Terms and Conditions

These terms included in the WealthWorks+ part of thewealthworks products apply in addition to any signed contract between the parties, for the provision of Software.

thewealthworks may update these terms on written notice to the Licensee from time to time.

Warning

All Licensees should check all calculations and answers they receive using the Software and should take their own specific advice from professional advisers.   See the limitation of liability clauses below in these terms.

This is an agreement between the company or individual that has taken a licence of thewealthworks software named in the order or in the contract signed by the parties (“Licensee”) and thewealthworks Limited, a company registered in England and Wales with company number 02619307 whose registered office is at The Flour Mill, High Beeches Lane, Handcross, Haywards Heath, RH17 6HQ, United Kingdom (“thewealthworks”).

If Licensees are connecting to HM Revenue & Customs for the purposes of VAT returns (Making Tax Digital) they should be aware of the following: “Transaction Monitoring (TxM) is a key security approach adopted in the UK and globally. The approach of HMRC is in line with National Cyber Security Centre (NCSC) and Cabinet Office recommended guidance and industry good practice and is a requirement for the use of their API. They monitor transactions to protect taxpayers from infringement of their data by criminals or fraudsters. Without the protection offered by TxM, personal data could be compromised, leading to fraud against taxpayers or the UK Exchequer.  We are obliged to help protect our users’ confidential data by sending HMRC particular types of user audit data which they will record. The HMRC APIs provide HTTP headers that can be used to pass this audit data to them. These headers can influence the processing of the API call, or support their prosecutions for tax or duty fraud. Details of what is contained in these headers can be found on https://developer.service.hmrc.gov.uk/api-documentation/docs/fraud-prevention”

Definitions

“Contract Summary” is the summary of what is to be provided by thewealthworks to the Licensee either in a written contract signed by both parties to which these terms may be attached or in the order for the Software agreed by the parties.

“Licensed Computer System” the computer configuration and operational environment specified in the Contract Summary on which the Software is licensed to run

“Software” the software products listed in the Contract Summary and their related documentation.  Any modifications to the Software whether carried out by the Licensee or by thewealthworks will be the copyright of thewealthworks and will form part of the Software and be subject to these terms and conditions.  The “Software” is that named on the order.

“Acceptance” when the Software is accepted by the Licensee under Section “Delivery, Installation and Acceptance”.

The “Installation Date” the date on which the Software is delivered to the Licensee or downloaded by the Licensee.

The “Initial Term” the period of one year from the Installation Date.

The “Annual Licence” the agreed contractual fee payable annually to thewealthworks for the use of the Software.

Grant

This Licence Agreement is founded on the agreement of the parties that:

the Software supplied by thewealthworks is not sold, but thewealthworks grants the Licensee a non-exclusive, non-transferable licence to use the Software in accordance with these terms and conditions. Title to the Software does not pass to the Licensee in any circumstance;

the Licensee acknowledges that it is licensed to use the Software only in accordance with the express terms of this Agreement;

the programs comprising the Software will be supplied under an object code only license, together with one copy of any related documentation where applicable.

Licence to Use the Software

thewealthworks grants to the Licensee a non-exclusive, non-transferrable licence to use the Software only for its internal purposes on the Licensed Computer System and at the Installation Address.

The licence to use the Software is limited to the number of users stated in the Contract Summary or order. If the Licensee wishes more users to use the Software, application should be made to thewealthworks to extend the licence, in which case thewealthworks will invoice the Licensee for the difference between the then list price of the larger configuration and the previous configuration.

The Licensee will not copy or permit the Software to be copied, except for reasonable security and backup purposes.

The Licensee may use the Software temporarily on an alternative processor to the Licensed Computer System for the purpose of disaster recovery, and not more than twice a year for the purposes of testing disaster recovery procedures.

The Licensee may transfer the Software to an alternative processor forming part of the Licensed Computer System or may relocate the Licensed Computer System provided that written notice is given to thewealthworks. Any transfer of the Software to a processor outside the Licensed Computer System requires the prior written consent of thewealthworks and may be subject to an additional licence fee.

Should the Licensee wish to upgrade or change the Licensed Computer System, notice must be given to thewealthworks. thewealthworks will then issue a licence for the upgraded or changed Licensed Computer System after receiving payment of any upgrade licence fee from the Licensee.

The Licensee warrants that the Software and all copies will remain under its control and that it will take all reasonable precautions to safeguard the Software against unauthorised use.

If the Licensee sells or disposes of the Licensed Computer System, it will ensure that all copies of the Software have previously been deleted.

The Licensee will notify thewealthworks immediately if the Licensee becomes aware of any unauthorised use of the Software by any third party.

The Licensee will permit thewealthworks to check the use of the Software by the Licensee at all reasonable times and the Licensee irrevocably licenses thewealthworks to enter and premises of the Licensee for that purpose.

Duration

The licence to use the Software will last for the Initial Term, unless terminated under Section “Termination for Cause”. After the Initial Term, the licence will automatically continue for successive periods of one year until either terminated by the Licensee giving written notice of termination to thewealthworks or unless terminated under Section “Termination for Cause”, provided that the Licensee pays thewealthworks on or before each anniversary of the Installation Date the Annual Licence under Section “Payment Terms”.

Termination of the licence will automatically terminate any support obligations by thewealthworks for the Software.

Termination of the licence will automatically terminate any access to the system and its structure by the Licensee or any third party. Any data extraction must be undertaken on application to thewealthworks under a separate licence using export tools provided by thewealthworks only.

Delivery, Installation and Acceptance

Delivery of the Software will be made to the Installation Address or by way of agreed download as the case may be. thewealthworks will make all reasonable efforts to keep to the Installation Date but under no circumstances will thewealthworks be liable for damages or costs arising from any delay in installation.

After delivery, thewealthworks will run such commissioning tests, as it considers necessary, to ensure that the Software is installed correctly. Upon successful completion of these tests, the Software will be accepted by the Licensee.

Maintenance and Support

Provided that the applicable Annual Licence has been paid, thewealthworks will provide maintenance and support to all users trained by thewealthworks in accordance with the terms and conditions set out in the Maintenance and Support Provisions Schedule.

Training and Consultancy

The minimum quantity of training as agreed between the parties is as stated in the Contract Summary. Subject to availability, thewealthworks will provide such further training for the staff of the Licensee as the Licensee requires, on thewealthworks’ usual terms and at times and locations as the parties agree.  thewealthworks warrants that training will be provided by reasonably competent tutors with an adequate knowledge of the Software.

The quantity and cost of pre-implementation and post-installation consultancy as agreed between the parties is as stated in the Contract Summary. Subject to availability, thewealthworks will provide such further consultancy, as the Licensee requires, on thewealthworks’ usual terms.  thewealthworks warrants that consultancy will be provided by reasonably competent personnel with an adequate knowledge of the Software.

thewealthworks will charge all travel and subsistence for training and consultancy, at a rate to be agreed between both parties.

Payment Terms

The Licensee will pay thewealthworks the first Annual Licence (plus applicable VAT), the agreed fees for training, consultancy and any data conversion and as shown in the Contract Summary (the “Initial Costs”).

For sales with a first-year total payment (excluding VAT) greater than £5,000 per annum, 70% of the Initial Costs are payable on signing the Agreement; the balance is payable on Installation. For all other sales, the total first year costs will be payable on signing the Agreement.

The Licensee will pay the Annual Licence on each anniversary of the Installation Date for each successive year for which the Licensee wishes to extend the licence.

The Annual Licence in respect of any period after the Initial Term will be whichever is the greater of:

  • the Annual Licence as stated in the Contract Summary, and
  • that sum increased in the same proportion as the increase in the Index of Retail Prices in the period between the Installation Date and the relevant anniversary (based on the Index of Retail Prices figures most recently published at the two reference dates).

Any further fees payable by the Licensee to thewealthworks (e.g. for additional consultancy and training) will be invoiced and due for payment on receipt of invoice.

The Licensee will pay interest to thewealthworks at 4% over the base rate for the time being of Royal Bank of Scotland on any overdue amounts.

Title, Copyright and Confidentiality

No title or rights of ownership, copyright or any other intellectual property in the Software is or will be transferred to the

The Licensee understands that the Software contains proprietary information and agrees that, except in accordance with an express written authority signed by an authorised signatory of thewealthworks, it will not provide or otherwise make any of the Software and/or related documentation available for any reason to any other person, firm, company or organisation, including contractors and external IT service providers acting on behalf of the Licensee, whether for facilities management purposes or otherwise.

The Licensee will ensure that all its relevant employees are advised that the Software constitutes confidential information and that all intellectual property rights in it are the property of thewealthworks or of those from whom it derives title, and the Licensee shall ensure that its employees comply with all of the terms and conditions of this

The Licensee agrees to indemnify thewealthworks in respect of any losses or expenses incurred by thewealthworks as a result of the unauthorised use of the Software by any third party resulting from a breach of the provisions of this Agreement.

The parties recognise that under this Agreement they may each receive trade secrets and confidential or proprietary information of the other party, including but not limited to information concerning products, customers, financial or contractual arrangements or other dealings, transactions or affairs, reports, recommendations, advice or tests, source and object program codes and development plans. All such information which is either marked “Confidential” or stated at the time of disclosure and subsequently confirmed in writing to be confidential or is by its nature confidential constitutes “Confidential Information”.  Each Party agrees only to use Confidential Information received from the other for the purposes of this Agreement, not to divulge Confidential Information received from the other to any of its employees who do not need to know it and to prevent its disclosure to or access by any third party without the prior written consent of the other party.  This obligation will survive the termination of this Agreement until such time as the Confidential Information concerned reaches the public domain other than through the receiving party’s own default.  This clause applies in addition to the provisions of this agreement relating to personal data in Section “Integrity of Data and GDPR/Data Protection Act 2018 and External Servers”.

Licensee Undertakings

The Licensee undertakes:

  • to satisfy itself that the Software meets the needs of its business. It is the sole responsibility of the Licensee to determine that the Software is ready for operational use in the Licensee’s business before it is so used and to check all calculations made using the Software;
  • to allow thewealthworks to study its data used with the Software for the purposes of rectifying any problems with the Software;
  • to ensure that the operating system and any other software with which the Software will be used is either the property of the Licensee or is legally licensed to the Licensee for use with the Software. The Licensee will indemnify thewealthworks in respect of any claims by third parties and all related costs, expenses or damages in the event of any alleged violation of third-party proprietary rights which results in any claims against thewealthworks;
  • if the Licensee intends to attempt the decompilation of any of the Software for error correction or any other purpose in the exercise of derived statutory rights, to give reasonable notice to thewealthworks of its intentions and will not otherwise decompile the Software except in so far as the law allows;
  • to comply with the Licensee’s obligations under the Maintenance and Support Provisions set in the Schedule.

Supplier’s Warranty and Disclaimer

thewealthworks warrants that for the duration of this Agreement the Software will operate as described and in accordance with its specification. Where any fault occurs the sole remedy of the Licensee shall be under the support provisions of this Agreement.  The obligations and liabilities of thewealthworks in this Agreement are in place of, and the Licensee accordingly waives, all implied guarantees and warranties to the fullest extent permissible by applicable law, including without limitation, any warranty of marketability or fitness for a particular purpose whether or not any purpose has been notified to thewealthworks.

The Licensee acknowledges that:

  • the Software has not been produced to meet individual Licensee specification;
  • the Software cannot be tested in advance in every possible operational combination and environment;
  • it is not possible to produce Software known to be error free in all circumstances;
  • they are expressly prohibited from attempting any modification of the Software;
  • with changes to tax and other legislation being so frequent thewealthworks cannot guarantee that the Software will always be up to date;
  • they should not rely on calculations or answers resulting from use of the Software entirely and should always take their own professional advice on these matters.

Indemnities and Limits of Liability

thewealthworks will indemnify the Licensee for direct physical injury or death caused solely either by defects in the Software or by the negligence of its employees acting within the course of their employment and the scope of their authority and for fraud for which thewealthworks is responsible.

thewealthworks will indemnify the Licensee for direct damage to property caused solely either by defects in the Software or by the negligence of its employees acting within the course of their employment and the scope of their authority. The total liability of thewealthworks under this sub-clause is limited to £100,000 for any one event or series of connected events.

Except as expressly stated in this Agreement, thewealthworks disclaims all liability to the Licensee in connection with thewealthworks’ performance of this Agreement or the Licensee’s use of the Software to the fullest extent permissible by applicable law and in no event will thewealthworks be liable to the Licensee for special, indirect or consequential damages including, but not limited to, loss of profits or loss of savings other than for liability as stated above.

Except as expressly stated in this clause and elsewhere in this Agreement, any liability of thewealthworks for breach of this Agreement will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Licensee the total price paid or due to be paid by the Licensee under this Agreement.

Integrity of Data and GDPR/Data Protection Act 2018 and External Servers

The parties agree that the Licensee is the best judge of the value and importance of the data held on the Licensee’s computer system, and the Licensee will be solely responsible for:

  • instituting and operating all necessary back-up procedures, for its own benefit, to ensure that data integrity can be maintained in the event of loss of data for any reason;
  • taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.

thewealthworks disclaims any liability arising from the loss of data from the Licensee’s computer system for any reason and the Licensee agrees to indemnify thewealthworks against any third-party claims which arise from loss of data for any reason;

Each party shall ensure they only provide personal data as defined in the General Data Protection Regulation and/or Data Protection Act 2018 (“the Data Laws”) which they are lawfully entitled to pass to the other party. Where a party receives notice to correct, erase or provide copies of data they have supplied to the other party they shall notify the other party immediately and the parties will co-operate in handling such notice.  Neither party will be a data processor of the other under this Agreement.  Where relevant thewealthworks will supply its privacy policy from time to time to the Licensee which will form part of this Agreement.  Where the Licensee uses thewealthworks’ website the Licensee shall also be subject to the website privacy policy at https://thewealthworks.com/privacy/.  thewealthworks does not receive personal data.  The Licensee may use data within the Software about the Licensee’s customers.  The obligations in this clause shall continue after the termination of this Agreement and apply in addition to the obligations in Section “Title, Copyright and Confidentiality”.  To the extent either party is sent personal data by the other it shall keep that data in accordance with its standard data retention period for such data.  Further, the Licensee shall retain support and service data for at least six years as required in the support/service terms annexed to these terms below;

The Licensee from time may be transferred to servers other than those operated by thewealthworks (e.g. use of Freshworks Inc and its group companies for support or Her Majesty’s Revenue and Customs (HMRC) for VAT Returns). thewealthworks shall approve the Licensee information being provided to such other companies’ services which may be the Licensee’s “support ticket”.  The Licensee acknowledges that such third parties may be involved in support or hosting data.  thewealthworks may host Licensee information and personal data outside the UK and/or outside the European Economic Area provided it fully complies with then current Data Laws in relation to such data export.

Modifications

thewealthworks reserves the right to make improvements, substitutions, modifications or enhancements to any part of the Software provided that the functionality and performance of the Software will not as a result be materially affected to the Licensee’s detriment.

Termination for Cause

This Agreement may be terminated immediately by notice in writing:

  • by thewealthworks if the Licensee fails to pay any sums due under this Agreement within 30 days of the due date (without prejudice to any other provision relating to late payment in this Agreement);
  • by either party if the other party is in material or continuing breach of any of its obligations under this Agreement and fails to remedy the breach (if capable of remedy) for a period of 30 days after written notice by the other party;
  • by either party if the other party is involved in any legal proceedings concerning its solvency, or ceases trading, or commits an act of bankruptcy or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary, other than for the purposes of an amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally become unable to pay its debts with the meaning or Section 123 of the Insolvency Act 1986 or equivalent circumstances occur in any other jurisdiction.

This Agreement may be terminated by the Licensee, upon not less than 90 days prior written notice of the expiration of the annual license as per the Agreement (in addition to the right to terminate where amendments are made to these conditions as provided otherwise in these terms). The annual licence fee is payable in full if notice is received after the 90 day period.  This also applies to contract variations.

Any termination of this Agreement under this clause will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination.

On termination of this Agreement, including the Software licence, the Licensee will be obliged to satisfy thewealthworks that it has erased all copies of any part of the Software from its computer system and from its magnetic media and that it has no ability to reproduce the Software in any way, and it will further be obliged to return to thewealthworks immediately all related documentation and all copies, books, records, papers or other tangible things in its possession belonging to thewealthworks.

Severability

If any provision of this Agreement is or becomes invalid or illegal, the rest of this Agreement shall remain valid and enforceable: the offending provision will be severed.

Waiver

If either party chooses to ignore (or overlooks) a breach of this Agreement or delays in enforcing its rights, that does not prevent it from enforcing its rights subsequently, either in respect of that breach or any future one.

Escrow

The Licensee may avail itself of licensee rights under an escrow agreement by paying the appropriate fees to and signing the appropriate agreement with appropriate parties with the prior consent of Licensor.  Licensor shall have the final decision over the escrow agent used and release conditions shall be limited to failure adequately to repair the Software and liquidation by thewealthworks.

Solicitation of Employees and Contractors

Without in any way restricting the right of an employee (which terms shall in this clause include a consultant of either party) freely to accept employment and change employment, if either party induces an employee of the other to enter its services and such employee enters its service at any time during the term of this agreement that party will pay to the other an amount being equivalent to the employee’s net annual salary in recognition only of the disruption that such inducement causes to the efficient conduct of the other party’s business.

Provided that this provision shall not apply where such employee:

  • is recruited pursuant to a generally published recruitment advertisement; or
  • is employed under a contract of employment in respect of which notice of termination has already been given.

Dispute Resolution

The parties shall try to settle any dispute between them by referring it to board level (or equivalent in a partnership) before invoking any other procedure.  If they still cannot settle, they will both give serious consideration to mediation or some other form of alternative dispute resolution, with a view to maintaining a reasonable commercial relationship between them.  The parties regard recourse to litigation as the last resort other than where thewealthworks needs to obtain an injunction for breach of its intellectual property rights or to prevent disclosure of its confidential information in which case it may proceed forthwith.

Choice of Law and Forum

This agreement shall be governed by and construed in accordance with the law of England and the parties submit to the jurisdiction of the English courts.

General

This agreement expresses the complete and final understanding of the parties with respect to its subject matter, superseding all negotiations, prior discussions and prior agreements. No provisions of this Agreement may be changed or modified in any way except by an instrument in writing signed by duly authorised representatives of both parties.

Any notice to be given under this Agreement may be given by delivering the notice personally or by sending it by post to the other party at its address as shown in the Contract Summary. The delivery address for notices may be changed from time to time by either party giving notice to the other party.

Any notice given under this Agreement shall be deemed to have been given and received on the date on which it was delivered, or, if posted, shall be deemed to have been given and received on the third day following the day on which it was posted.

thewealthworks may vary these terms by notice in writing or by email to the Licensee from time to time. Where the Licensee does not accept such amended terms it may terminate this agreement before such variation take effect provided it pays all fees due up to the date of termination and ceases all use of the Software on termination.

No rights are given to any third party hereunder under the Contracts (Rights of Third Parties) Act 1999 or otherwise unless expressly stated in these terms.

The Schedule – Maintenance and Support Provisions

Software Support Services (the “Services”)

The services comprise and are limited to the following:

  • fault diagnosis and where possible recommendations for correction subject to contractual restriction imposed by any third party, following the reporting of any Software problem by electronic mail to thewealthworks’ Support Centre. thewealthworks undertakes to investigate the problem within 8 working hours of receiving the message.  thewealthworks will classify the problem as critical or non-critical to the fundamental operation of the Software and the following procedure will apply:
    • Critical problems: thewealthworks will attempt to generate a fix by modifying the Software to conform to its specification and sending the modification to the Licensee as soon as possible.  thewealthworks will use all reasonable endeavours to correct any defect in the Software by reason of which it does not conform to its specification or to modify the Software to obviate or mitigate the effect of the defect.
    • Non-critical problems: thewealthworks will attempt to generate a fix for incorporation in the next release of the Software.  Where feasible, thewealthworks may provide a temporary workaround to the Licensee.  thewealthworks will determine what action, if any, it proposes to take, based, among other things, on the importance of the problem to the Licensee and the likely general benefit of any solution.  thewealthworks will not be obliged to correct a problem where the costs are likely to be excessive or the benefits to its Licensees at large are likely to be negligible.
  • fault diagnosis and correction will be carried out remotely unless, in the opinion of thewealthworks, they consider that on-site attendance is necessary;
  • thewealthworks’ Support Centre operate a telephone query answering service between the hours of 9 a.m. and 5 p.m. standard British time, Monday to Friday (excluding English Public Holidays);
  • thewealthworks’ Support Centre will attempt within a reasonable time to answer the Licensee’s query sent to it by electronic mail relating to the routine use and operation of the Software.

Additional Support Services

Subject to availability, thewealthworks will also offer to the Licensee the following services at such charges and on such terms as the parties may agree from time to time:

  • consultation for the resolution of any problems experienced by the Licensee in operating the software and not covered by the Services;
  • on-site services to carry out such work as the parties may from time to time agree;
  • consultation about enhancements to the Software.

Software Service Exclusions

thewealthworks is not obliged to support the Software if the Licensee is not using the version of the networking system or operating system specified by thewealthworks from time to time, or if the Licensee fails to maintain the Software at thewealthworks’ specified release level unless specifically agreed in advance by thewealthworks or the Licensee has not downloaded the latest version of the Software when prompted to do so.

thewealthworks will undertake responsibility for the Software only on the Licensed Computer System, any variations to which must be agreed by thewealthworks in advance.

Onsite maintenance is not included under this agreement, except where thewealthworks considers it necessary or desirable.

The Services do not include services in respect of defects or errors resulting from any modifications or enhancements to the Software not made by thewealthworks or made without thewealthworks’ prior written consent, or resulting from incorrect use of the Software or malfunctions due to external causes, including, but not limited to, failure or fluctuation of electrical supplies, hardware failures, accidents or natural disasters and other acts of force majeure.

Amount and Payment

The fees for the provision of the Services are included in the Annual Licence.

Disclaimers

thewealthworks will use its reasonable endeavours to perform the Services promptly, but no warranty is given in respect of any times for responses or performance by thewealthworks and time will not be of the essence.  thewealthworks is not liable for delay arising from factors outside its control.

Licensee Responsibilities

The Licensee will:

  • use the Software correctly and in accordance with the operating instructions given by thewealthworks and with suitable operating supplies;
  • designate primary and secondary contacts appropriately qualified and trained to an acceptable standard authorised to request Services and inform thewealthworks accordingly;
  • be solely responsible for the security of its confidential and proprietary information;
  • notify thewealthworks promptly of any Software malfunction;
  • if requested by thewealthworks, keep records, in a mutually agreed format, of the usage and performance of the Software and the Licensed Computer System in order to assist in diagnosing faults;
  • provide thewealthworks with access to and use of such of the Licensee’s information and facilities reasonably necessary to support the Software;
  • ensure that only properly trained employees operate or use the Software in accordance with the operating instructions supplied;
  • provide telephone and remote access facilities to thewealthworks’ specification for the remote provision of the Services.
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