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Subscriber Agreement
3. Charges
1. Interpretation
3.1 The Subscriber shall pay the Charges by
In the terms and conditions of this Agreement: way of direct debit or in such a manner as
the Service Provider may from time to
“The Service Provider” means AdviserPlus Limited, time determine to the Service Provider
having its place of business at 8 Lower Fitzwilliam and the Subscriber agrees to execute a
Street, Dublin 2 which expression shall include its direct debit mandate in favour of the
successors and assigns. Service Provider prior to the
Commencement Date. The Charges paid
“The Subscriber” means the company or person by direct debit shall be inclusive of VAT,
subscribing to this Agreement by paying the where applicable. The Charges shall be
Charges and which expression shall include, where payable in accordance with the Service
appropriate, its successors and permitted assigns. Provider’s current charge rates as notified
to the Subscriber.
“Charges” mean the charges and other costs and
expenses payable by the Subscriber pursuant to 3.2 In the event of the Subscriber failing to
the terms of this Agreement and more particularly, make any payment of the Charges in
clause 3.1. accordance with clause 3.1, the Service
Provider may immediately terminate this
“Commencement Date” means the date when the agreement and cease providing the
Service Provider begins to provide the Subscriber Services without notice to the Subscriber.
with access to the Services.
3.3 The Charges payable under the terms of
“Content” means the information and data made this Agreement are related to the Services
available by the Service Provider to the Subscriber which the Service Provider supplies to the
as part of or through the provision of the Services Subscriber in accordance with clause 4
which may include third party content. “Content” and the Charges may vary from
excludes any client information which the Subscriber to Subscriber depending on
Subscriber has stored in the Subscriber’s CRM. the Services of which they choose to
avail.
“Parties” mean the parties to this Agreement or
alternatively, a party to the Agreement
3.4 A Subscriber paying by monthly direct
“Services” means the Services made available by debit may cancel its subscription by giving
the Service Provider to the Subscriber by electronic AdviserPlus one month’s notice in writing.
means in accordance with the terms of this Charges are not refundable to a
Agreement and which shall be made available for Subscriber who has paid for the Services
the sole purpose of the Subscriber’s business. in advance.
“Subscriber’s CRM” means the online Customer 4. Services
Relationship Management system (CRM) which
may be provided to the Subscriber as part of the 4.1 The Service Provider shall be free to vary
Services and which the Subscriber may use to the Services from time to time and to add
store and manage the information about the or remove services.
Subscriber’s clients and prospective clients.
4.2 The Subscriber may choose to avail of
“Product Provider” means any institution which some or all of the Services and the
acts as a financial product producer (and which Charges which the Subscriber will pay for
therefore will hold information about any products the Services may vary accordingly in
or policies which the Subscriber has placed with accordance with the then current Charges
that Product Provider on behalf of the Subscriber’s of the Service Provider.
clients.)
5. Rights and Obligations of the
2. Grant of Licence Subscriber
In consideration of the payment of Charges by the 5.1 The Subscriber shall be entitled to display
Subscriber to the Service Provider and subject to the Content on and download the Content
the terms and conditions of this Agreement, the onto the Subscriber’s computer equipment
Service Provider agrees to grant to the Subscriber and to make copies of the Content in hard
in accordance with the terms of this Agreement a copy form for the purposes of its
non-exclusive and non-transferable licence to avail business.
of the Services only for the purposes of carrying on
its business. 5.2 The Subscriber shall not without the prior
written consent of the Service Provider
use, store, download, sell, redistribute or 6. Warranty
deal with the Content for any other
purpose other than for the purposes of its 6.1 The Service Provider undertakes to use its
business. reasonable endeavours to ensure the
provision of the Services and to correct
5.3 The Subscriber shall not be permitted to defects in the provision of the Services as
disclose the Content to any third party soon as possible but makes no
unless such disclosure is part of its representation or warranty express or
business. implied that the provision of the Services
will be without defect, delay or
5.4 The Subscriber shall not and shall ensure interruption and expressly excludes any
that no other person shall make any warranty in respect thereof.
additions, modifications, adjustments or
alterations to the Content while they form 6.2 The Service Provider makes no
part of the Services. representation or warranty express or
implied regarding the availability of any
5.5 The Subscriber shall not tamper, attempt particular Content or data to the
to rectify or permit any persons other Subscriber or as to the accuracy or
than the Service Provider to rectify any completeness of the Content.
fault or inaccuracy in the Content while
they form part of the Services and the 6.3 Subject to clause 6.1, the Service
Subscriber agrees to immediately notify Provider makes no warranty or
the Service Provider of any fault or warranties, express or implied, in relation
inaccuracy in the Content. to the Services and/or the Content.
5.6 The Subscriber confirms and 6.3 All terms, warranties, representations and
acknowledges that any editorial input and conditions whether made orally or implied
control in relation to the Content lies by circumstances, custom, contract,
solely with the Service Provider. The equity, statute or common law are hereby
Subscriber shall use its best endeavours excluded. Without prejudice to the
to ensure the protection of the integrity of generality of the foregoing all terms
the Content supplied by the Service implied by Sections 13, 14 and 15 of the
Provider. Sale of Goods Act 1893 are hereby
excluded to the extent that such is fair
5.7 Notwithstanding the termination and reasonable. All terms implied by the
provisions in clause 9, the Service Sale of Goods and Supply of Service Act,
Provider may immediately terminate this 1980 are hereby excluded including,
Agreement by notice to the Subscriber in without prejudice to the foregoing,
the event of the Subscriber breaching any Section 39 of the Sale of Goods and
of its obligations under this clause 5. Supply of Services Act 1980. For the
avoidance of doubt, the Subscriber
confirms that it enters into this
5.8 The Subscriber agrees to disconnect its
Agreement in the course of its business
computer equipment or any part or parts
and not as a consumer for the purposes of
thereof from accessing and using the
or within the meaning of the Sale of
Services where requested to do so by the
Goods and Supply of Services Act 1893
Service Provider where in the opinion of
and 1980.
the Service Provider, such equipment is or
has been the cause or is likely to be the
cause of failures, interruptions, errors or 7. Limitation of Liability and Indemnity
defects in the Services or the Content.
7.1 The Subscriber shall indemnify the Service
5.9 The Subscriber shall be solely responsible Provider in full and hold the Service
for using any information obtained Provider harmless in respect of any loss,
through the Services or from the Content damages, proceedings, suits, third party
in a manner which complies will all claims, judgements, awards, expenses and
regulatory and legal requirements in the costs (including legal costs) incurred by or
State and outside of the State. taken against the Service Provider as a
result of the negligence, fault, error,
omission, act or breach of the Subscriber or
5.10 The Subscriber agrees to comply with any of its employees, staff, contractors, agents
guidelines which the Service Provider may or representatives and for any breach of
issue from time to time in relation to this Agreement or of any legal or regulatory
security, usage of the Services, viruses requirement whatsoever.
and the Content.
7.2 Notwithstanding the provisions of clause 7.1
neither party shall be liable to the other for
any special, incidental, indirect, punitive or
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consequential loss or damages, whether documentation; or (iv) which is required to
occasioned by the negligence, fault, error, be disclosed by law.
omission, act or breach of the other party,
its employees and contractors and sub- 8.2 The Parties will procure and ensure that
contractors and which shall include, without each of its employees, agents, servants,
limitation, loss of business, revenue or sub-contractors and advisers will comply
profits, loss of use or data, loss of savings with the provisions contained in this clause.
or anticipated savings, loss of investments,
loss of goodwill or reputation, capital costs 8.3 If either Party becomes aware of any
or loss of extra administrative cost whether breach of confidence by any of its
or not foreseeable, arising out of or in employees, officers, representatives,
connection with this Agreement, whether in servants, agents or sub-contractors it shall
an action based on contract, equity or tort promptly notify the other party and give the
including negligence or other legal theory. other party all reasonable assistance in
7.3 Notwithstanding any other provision of this connection with any proceedings which the
Agreement, the aggregate liability of the other party may institute against any such
Service Provider for or in respect of all person.
breaches of its contractual obligations under
this Agreement or breaches of any legal or 8.4 This clause shall survive the termination of
regulatory requirements and for all this Agreement.
representations, statements and tortious
acts or omissions (including negligence but
excluding negligence causing loss of life or 9. Data
personal injury) arising under or in
connection with this Agreement shall in no 9.1 The Service Provider is regulated under the
event exceed the annual Charges paid by Data Protection Acts 1988 and 2003 as a
the Subscriber to the Service Provider registered Data Processor.
pursuant to this Agreement for the year in
which the event giving rise to such liability 9.2 Data held within the Subscriber’s CRM
occurred. remains the property of the Subscriber. In
the event of the termination of this
7.4 All provisions of this Agreement which limit agreement for any reason, the data will be
or exclude the Service Provider's liability in returned to the Subscriber in an accessible
respect of Content (including but not limited electronic or paper format if so requested.
to clauses 6 and 7) shall also apply to so The data will then be permanently removed
limit and exclude the liability of any third from the Service Provider’s servers.
party supplier of such Content.
9.3 Where the Subscriber requests the Service
Provider to download the Subscriber’s client
8. Confidential Information and Security
and policy information from a Product
Provider on the Subscriber’s behalf for use
8.1 During and after this Agreement, the in the Subscriber’s CRM:
Parties will keep in confidence and use only
for the purposes of this Agreement all 9.3.1 The Subscriber will give the
Confidential Information. Confidential Service Provider written
Information means information belonging or permission to access the client
relating to the parties, their business or and policy information on their
affairs, including without limitation, behalf and will furnish the
information relating to research, Service Provider with the
development, Charges, Services, processes, necessary details as required by
data, diagrams, graphs, trade secrets, each Product Provider.
business plans, customers, finances,
personnel data, and other material or 9.3.2 Any data downloaded by the
information considered confidential and Service Provider on behalf of a
proprietary by the Parties or which either Subscriber from a Product
Party is otherwise informed is confidential Provider may replace data
or might or ought reasonably expect that previously downloaded on behalf
the other party would regard as confidential of that Subscriber from that
or which is marked "Confidential". Product Provider.
Confidential Information does not include
any information (i) which one party knew 9.3.3 The Service Provider and the
before the other Party disclosed it to that Product Provider take no
party; (ii) which has become publicly known responsibility for incorrect or
through no wrongful act of either party, or inaccurate data or gaps in data
either parties’ employees or agents; or (iii) produced by any of the Product
which either party developed Providers.
independently, as evidenced by appropriate
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9.3.4 It is wholly the Subscriber’s into any relationship or permits any interest
responsibility to exercise care being taken by any third party which could
and attention when using materially prejudice, in the opinion of the
downloaded data (in particular Service Provider, the Service Provider’s
quoted policy values). business interests or be otherwise materially
detrimental to the Service Provider’s
9.4 The Subscriber confirms that it has obtained goodwill or business.
consent, in accordance with Data Protection
Law, of any relevant policy holders to the
disclosure by the Product Provider of the 10.4 On termination of this Agreement all rights
Data to the Subscriber and the Subscriber and obligations of the Parties under this
will only access, use and process the Data Agreement shall automatically terminate
to the extent to which the relevant policy except for any rights of action, rights
holder has so consented. and/or obligations which may have accrued
prior to termination and any rights and/or
9.5 The Subscriber agrees to indemnify and obligations which expressly or by
hold harmless and keep so indemnified on implication are intended to commence or
demand the Product Provider from and continue in effect on or after termination.
against any costs, claims, demands,
damages, losses, liabilities, expenses
11. Force Majeure
(including damage to reputation, goodwill,
loss of profits and/ or legal costs) and any
11.1 Neither party to this Agreement shall be
investigations arising out of or in connection
liable to each other for any loss or damage
with any actual or alleged breach or failure
suffered by the other (save the Subscriber’s
by the Subscriber and/or its employers,
obligation to pay the Charges in accordance
agents or contractors to comply with the
with clause 3) due to delay in performance
equivalent to clause 9.4.
of or failure to perform either party’s
obligations, resulting from any cause
9.6 Clauses 9.3.3, 9.4 & 9.5 survive the
beyond the parties’ reasonable control
termination (for whatever reason) or
including, but not limited to, acts of God,
expiration of the relevant agreement and
acts of terrorism, outbreak of disease, fires,
are for the benefit of, and enforceable by,
floods, trade disputes, embargos, civil
the Product Provider, that AdviserPlus is
unrest. Either party shall inform the other
acting as the Product Producer’s agent
within seven days of any force majeure
(where agreed) in such respect.
situation coming to its knowledge and
affecting performance under this Agreement
and supply satisfactory evidence thereof.
10. Term and Termination
Should any such event occur, either party
to this Agreement may opt to terminate the
10.1 Either Party may terminate this Agreement
Agreement if the other party is unable to
at any time during the term of this
perform its obligations for a period in
Agreement, with or without cause, upon
excess of 60 days after the date of the
thirty 30 days prior written notice to the
occurrence of the event without either party
other Party.
incurring any liability for any loss or
damage of whatsoever nature howsoever
10.2 Either Party may terminate this Agreement
arising thereby occasioned.
by written notice to the other Party where the
other party is subject of an order or an
effective resolution is passed or a petition is 12. Miscellaneous
presented for its winding up, or there is
convened a meeting for the purpose of or 12.1 The Subscriber shall not assign, sub-licence
purposes to enter into an examinership, or or otherwise transfer this Agreement or any
arrangement or composition for the benefit part of its right or obligations hereunder
of its creditors, or if a receiver or examiner whether in whole or in part without the
is appointed over its undertaking or part prior written consent of the Service
thereof, or if it shall be deemed unable to Provider.
pay its debts pursuant to section 213 of the 12.2 If any provisions of the Agreement are held
Companies Act 1963 (as extended and/or to be unenforceable, illegal or void in whole
amended) or if it commences or has filed or in part the remaining portions of the
against it any bankruptcy, reorganisation, Agreement shall remain in full force and
liquidation or insolvency proceeding under effect.
any law in any country.
12.3 A waiver by either party to this Agreement
10.3 The Service Provider may terminate this of any breach by the other party of any of
Agreement immediately and without notice the terms of this Agreement or the
if the Subscriber breaches any of the terms acquiescence of such party in any act which
and conditions of this Agreement or if the but for such acquiescence would be a
Subscriber engages in any activity or enters
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breach as aforesaid, will not operate as a
waiver of any rights or the exercise thereof.
12.4 This Agreement shall not constitute a
partnership, joint venture or agency
between the parties.
12.5 Any notice to be given shall be sent by email
or by letter sent by ordinary post.
12.6 Save as provided for elsewhere in this
Agreement, this Agreement represents the
entire of the understanding of the Parties
concerning the subject matter of this
Agreement and overrides and supersedes all
prior promises, representations,
understandings, arrangements, agreements,
letters of intent or heads of agreement
concerning the same which are hereby
revoked by mutual consent of the parties.
12.7 The terms and conditions of this Agreement
may be amended from time to time by the
Service Provider and the up to date terms
and conditions shall be accessible on the
Service Provider’s website.
13. Choice of Law and Choice of
Jurisdiction
13.1 All disputes between the Parties arising out
of or in any way relating to the Agreement or
any other disputes between the Parties in
any way connected with the subject matter
of the Agreement shall be governed by the
laws of Ireland.
13.2 Each of the Parties hereby submits to the
exclusive jurisdiction of the Irish Courts for
the purpose of any proceedings arising out of
or in any way relating to the Agreement or
any other proceedings in any way connected
with the subject matter of the Agreement.
13.3 Nothing contained in clause 12.2 shall limit:
13.3.1 the right of the Parties to seek provisional or
protective relief in the courts of another state
prior to, during or after any substantive
proceedings have been instituted in Ireland
pursuant to clause 12.2; or
13.3.2 the right of the Parties to bring enforcement
proceedings in another state on foot of an
Irish judgment.
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