Terms And Conditions

ADVISER TERMS AND CONDITIONS

MYPROSPERITY UK PTY LTD

Last updated: 9 November 2018

These Adviser Terms and Conditions form a legal agreement (the "Agreement") between you and Myprosperity UK Pty Ltd, a company incorporated in Australia under Australian Business Number 46 629 340 834 with its registered office at Level 1, 1 Oxley Road, Hawthorn, 3122, Australia ("MP" or "us" or "we") which sets out the terms upon which MP will provide you with access to the Platform, the White-labelled Version and/or the Premium White Labelled Version in accordance with your selected Subscription Level. By signing up with MP via the link provided and ticking the indicated box, you acknowledge that you have read, understood and agreed to be bound by this Agreement.

1. Definitions and interpretations

1.1 The definitions and rules of interpretation in this clause apply in the Agreement.

Account: means a registered account to enable access to and use of the Platform (and if applicable, White Labelled Version and Premium White Labelled Version) for the Adviser.

Adviser: the accounting and/or advisory firm who wishes to offer the Platform to its clients in accordance with the Agreement.

Adviser End User(s): a client or clients of the Adviser who have registered to use the White-labelled Version directly as a result of referral by the Adviser. Your subscription includes a specified number of included Starter user and Pro user subscriptions for the Platform. The Fee Schedule explains the Platform features available to Starter users and Pro users respectively.

Applicable Laws: means all laws, statutes, regulations and codes applicable to the existence or operation of the Agreement or the provision of the Services.

Charges: means the charges applicable to the Adviser’s Subscription Level specified in the Fee Schedule. Charges is also referred to as “price” and “pricing” on the Fee Schedule.

Confidential Information: means information that is proprietary or confidential and is either clearly labelled as such or would reasonably be considered to be confidential subject to clause 6.

Contract Year: means each consecutive 12-month period commencing on the Effective Date or anniversary thereof.

Control: means the ability to direct the affairs of another, whether by virtue of the ownership of shares, contract or otherwise.

Data Protection Laws: means unless and until GDPR is no longer directly applicable in the UK: (i) GDPR, the Data Protection Act 2018 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then (ii) any successor legislation to GDPR or the Data Protection Act 2018.

Documentation: means any published user guides or manuals produced by or on behalf of MP describing the Services and use of the Services.

Effective Date: means the date that MP notifies the Adviser of its acceptance of the Adviser following registration and acceptance of this Agreement.

End User Terms: means the End User Terms & Conditions between Adviser End Users and MP, as may be updated by MP from time to time.

End User Personal Data: means personal data relating to an Adviser End User which is processed pursuant to the Privacy Policy.

Fee Schedule: the schedule containing information relating to subscription and other fees and billing set out on the myprosperity subscriptions and billing pages on the Platform, or any other page(s) on the Platform notified by MP, which may be updated or amended by MP from time to time.

Force Majeure Event: acts, events, omissions or accidents beyond reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of MP or any other party), failure of a utility service or transport or telecommunication network, act of God, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

GDPR: means the European Union General Data Protection Regulation 2016/679.

Intellectual Property Right(s): means all intellectual property rights of any kind existing anywhere in the world whether or not registered and all applications, renewals and extensions of the same and whenever arising, registered or applied to be registered including copyright, database rights, design rights, patents, trade marks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information.

IPR Claim: has the meaning given to the term in clause 9.2.

MP IP: has the meaning given to the term in clause 5.1.

MP’s IT Systems: means the information technology infrastructure used by or on behalf of MP in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by MP or through the use of third-party services.

Permitted Purpose: means the business of the Adviser.

Platform: the website located at http://www.myprosperityuk.com that provides financial tracking tools to Adviser End Users and other persons on and subject to the End User Terms.

Premium White-labelled Version: a version of the White-labelled Version which contains additional functionality including bank feeds enabling linking of bank account data to the Platform.

Privacy Policy: means the MP privacy policy.

Service Levels: has the meaning specified in clause 10.1.

Services: means the services based on the Adviser’s Subscription Level that are provided by MP via the Platform including the White-labelled Version and the Premium White-labelled Version.

Subscription Level: also referred to as “plan”. It refers to the particular subscription level for the Platform access which the Adviser has selected during the course of registration to use the Platform, as varied from time to time in accordance with the Agreement. The available Subscription Levels are specified in the Fee Schedule and comprise Connect, Enhance, Accelerate, Mobile First and Enterprise.

Term: means the time period for which the Adviser uses the Platform under the terms of this Agreement to provide the Services to Adviser End Users.

User Materials: means any text, graphics, images, fonts, and other data or content uploaded to, or generated using, the Services by the Adviser or an Adviser End User.

Virus: means any thing or device (including any software, code, file or programme) which may: (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (iii) adversely affect the user experience, including worms, trojan horses, viruses, ransomware, spyware, other malicious software programmes and other similar things or devices.

White-labelled Version: means an iteration of the Platform which is accessed by Adviser End Users by clicking on a link supplied by the Adviser. It is available on two subscription levels, Starter and Pro (also referred to as the Premium White-labelled Version).

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires: (i) words in the singular shall include the plural and in the plural shall include the singular; and (ii) a reference to one gender shall include a reference to the other genders.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement and shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.

1.6 A reference to writing or written includes faxes and email.

1.7 References to clauses, schedules and appendices are to the clauses, schedules and appendices of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.

1.8 Use of the word "including" in this Agreement, also includes the words "without limitation" immediately following the word "including".

2. Services

2.1 Subject to the terms of the Agreement, MP hereby grants to the Adviser a non-exclusive, non-transferable right to grant to Adviser End Users access to and use of the Services during the Term for the Permitted Purpose.

2.2 MP shall create an Account for the Adviser and shall provide to the Adviser log-in details for that Account on or promptly following the Effective Date.

2.3 The Services may only be used by the officers, employees, agents and subcontractors of the Adviser and Adviser End Users and as otherwise specified in the End User Terms.

2.4 MP shall:

(a) use reasonable endeavours to maintain the availability of the Services to the Adviser, but does not guarantee 100% availability;

(b) maintain an internet site (being the White-labelled Version and/or the Premium White-labelled Version) which Adviser End Users may choose to register for and use to track their personal finances, in accordance with and subject to the End User Terms;

(c) give both the Adviser and Adviser End Users who register for use respectively, access to the White-labelled Version (including the Premium White-labelled Version subject to payment of the applicable Charges) via the appropriate links;

(d) give the Adviser access to a list of all Adviser End Users who are then registered to use the White-labelled Version (including the Premium White-labelled Version);

(e) provide agreed assistance to the Adviser via email and telephone during MP’s business hours in respect of promoting the White-labelled Version to its clients; and

(f) use reasonable endeavours to make the White-labelled Version available excluding any planned or unplanned maintenance outages and to respond to requests for support during MP’s business hours. However, MP does not guarantee that access to the White-labelled Version will be error-free or uninterrupted.

2.5 For the avoidance of doubt and notwithstanding the generality of 2.4(a) and 2.4(f), downtime caused directly or indirectly by any of the following shall not be considered a breach of the Agreement:

(a) a Force Majeure Event;

(b) a fault or failure of the internet or any public telecommunications network;

(c) a fault or failure of the Adviser's computer systems or networks;

(d) any breach by the Adviser of the Agreement; or

(e) any scheduled maintenance carried out in support of the Services.

2.6 The Adviser must not use or permit the use of the Services:

(a) in any way that is unlawful, illegal, fraudulent or harmful; or

(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.7 For the avoidance of doubt, the Adviser and any Adviser End User have no rights to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.

3. Adviser obligations

3.1 The Adviser shall:

(a) only make the Services available to Adviser End Users who have agreed to be bound by, and are bound by, the End User Terms and will immediately inform MP if it becomes aware of any breach of the End User Terms;

(b) actively and accurately promote the White-labelled Version to its clients using only marketing materials approved by MP in writing in advance;

(c) ensure that any Adviser information or material to be displayed on the White-labelled Version is current, correct and not misleading or defamatory and does not infringe any third party’s rights;

(d) ensure that any photographs or files provided are free of borders, watermarks or unauthorised advertising material and otherwise comply with MP’s notified requirements (noting that MP may reject non-complying materials);

(e) provide photographs and files in formats acceptable to MP, specifically (but subject to change): JPEG or jpg format, maximum size: 450 pixels width and 300 pixels height;

(f) ensure that Adviser End Users who register to use the White-labelled Version are aware that the Adviser will have access to the Adviser End User’s information;

(g) ensure that it is authorised to disclose to MP any personal information it discloses to MP;

(h) not use any MP IP other than as strictly permitted by the Agreement; and

(i) remain fully responsible for all acts and omissions of Adviser End Users as if they were its own.

3.2 The Adviser shall only use End User Personal Data in accordance with the Privacy Policy and the agreement between the Adviser and the End User and will not do anything to put MP in breach of any Data Protection Laws.

3.3 If the monthly Charges for Adviser End Users which Adviser is paying MP include digital signature functionality, that functionality is currently provided by OneSpan Data Security International, Inc (OneSpan) via a link from the Platform to the website operated by OneSpan at https://www.onespan.com. By accepting this Agreement, the Adviser is also accepting the Esignlive Terms and Conditions (as amended from time to time) which are located at https://www.onespan.com/terms-and-conditions .

3.4 During the Term, the Adviser agrees and undertakes to:

(a) comply in all respects with the Documentation and all Applicable Laws;

(b) be responsible for identifying, obtaining and maintaining all required approvals, authorisations, certifications, consents and licences as may be required by Applicable Laws for the purposes of receiving and using the Services; and

(c) promptly inform MP immediately of any changes in ownership or Control of the Adviser and of any change in its organisation or method of doing business which might affect the performance of the Adviser's duties in the Agreement.

3.5 The Adviser shall not, and shall ensure that Adviser End Users shall not:

(a) except to the extent expressly permitted under the Agreement:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means;

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or

(iii) use the Services to provide services to third parties;

(b) intentionally interfere with, or disrupt, the Services, server, or network connected to the Services (including MP’s IT Systems);

(c) access all or any part of the Services in order to build a product or service which competes with the Services;

(d) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except Adviser End Users and Adviser End Users shall not be entitled to make the Services available to other Adviser End Users, but shall be entitled to allow the use by Guests as further described in the End User Terms;

(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as permitted under this Agreement and the End User Terms.

(f) remove, delete, alter, or obscure any trade marks, warranties, or disclaimers, or any copyright, trade mark, patent, or other intellectual property or proprietary rights notices from any portion of the Services; or

(g) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other MP customer), or that violates any Applicable Laws.

3.6 The Adviser shall, and shall ensure that Adviser End Users shall, use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify MP.

3.7 The Adviser assumes, and shall ensure that Adviser End Users assume, responsibility for ensuring that the Services, the results and User Materials generated from the use of the Services, are sufficient for the needs of the Adviser and Adviser End Users. Save as expressly set out in this Agreement, MP shall have no liability for any damage caused by errors or omissions in any information (including any pre-existing User Materials), instructions, or scripts provided to MP by the Adviser or any Adviser End User in connection with the Services, or any actions taken by the MP at the Adviser’s direction.

3.8 MP shall not be responsible or liable for any delay or failure of performance caused in whole or in part by the Adviser’s delay in performing, or failure to perform, any of its obligations under the Agreement.

4. Charges and payment

4.1 The Adviser shall pay the Charges to MP in accordance with this clause 4.

4.2 All payments to MP shall be payable in accordance with the terms of MP’s invoices.

4.3 MP will provide a monthly invoice to the Adviser via the Platform, in the Payment & Plan section.

4.4 The Adviser must pay the Charges by direct debit (using such payment details as are notified by MP to the Adviser from time to time).

4.5 The Adviser must pay the Charges to MP within the period of 30 days following the receipt of an invoice issued in accordance with this clause 4.

4.6 If MP has not received payment of any invoice by the due date, without prejudice to any other rights and remedies of MP:

(a) MP may, without liability to the Adviser, disable the Adviser's account and disable the Adviser’s and/or Adviser End Users’ access to all or part of the Services and MP shall be under no obligation to provide access to the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to [3%] over the then current base lending rate of HSBC bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

4.7 The Adviser shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to MP.

4.8 All amounts and Charges stated or referred to in the Agreement:

(a) shall be payable in GBP;

(b) are, subject to clause 4, non-cancellable and non-refundable; and

(c) are inclusive of value added tax (or other relevant sales tax), which shall be displayed on MP's invoice(s) at the appropriate rate.

4.9 MP shall be entitled to increase the Charges at any time during the Term upon 30 days' prior notice to the Adviser and the Charges shall be deemed to have been amended accordingly.

4.10 If the Adviser’s Subscription Level includes a cash contribution from MP to a client event, as indicated in the Fee Schedule, the Adviser must obtain MP’s prior written approval to an event plan for the event. Subject to MP approving the event plan and to the Adviser giving MP copies of its expense receipts, MP will reimburse the Adviser for those expenses, up to the amount stated in the Fee Schedule, for a single event only. For clarity, MP’s client event contribution is a one-off contribution only, not annual.

4.11 The Adviser shall permit MP to audit the use of the Services in order to establish compliance with the Agreement and the End User Terms. Such an audit may be conducted no more than once per quarter, at MP's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Adviser’s normal conduct of business.

4.12 If any of the audits reveal that any password has been provided to any individual who is not an Adviser End User in a manner not permitted in the End User Terms, without prejudice to MP's other rights, MP shall be entitled to disable such passwords.

4.13 If any of the audits reveal that the Adviser has underpaid Charges to MP then, without prejudice to MP's other rights, the Adviser shall pay to MP an amount equal to such underpayment within 14 days of the date of the relevant audit.

5. Intellectual Property Rights

5.1 Other than any licences expressly granted under this Agreement, MP does not grant any license of, right in or make any assignment of any of its Intellectual Property Rights. In particular, except as expressly provided in the Agreement, the Adviser shall have no rights in respect of Intellectual Property Rights owned by or licensed to MP (" MP IP ") and its associated goodwill, and the Adviser hereby acknowledges that all such rights and goodwill shall inure for the benefit of and are (and shall remain) vested in, MP or its licensors (as applicable).

5.2 The Adviser shall, at the expense of MP, take all such steps as MP may reasonably require to assist MP in maintaining the validity and enforceability of MP IP during and after the Term.

5.3 The Adviser shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any MP IP and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

5.4 The Adviser shall promptly inform MP of any actual or suspected infringement of MP IP and take such reasonable action as MP shall, at MP’s expense, require in relation to the suspected or actual infringement of MP IP.

5.5 The Adviser shall, and shall ensure that each Adviser End User, grant MP a non-exclusive, non-transferable, licence to use, copy, store, transmit and display the User Materials to the extent necessary or reasonable to enable MP to provide the Services

6.Confidentiality and publicity

6.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

6.2 Subject to clause 6.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.

6.3 The Adviser shall ensure that its personnel comply with the confidentiality provisions of the Agreement and execute and comply with any non-disclosure agreement which MP may require such personnel to execute. The Adviser shall ensure that the Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

6.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 6.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

6.5 Unless the other party submits a written objection to the same, either party may issue such press releases, make such public announcements, or develop such case studies regarding the existence, subject matter, or terms of the Agreement, the wider transactions contemplated by it, or the relationship between the parties as they deem appropriate. In order to enable MP to utilise its rights under this clause 6.5, the Adviser grants MP a non-exclusive, non-transferable, licence to use, copy, store, transmit and display the Adviser’s Intellectual Property Rights to the extent necessary or reasonable to enable MP to issue such press releases or public announcements on MP’s website or in any other marketing or other publicity materials which MP may choose to create in relation to the MP brand, business, and services.

6.6 The provisions of this clause 6 shall survive termination of the Agreement, however arising.

7. Warranties

7.1 Each party warrants and undertakes that it:

(a) has full capacity and authority and all necessary consents to enter into and to perform the Agreement and to grant the rights and licences referred to in the Agreement and that the Agreement is executed by its duly authorised representative and represents a binding commitment on it; and

(b) shall comply with all Applicable Laws in the performance of its obligations under the Agreement.

7.2 MP warrants to the Adviser that MP will use reasonable endeavours to ensure:

(a) it has all access to necessary know-how, expertise and experience to perform its obligations under the Agreement;

(b) the Platform will be free from Viruses and will incorporate security features reflecting the requirements of good industry practice.

7.3 MP warrants to the Adviser that to the best of its knowledge, the Services, when used by the Adviser in accordance with the Agreement, will not breach any laws, statutes or regulations applicable under English law.

7.4 MP warrants to the Adviser that to the best of its knowledge, the Services, when used by the Adviser in accordance with the Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

7.5 If MP reasonably determines, or any third party alleges, that the use of the Services by the Adviser in accordance with the Agreement infringes any person's Intellectual Property Rights, MP may modify the Services in such a way that they no longer infringe the relevant Intellectual Property Rights.

7.6 To the fullest extent permitted by Applicable Laws, MP expressly excludes all other warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law which relate to the Platform.

8. Acknowledgements and warranty limitations

8.1 The Adviser acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, MP gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

8.2 The Adviser acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, MP gives no warranty or representation that the Services will be entirely secure.

8.3 The Adviser acknowledges that the Services are designed to be compatible only with that software and those systems which MP has specified as being compatible; and MP does not warrant or represent that the Services will be compatible with any other software or systems.

8.4 The Adviser acknowledges that MP will not provide any legal, financial, accountancy or taxation advice under the Agreement or in relation to the Services; and, except to the extent expressly provided otherwise in the Agreement, MP does not warrant or represent that the Services or the use of the Services by the Adviser will not give rise to any legal liability on the part of the Adviser or any other person.

9. Indemnity

9.1 The Adviser shall indemnify MP in full and on demand, and keep MP indemnified in full and on demand, from and against any and all losses, damages, liabilities, costs or expenses (including legal costs) it incurs or suffers howsoever caused arising from:

(a) the Adviser's breach of the Agreement and/or the End User Terms;

(b) actual or suspected breach by the Adviser and/or an Adviser End User of Data Protection Laws;

(c) an Adviser End User’s breach of the End User Terms;

(d) an infringement by the Adviser of MP IP; or

(e) any alleged or actual infringement of the User Materials or the rights of any third party, provided always that such claim does not result from a breach by MP of the Agreement;

including from any act, omission or default of any of its employees, subcontractors or any other person acting under the Adviser's direction.

9.2 Subject to clauses 9.3 and 9.4, MP shall defend, indemnify and hold harmless the Adviser against any finally awarded costs, damages, and/or legal fees arising out of or in connection with any claim that the Platform infringes the Intellectual Property Rights of any third party (an "IPR Claim").

9.3 If any third party makes, or notifies an intention to make, an IPR Claim against the Adviser, then the Adviser shall:

(a) as soon as reasonably practicable, give written notice of the claim to MP, specifying the nature of the claim in reasonable detail;

(b) not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of MP (such consent not to be unreasonably conditioned, withheld or delayed);

(c) give MP and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Adviser, so as to enable MP and its professional advisers to examine them and to take copies (at MP’s expense) for the purpose of assessing the claim; and

(d) take such action as MP may reasonably request to avoid, dispute, compromise or defend the claim.

9.4 The indemnity set out in clause 9.2 shall not apply where the Adviser has integrated the Platform with the Adviser’s own platform.

10. Support Services

10.1 MP shall use commercially reasonable endeavours to make the Services available to the Adviser and Adviser End Users in accordance with the service levels (the " Service Levels "). However, MP may, for technical, legal, or operational reasons, alter the specification of, or temporarily suspend access to, the Services, provided that reasonable notice is provided to the Adviser and such alterations or suspension do not materially adversely affect the functionality or performance of the Platform.

10.2 Except as set forth in clause 10.1, MP does not warrant that the Adviser’s or Adviser End Users’ use of the Services will be uninterrupted or error-free, or that the Services and/or the User Materials generated by an Adviser End User using the Services will meet the Adviser’s or that Adviser End User’s requirements.

10.3 MP is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Adviser acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

11. Adviser End Users

11.1 In relation to the Adviser End Users, the Adviser undertakes that:

(a) each Adviser End User shall keep a secure password for their use of the Services and that each Adviser End User shall keep their password confidential; and

(b) it shall maintain a written, up to date list of current Adviser End Users and provide such list to MP within 5 days of MP's written request at any time.

12. Non-exclusivity

The Agreement shall not prevent MP from entering into the same or similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are the same or similar to those provided under the Agreement.

13. Limitation of liability

13.1 Except as expressly and specifically provided in the Agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from the Agreement.

13.2 Nothing in the Agreement excludes the liability of the either party:

(a) for death or personal injury caused by either party's negligence; or

(b) for fraud or fraudulent misrepresentation.

13.3 Subject to clause 13.2:

(a) MP shall not be liable whether in tort (including for negligence), breach of statutory duty, contract, misrepresentation, restitution or otherwise for any loss arising from loss of profits or anticipated savings, loss of business contracts or opportunities, depletion of goodwill and/or similar losses, loss or corruption of data software or information, pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in relation to the Agreement;

(b) MP's total aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, for all claims arising under or in connection with the performance or contemplated performance of the Agreement shall be limited for all claims which relate to performance or contemplated performance of this Agreement in each Contract Year to the total Charges paid or payable to MP during that Contract Year;

14. Term and termination

14.1 The initial Term of the Agreement is 12 months.

14.2 If still in force at the end of the initial Term, the Agreement then automatically renews for successive further 12 month periods, until terminated as provided in the Agreement. Either party may terminate the Agreement at any time after the initial Term on 30 days’ notice in writing to the other party. No refund applies on termination.

15.3 MP may remove any information or branding of the Adviser from the White-labelled Version or discontinue access to the White-labelled Version by the Adviser and Adviser End Users on termination of the Agreement, or at any other time for reasonable cause. The End User Terms deal with access to the Adviser End Users’ information after termination of the Agreement or termination of the Adviser End User’s access to the Platform.

14.4 The Agreement shall, unless otherwise terminated as provided in this clause 14.4, commence on the Effective Date and shall continue unless:

(a) either party notifies the other party that the Agreement should terminate by giving in writing, at least 30 days notice of termination; or

(b) otherwise terminated in accordance with the provisions of the Agreement.

14.5 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any of the terms of the Agreement which is not capable of remedy; or

(b) the other party commits a material breach of any of the terms of the Agreement and fails to remedy that material breach within 30 days of receiving notice to remedy; or

(c) the other party summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking(s) or income, has passed a resolution for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has a proposal made for a scheme of arrangement, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is subject to an event analogous to any of the foregoing, or suffers any similar or analogous action in any jurisdiction; or

(d) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.

14.6 For the purposes of clause 14.5, an occurrence of any one of the following shall be considered to be a material breach incapable of remedy:

(a) breach by the Adviser of clauses 3.1 and/or 3.2; and

(b) breach by an Adviser End User of the any terms of the End User Terms.

14.7 Within [30 days] following the termination of the Agreement for any reason, the Adviser must pay to MP any Charges in respect of Services provided to the Adviser before the termination of the Agreement without prejudice to the parties' other legal rights

14.8 In addition to the provisions of clause 14.5 and without affecting any other right or remedy available to it, MP may suspend access to the Services if the Adviser fails to pay any amount due under the Agreement on the due date for payment. Further, MP may terminate the Agreement with immediate effect by giving written notice to the Adviser if the Adviser remains in default for not less than 30 days after the due date for payment.

14.9 Without prejudice to any other rights or remedies to which MP may be entitled, MP may terminate the Agreement without liability to the Adviser if:

(a) there is a change of Control of the Adviser; or

(b) the Adviser purports to assign or transfer any of its rights or obligations under the Agreement.

14.10 On termination of the Agreement for any reason:

(a) all licences, consents and permissions granted under the Agreement shall immediately terminate and the Adviser shall immediately cease to use the Services and the Documentation;

(b) MP may disable all Adviser and Adviser End User access to the Services; and

(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

14.11 Except to the extent that the Agreement expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.

15. Force majeure

MP shall have no liability to the Adviser under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by a Force Majeure Event, provided that MP promptly notifies the Adviser about the Force Majeure Event and its expected duration.

16. Variation

No variation of the Agreement shall be valid unless it is in writing (which for this purpose does not include email) and signed by or on behalf of each of the parties by its respective authorised representatives.

17. Waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18. Rights and remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19. Applicable laws

In performing their obligations under the Agreement, the parties shall comply with all Applicable Laws from time to time.

20. Costs

Except as otherwise provided in the Agreement, each party shall pay its own costs in connection with the negotiation, preparation, execution and performance of the Agreement, and all documents ancillary to it.

21. Severance

21.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

21.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22. Entire agreement

22.1 The Agreement 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 the Agreement by or on behalf of the parties and relating to its subject matter.

22.2 Each party acknowledges that in entering into the Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, representations or undertakings which were made by or on behalf of the other party in relation to the subject-matter of the Agreement at any time before its signature (together "Pre-Contractual Statements"), other than those which are set out in the Agreement. Each party hereby waives all rights and remedies which might otherwise be available to it in relation to such Pre-Contractual Statements.

23. Counterparts

The Agreement may be executed in any number of counterparts and by the parties on separate counterparts, but shall not be effective until each party has executed at least one counterpart. Each counterpart, when executed, shall be an original of the Agreement and all counterparts shall together constitute one instrument.

24. Assignment and sub-contracting

24.1 The Adviser shall not, without the prior written consent of MP, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

24.2 MP may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

25. No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power), except as expressly provided in the Agreement.

26. Third party rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third parties) Act 1999.

27. Notices

Any notice to MP may be given by email to support@myprosperityuk.com and to the Adviser at the Adviser’s email address specified in the application form at the time the Adviser registered for access to the Platform. Either party may change their email address for notice purposes by informing the other party of the change in writing. Notices take effect on the day of sending if sent before 4pm GMT, otherwise, they take effect on the following day.

28. Governing law

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

29. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).