SYNAPTIC SOFTWARE LIMITED

ON-LINE DATA AGREEMENT - [STANDARD]

VERSION 1.6
Last Updated 19/09/2018

CONTENTS

1. INTERPRETATION

2. SERVICE

3. ACKNOWLEDGEMENT

4. OBLIGATIONS OF THE COMPANY

5. OBLIGATIONS OF THE SUBSCRIBER

6. LIMITATION OF LIABILITY

7. INTELLECTUAL PROPERTY RIGHTS

8. CONFIDENTIALITY

9. DURATION AND TERMINATION

10. FORCE MAJEURE

11. ENTIRE AGREEMENT

12. WAIVER OF RIGHTS BASED ON MISREPRESENTATION

13. ASSIGNMENT AND SUBCONTRACTING

14. NO PARTNERSHIP OR AGENCY

15. COSTS AND EXPENSES

16. INVALIDITY

17. AMENDMENT AND WAIVER

18. SURVIVORSHIP

19. NOTICES

20. LAW AND JURISDICTION

21. SYNAPTIC SOFTWARE LIMITED’S (SYNAPTIC) USE OF ‘COOKIES’

THIS AGREEMENTis made on each date on which you (the "Subscriber") indicate your willingness to be bound by these terms in the course of the logging on to the System between you and SYNAPTIC SOFTWARE LIMITED (registered in England under No 3136234) whose registered office is at 30 Berners Street, London, W1T 3LR.("Synaptic")

INTRODUCTION

A. Synaptic has developed software which enables it, via the Internet, to receive from a company from time to time details of the products that that company is prepared to make available for sale.

B. Synaptic formats those details and forwards them to independent financial advisers and other customers from time to time to enable them to compare financial products available to them.

C. This Agreement contains the terms between Synaptic and the Subscriber which is a company.

  1. INTERPRETATION

    1. In this Agreement unless the context requires otherwise:

      2. "Customer" means an independent financial adviser or other third party to which Formatted Data is forwarded by Synaptic from time to time;

      "Data" means data in relation to products supplied by the Subscriber from time;

      "Documentation" means the user manuals and other associated documentation (in both hard copy and electronic form) supplied by Synaptic from time to time relating to the System;

      "Formatted Data" means Data that has been entered into the System (or otherwise provided by the Subscriber to Synaptic) and formatted by the Subscriber and/or Synaptic;

      "Intellectual Property" means all patents, trade marks, service marks, registered designs, utility models, applications for the rights to apply for any of the foregoing, unregistered design marks, trade or business names, copyright and database rights, any rights in any invention, discovery or process, confidential information or know-how and documentation in any part of the world, applications for any of the foregoing and all revivals, extensions and renewals of the same;

      "Internet" means the global network of computer networks known as the Internet;

      "Modifications" means improvements, modifications, adaptations, error corrections, fixes, enhancements, updates and upgrades to the Software created by Synaptic from time to time;

      "Normal Working Hours" means the hours between 9.00am and 5.00pm each day excluding Saturdays, Sundays and public holidays;

      "Password" means the combination of letters and/or digits necessary to enable the Subscriber to access the Site;

      "Site" means the Internet page on which a copy of the Formatted Data is situated;

      "Software" means the software programs used by Synaptic in relation to the Data and the Formatted Data from time to time;

      "System" means the Software and any software, hardware and services of Synaptic necessary to enable Synaptic to receive and process Formatted Data;

      "Virus" means any program which propagates itself, whether via disk or electronic network, to cause disruption.

    2. Reference to a clause or schedule is to a clause or the schedule to this Agreement unless the context requires otherwise.

    3. Reference to the singular includes the plural and vice versa, and reference to a gender includes the other genders unless the context requires otherwise. Reference to a "person" includes any individual, firm, unincorporated association or body corporate.

    4. Reference to a statutory provision includes a reference to that statutory provision as from time to time amended, extended or re-enacted and any regulations made under it.

    5. The headings in this Agreement are for ease of reference only and shall not affect its construction or interpretation.

  2. SERVICE

    3. Subject to the Subscriber complying with its obligations under this Agreement, Synaptic agrees to assist the Subscriber to convert Data into Formatted Data and to forward that Formatted Data to Customers from time to time.

  3. ACKNOWLEDGEMENT

    4. The Subscriber acknowledges that:

    1. by despatching to Synaptic (whether in electronic form or otherwise) any Formatted Data the Subscriber is irrevocably authorising Synaptic to:

      1. use that Formatted Data in accordance with the provisions of this Agreement to modify the Formatted Data on the Site (by amendment, addition, deletion or otherwise) with effect from the date specified by the Subscriber in accordance with the Documentation or (if no date is specified) with effect from the date notified to the Subscriber by Synaptic;

      2. make Formatted Data available to Customers;

    2. Synaptic is entitled to amend any Data if it deems such amendment necessary to ensure that the Data is converted into Formatted Data;

    3. it is responsible for ensuring and undertakes to ensure that no Virus is communicated to or from the System and that Synaptic's responsibility is limited to taking such actions in relation to Viruses as is consistent with good industry practice;

    4. without prejudice to any other right or remedy available to Synaptic, Synaptic shall be entitled to deny the Subscriber access to the System at any time if it reasonably believes that Synaptic would otherwise be in breach of the law or the requirements of any regulatory authority;

    5. Synaptic does not warrant the fitness for purpose or suitability of the operation of the System nor that the System or the Documentation will meet the Subscriber's requirements, nor that the System will operate in circumstances which the Subscriber may select for use, nor that the operation of the System will be uninterrupted or error free, nor that all errors will be corrected.

  4. OBLIGATIONS OF THE COMPANY

    5. Synaptic undertakes and agrees with the Subscriber that, subject to the Subscriber complying with its obligations under this Agreement, it shall:

    1. use reasonable care and skill in processing Data and Formatted Data;

    2. keep records showing all modifications to the Formatted Data made by way of the System and make them available to the Subscriber for inspection upon reasonable notice and during Normal Working Hours.

  5. OBLIGATIONS OF THE SUBSCRIBER

    6. The Subscriber undertakes and agrees with Synaptic that it shall:

    1. procure that its computer software and hardware is at all times compatible with the System and that Data is entered into the System by the Subscriber in the format notified to the Subscriber by Synaptic from time to time;

    2. submit Data to Synaptic from time to time in accordance with (including, without limitation, as to format) the Documentation and the prompts given by the System;

    3. ensure that Synaptic has at all times the correct and fully functional electronic mail address of the Subscriber's nominated representative for the purposes of this Agreement;

    4. satisfy itself as soon as practicable after:

      1. receiving notification of a modification of the Formatted Data from Synaptic; and

      2. upon varying the terms of any product made available by the Subscriber via the System,

    that the Formatted Data on the Site would not mislead (whether by omission or otherwise) any Customer as to the relevant product or any terms relating to it.

  6. LIMITATION OF LIABILITY

    1. Neither the Subscriber nor Synaptic shall be liable for any consequential or indirect loss or damage, including, without limitation, damage to or loss of data or other equipment or property, economic loss or damage, loss of profits, reputation or goodwill arising out of this Agreement (whether for breach of contract, negligence or otherwise).

    2. Nothing in this Agreement shall be taken to exclude or limit either party's liability for death or personal injury which cannot be excluded or restricted under the terms of the Unfair Contract Terms Act 1977.

    3. Subject to clause 6.2, the liability of Synaptic under this Agreement shall be limited to an amount equal to £5,000.

  7. INTELLECTUAL PROPERTY RIGHTS

    1. The Subscriber acknowledges that title to all Intellectual Property in the Software (including, without limitation, its source code), the Formatted Data, the System and the Documentation is and remains at all times exclusively that of Synaptic and the Subscriber hereby assigns all such Intellectual Property in the same to Synaptic with full title guarantee to the extent that it is now or at any time in the future vested in the Subscriber.

    2. Synaptic will indemnify and hold harmless the Subscriber against any cost, loss, damage, injury or expense suffered or incurred by the Subscriber as a direct result of the negligent amendment of Formatted Data by Synaptic provided that the Subscriber mitigates its loss.

    3. Synaptic acknowledges that title to all Intellectual Property in the Data is and remains at all times exclusively that of the Subscriber and Synaptic hereby assigns all such Intellectual Property in the same to the Subscriber with full title guarantee to the extent that it is now or at any time in the future vested in Synaptic.

    4. Subject to clause 7.2, the Subscriber shall indemnify Synaptic, and at all times keep Synaptic indemnified against any cost, loss, damage, injury or expense suffered or incurred by Synaptic as a result of any claim that any Data or Formatted Data are inaccurate or misleading in any respect (whether by omission or otherwise); that any Data or Formatted Data or use of the Data or Formatted Data by any person infringes the patent, copyright or registered design or trademark rights of a third party; that Data or Formatted Data has been provided to any person in breach of the law or any regulation of a relevant authority; or that any product selected using the Formatted Data is non-compliant or inappropriate.

    5. The Subscriber shall ensure that it complies with all reasonable instructions of Synaptic in connection with the inclusion, use and representation of any copyright notices or trade mark notices or other proprietary notices connected with the System and the Documentation and in particular, will not obscure, tamper with or remove any such notices without Synaptic's prior written consent (such consent not to be unreasonably withheld or delayed).

    6. The Subscriber grants to Synaptic a non-exclusive licence to use, free of charge, the Data and the Subscriber's name and trade marks in the provision of services and software to Customers. The Subscriber shall provide such electronic reproductions of its logos and other trade marks as Synaptic shall reasonably require to exercise its rights under the licence granted pursuant to this clause.

  8. CONFIDENTIALITY

    1. Each party undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entering into of this Agreement or which it has obtained during the course of this Agreement except any information which is:

      1. trivial or obvious;

      2. already in its possession other than as a result of a breach of this clause 8; or

      3. in the public domain other than as a result of a breach of this clause 8.

    2. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause 8 by its employees, agents and subcontractors.

    3. the provisions of this clause shall survive termination.

  9. DURATION AND TERMINATION

    1. This Agreement shall commence on the date that the Subscriber indicates its acceptance of its terms and, subject to the provisions of this clause 9 and clause 10, shall continue until the first anniversary of that date and thereafter, unless or until terminated by either party giving to the other not less than six calendar months' notice to expire on or after the said anniversary.

    2. This Agreement shall terminate automatically on the next date on which Subscriber accepts the same terms as those of this Agreement (as updated by Synaptic from time to time) in the course of logging on to the System.

    3. Without prejudice to the foregoing, either party may terminate this Agreement immediately by notice to the other party if any of the following events occurs:

      1. the other party has committed a breach of this Agreement which, in the case of a breach capable of remedy, has not been remedied within 28 days of the receipt by the other of a notice specifying the breach and requiring its remedy;

      2. an order is made or a resolution is passed for the winding-up of the other party, except in the case of a voluntary winding-up for the purposes of a scheme of reconstruction or amalgamation, the terms of which shall previously have been approved in writing by the other party;

      3. an administrative order is made or a petition for such an order is presented in respect of the other party;

      4. a receiver (which expression shall include an administrative receiver) is appointed in respect of the other party or any of the other party's assets;

      5. the other party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

      6. any voluntary arrangement is proposed under section 1 of the Insolvency Act 1986 in respect of the other party;

      7. the other party ceases, or threatens to cease, to carry on business; and

      8. any event analogous to those described in clauses 9.3.2 to 9.3.7 occurs in relation to the other party in any jurisdiction in which that other party is incorporated or resident or carries on business.

    4. Following termination of this Agreement for any reason whatever, Synaptic shall be entitled (at its option) to deny the Subscriber access to the System.

    5. On termination of this Agreement for any reason and, subject as otherwise provided in this Agreement to any rights or obligations which have accrued before termination, neither party shall have any further obligation to the other under this Agreement.

  10. FORCE MAJEURE

    1. Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party's reasonable control (including, without limitation, any failure of any third party to provide services in relation to the Internet, strike, lockout or other industrial action, act of God, war or threat of war, accidental or malicious damage, or prohibition or restriction by governments or other legal authority).

    2. If any circumstance relied on by either party for the purposes of this clause 10 continues for more than three months, the other party shall be entitled to terminate this Agreement by one month's notice.

  11. ENTIRE AGREEMENT

    1. This Agreement constitutes the entire agreement between the parties in connection with its subject matter.

    2. Neither party has relied on any representation or promise except as expressly set out in this Agreement.

  12. WAIVER OF RIGHTS BASED ON MISREPRESENTATION

    1. Each party unconditionally waives any rights it may have to claim damages against the other on the basis of any statement made by the other (whether made carelessly or not) not set out or referred to in this Agreement (or for breach of any warranty given by the other not so set out or referred to) unless such statement or warranty was made or given fraudulently.

    2. Each party unconditionally waives any rights it may have to seek to rescind this Agreement on the basis of any statement made by the other (whether made carelessly or not) unless such statement was made fraudulently.

  13. ASSIGNMENT AND SUBCONTRACTING

    14. The Subscriber shall not without the prior written consent of Synaptic assign, transfer, charge or deal in any other similar manner with this Agreement or its rights or any part of them under this Agreement, or purport to do any of the same, nor subcontract any or all of its obligations under this Agreement.

  14. NO PARTNERSHIP OR AGENCY

    15. Nothing in this Agreement shall create, or be deemed to create, a partnership or agency between the parties and neither party shall have any express or implied authority to bind the other in any way other than as contemplated in this Agreement.

  15. COSTS AND EXPENSES

    16. Except as otherwise stated in this Agreement, each party shall pay its own costs and expenses in relation to the negotiation, preparation, execution and implementation of this Agreement.

  16. INVALIDITY

    17. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the other provisions.

  17. AMENDMENT AND WAIVER

    1. No variation of this Agreement shall be effective unless it is made in writing, refers specifically to this Agreement and is signed by the parties.

    2. No waiver of any term, provision or condition of this Agreement shall be effective except to the extent made in writing and signed by the waiving party.

    3. No omission or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under this Agreement.

  18. SURVIVORSHIP

    19. This Agreement shall, as to any of its provisions remaining to be performed in whole or in part or capable of having effect following termination, remain in full force and effect despite termination.

  19. NOTICES

    1. Any notice or other communication to be given under this Agreement must be in writing and may be delivered or sent by electronic mail, prepaid first class letter post or facsimile transmission to the party to be served at that party's last-known address.

    2. Any notice or document shall be deemed served: if sent by electronic mail, three hours after transmission (unless a notice of non-delivery is received from the relevant internet services provider); if delivered, at the time of delivery; if posted, 48 hours after posting; and if sent by facsimile transmission, at the time of transmission provided that in each case service shall only take effect during Normal Working Hours.

  20. LAW AND JURISDICTION

    21. This Agreement shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.

  21. SYNAPTIC SOFTWARE LIMITED’S (SYNAPTIC) USE OF ‘COOKIES’

    22. A ‘cookie’ is a small text file that is placed on your computer’s hard drive when you log on to some websites for the first time. It is generated by the computer operating the web site. The information the cookie contains varies and is used by the website when you visit it, for example to remember your user name to save you having to type it in each time; they can therefore be very useful. A cookie can be thought of as providing a mechanism for the website to remember things, enabling it to recognise you and respond appropriately. Synaptic uses cookies to help you personalise your online experience and they are uniquely assigned to you. Enabling cookies simplifies the process of recording useful information that Synaptic can use to personalise your experience. Synaptic uses three types of cookies; session cookies, persistent cookies & 3rd party cookies. Below is a summary of the cookie type and its usage on Synaptic Sites.

    Session cookies

    Are the most common and are created during your browsing session and are automatically deleted when you leave the website.

    Synaptic use Session Cookies to store: User specific session data using the ASP.NET and PHP session state to store and retrieve values set by the user and the language the user has chosen for the site.

    Persistent cookies

    As the name suggests, persistent cookies stay on your computer’s hard drive after your session concludes, so when you return to the website, it remembers you and can load your preferences.

    Synaptic use Persistent Cookies to store:

    Vendor ID, User Name, Styling preferences, e-mail address, telephone number and company ID

    Third party cookies

    Are cookies that are created by domains that are not the primary address shown in your browser address bar.

    Synaptic allow the following third party cookies:

    Our site uses google analytics for anonymously tracking statistics about you interaction with our website.

    If you wish to opt-out of this, please visit https://tools.google.com/dlpage/gaoptout

    Disabling Cookies

    You have the ability to accept or decline cookies. Most web browsers automatically accept cookies, but you can modify your browser settings to disable or prompt to use cookies if you prefer. If you choose to disable cookies, please note that you may not be able to fully experience the interactive features of the Synaptic websites. If you’d like any further information, email support@synaptic.co.uk.