Company is the data processor, you will ensure that you have in place terms with the data subject which are substantially similar to the terms of Advizo’s Privacy Policy (Customers).
14.6 You acknowledge that Advizo may allow Third Party Service Providers access to information about you and your Authorised Users, the Broker Data and Customer Data as required for the interoperation of the Solution with Third Party Services. To the extent that such data constitutes personal data controlled by you and processed by Advizo or any of its Group Companies in the provision of the Solution and the Support Services, the terms of Advizo’s Privacy Policy (Users) and Privacy Policy (Customers) shall apply as set out in clauses 14.3 and 14.5 respectively, but otherwise Advizo shall not be responsible for any disclosure, modification or deletion of such data resulting from any such access by any Third Party Service Provider.
14.7 Advizo may collate, extract and copy data (including Broker Data and Customer Data) from the Solution in order to aggregate and anonymise such data so as to remove any personal data (Anonymised Data). The Anonymised Data may be used by Advizo for internal business purposes, delivering or improving Advizo’s solutions or services (including for commercial benefit) and/or may be shared with Advizo Group Companies and made available to other third parties as part of Advizo’s solutions or services (or otherwise), provided always that any use of the Anonymised Data and any distribution of such Anonymised Data outside of Advizo and its Group Companies is in accordance with applicable law.
14.8 Advizo will not introduce any of your Customers to any third party without your consent, except that where any of your Customers has a relationship with another organisation using the Solution or Platform, Advizo may make an introduction based upon that Customer’s consent.
14.9 You acknowledge that Advizo may make Customer Data provided by you or your Authorised Users available to third parties with the consent of the relevant Customer on the basis of that Customer‘s data rights. For the avoidance of doubt, Broker Data provided by you or your Authorised Users shall not be made available to third parties without your consent.
14.10 Any introductions or referrals facilitated by Advizo shall be subject to any separate terms upon which consent was given or obtained. Any credit or payment due to you will be deducted from the subsequent monthly invoice for the Fees, or where the amount exceeds the Fees due for a given month shall be paid within 30 working days.
15. NOTICES
15.1 Any notice given by one party to another under this Licence shall be in writing, delivered by hand, by prepaid first-class or special delivery post to its registered office (in the case of a company) or its principal place of business (in all other cases), or by email.
15.2 Notices delivered by hand shall be deemed served on the day of receipt (unless received after 5.30pm, in which case they shall be deemed served on the next working day). Notices sent by prepaid first-class post or special delivery shall be deemed served 2 working days after posting. Notices sent by email shall be deemed served when dispatched, provided that no delivery failure notice is received.
15.3 Either party may vary its address for notices by giving notice to the other expressly stating the new address for notices.
16. ASSIGNMENT & SUB-CONTRACTING
16.1 You may not assign, novate or deal in any way with all or any part of the benefit of, or your rights or benefits under, this Licence without the prior written consent of Advizo.
16.2 Advizo may assign, novate, sub-contract or deal in any way with all or any part of the benefit of, or its rights or benefits under, this Licence.
16.3 This Licence shall be binding upon the parties and their successors and permitted assigns.
17. WAIVER & CUMULATIVE REMEDIES
17.1 The rights and remedies of each party under, or in connection with, this Licence may be waived only by express written notice. Any waiver shall apply only in the instance, and for the purpose for which, it is given.
17.2 No right or remedy under, or in connection with, this Licence shall be precluded, waived or impaired by: (a) any failure to exercise or delay in exercising it; (b) any single or partial exercise of it; (c) any earlier waiver of it, whether in whole or in part; or (d) any of the above in relation to any other right or remedy (whether of similar or different character).
17.3 The rights and remedies arising under, or in connection with, this Licence are cumulative and, except where otherwise expressly provided in this Licence, do not exclude rights and remedies provided by law.
18. RELATIONSHIP OF THE PARTIES
Nothing in this Licence is intended to create a partnership or joint venture or legal relationship of any kind between the parties that would impose liability upon one party for the act or failure to act of the other party, or to authorise either party to act as agent for the other. Save where expressly stated, neither party shall have authority to make representations, act in the name or on behalf of, or otherwise bind, the other.
19. SEVERANCE
19.1 If any provision of this Licence is or becomes illegal, invalid or unenforceable, in any respect: (a) it shall not affect or impair the legality, validity or enforceability of any other provision of this Licence; and (b) the parties will use reasonable endeavours to negotiate in good faith with a view to replacing it with a valid and enforceable provision which achieves, to the greatest extent possible, the same effect as would have been achieved by the illegal, invalid or unenforceable provision but differing from it as little as possible.
19.2 If any illegal, invalid or unenforceable provision would be legal, valid or enforceable if some part of it were deleted, such provision shall apply with the minimum modification necessary to make it legal, valid or enforceable.
20. THIRD PARTY RIGHTS
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Except as expressly stated in this Licence, a person who is not a party to this Licence shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence.
21. VARIATION
Any change to this Licence shall only be valid if it is agreed in writing on behalf of Advizo by its duly authorised representative.
22. ENTIRE AGREEMENT
22.1 This Licence constitutes the entire agreement and understanding between the parties in respect of its subject matter and supersedes any previous agreement, warranty, statement, representation, understanding or undertaking (in each case whether written or oral) given or made before the date of this Licence by or on behalf of the parties and relating to its subject matter.
22.2 Each party confirms that, in entering into this Licence, it has not relied upon, and shall have no remedy in respect of, any agreement, warranty, statement, representation, understanding or undertaking made by any party (whether or not that party is a party to this Licence) unless that warranty, statement, representation, understanding or undertaking is expressly set out in this Licence.
22.3 Neither party shall be entitled to the remedies of rescission or damages for misrepresentation arising out of, or in connection with, any agreement, warranty, statement, representation, understanding or undertaking whether or not it is set out in this Licence.
22.4 Nothing in this Licence shall restrict or exclude any liability for (or remedy in respect of) fraud or fraudulent misrepresentation.
23. GOVERNING LAW & JURISDICTION
23.1 This Licence and any dispute or non-contractual obligation arising out of or in connection with it shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 Each party submits to the exclusive jurisdiction of the courts of England and Wales over any dispute arising out of or in connection with this Licence.
23.3 Any party may, at any time, refer a dispute to adjudication, in which case the adjudication procedure set out in the TeCSA Adjudication Rules shall apply and the decision of the adjudicator shall, save in the case of fraud or manifest error, be binding upon the parties. Each party shall give effect to the decision of the adjudicator, provided that if either party does not comply with the decision of the adjudicator, then the other party shall be entitled to take proceedings in the courts of England and Wales to enforce such decision.
SCHEDULE 1 – DEFINITIONS
Advizo Content means any proprietary information, including but not limited to data, databases, reports, charts, graphs, tools, software, source code, documentation and other materials that are made available to you or your Authorised Users;
Advizo Client Portal means any web application or portal made available by Advizo from time to time that enables a Customer to access, update and otherwise interact with information held in the Solution and/or Platform.
Authorised Users means users authorised by you to use the Solution on your behalf (each, an Authorised User);
Broker Data means any information relating to a case or transaction which is not considered Customer Data and any other information provided by you which does not relate to a Customer.
Confidential Information means any information which is disclosed by one party to the other whether before or after the commencement of the Term, which is designated in writing as confidential or would appear to a reasonable person to be confidential, including but not limited to information regarding a party's business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, design rights, market opportunities, personnel, plans or intentions, suppliers, other contracting parties, or other persons in respect of whom a confidentiality obligation may arise, and all information derived from any of the above together with the provisions of this Licence and the negotiations relating to the same;
Control means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors (and Controls and Controlled shall be construed accordingly);
Customers means any of your customers or potential customers who use the Solution or any Advizo Client Portal directly or who receive financial products or advice from you or your Authorised Users using the Solution (each, a Customer);
Customer Data means information relating to an individual that is held within the Solution for the purpose of advising in connection with and/or providing that individual with financial services and/or any related service;
Fair Use means use of the Solution in the ordinary course to collect Customer information, perform “know your customer” and anti-money laundering checks, pull credit report information, and make product recommendations for products whose sale is recorded in the Solution. For the avoidance of doubt, any use of the Solution to prepare business for submission where the sale is not recorded in the Solution shall be deemed to be use outside of Fair Use;
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FCA means the United Kingdom Financial Conduct Authority or its successor;
Fees means the Solution Fees and the Third Party Fees;
Force Majeure Event means an event which is beyond the reasonable control of Advizo including an event which falls into one or more of the following categories: strike, lockout, work stoppages, slow-downs or any other labour dispute; act of God, fire, flood and storm; war, military action, riot, civil commotion, terrorism, epidemic or pandemic; explosion or malicious damage; nuclear, chemical or biological contamination or sonic boom; compliance with a law or governmental order, rule, regulation or direction coming into force after the date of this Licence;
Group Company means a subsidiary company or holding company of the party concerned, or a subsidiary company of such holding company, all as defined in section 1159 of the Companies Act 2006, and Group Companies shall be construed accordingly;
Initial Free Period means any initial free period set out in the Solution Order Form;
Intellectual Property Rights means: (i) patents, utility models, supplementary protection certificates, petty patents, inventions (whether patentable or not), registered designs, rights in copyright (including authors' and moral rights), database rights, design rights, semiconductor topography rights, mask work rights, trade marks and service marks; (ii) all registrations or applications to register any of the items referred to in paragraph (i); and (iii) all rights in the nature of any of the items referred to in paragraphs (i) or (ii) including continuations, continuations in part and divisional applications, reputation, personality or image, trade names, business names, brand names, get-up, logos, domain names and URLs, rights in unfair competition and rights to sue for passing off and all rights having equivalent or similar effect to, and the right to apply for any of, the rights referred to in this definition in any jurisdiction;
Minimum Period means any minimum period set out in the Solution Order Form;
Password means the unique password assigned to each Authorised User that permits access to the Solution;
Platform means the Advizo platform, created, hosted and maintained by or on behalf of Advizo, and any successor platform thereto, that is used as the underlying infrastructure, data store, processing environment, and shared services for the delivery of multiple solutions, including the Solution;
Privacy Policy (Customer) means Advizo’s standard privacy policy relating to the processing of any Customer’s personal data in force from time to time, the current version of which is available at https://www.advizo.co.uk/privacy-policy (or such other URL as Advizo may notify);
Privacy Policy (User) means Advizo’s standard privacy policy relating to the processing of your or any Authorised User’s personal data in force from time to time, the current version of which is available at https://www.advizo.co.uk/privacy-policy (or such other URL as Advizo may notify);
Production Environment means the combination of hardware, software, telecommunications links, Platform and network connections and other material used by Advizo to provide the Solution for access by you;
Reports means individual data analysis reports, including, without limitation, summary of activities performed, charts and graphs generated by the Solution pursuant to data parameters requested by you or an Authorised User;
Solution means Advizo’s proprietary business management and operations solution for mortgage brokers and financial advisers (including all software and services which are made available through, or which form part of, the Solution from time to time), together with any enhancements and modifications thereto, and any accompanying materials;
Solution Fees means the fees payable by you for access to the Solution, as set out in and/or calculated pursuant to the Solution Order Form;
Support Services means any error corrections and/or modifications, documentation, or testing to be provided by Advizo with respect to the Solution in accordance with Advizo’s standard support policy in force from time to time;
Term means the term of this Licence, as specified under clause 8;
Termination Notice Period means the termination notice period set out in the Solution Order Form or, if no such notice period is specified in the Solution Order Form, 30 days’ notice;
Third Party Data means any data (including financial data), information or software sourced from a third party and made available through, or which forms part of, the Solution;
Third Party Fees means the fees payable (if any) by you at Advizo’s prevailing re-charge rates from time to time for access to certain Third Party Services (which may include fees for any administration in respect of such access), the current re-charge rates being those set out in and/or calculated pursuant to the Solution Order Form;
Third Party Service Provider means a third party service provider who provides Third Party Services; Third Party Services means access to Third Party Data and access to any other software or services which are provided by, or on behalf of, a third party and which are made available through, or which form part of, the Solution.
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