1.1. UC Advisor Ltd is a company incorporated in England and Wales with registered number 11771013. Our registered office is at Parkhill Studio, Walton Road, Wetherby, England, LS22 5DZ.
1.2. Where we say ‘we’, ‘us’ or ‘our’ in these Terms and Conditions, we mean UC Advisor Ltd.
1.3. Where we say ‘you’ or ‘your’ in these Terms and Conditions, we mean either the person using the Platform or, in respect of our Funding Services, the client identified in the Funding Application and anyone authorised to give instructions on that client’s behalf.
1.4. Where we use capitalised words or terms in these Conditions, these have the meaning given to them in clause 15 (Interpretation) unless the context requires otherwise.
2. USE OF THE PLATFORM
2.1. ucadvisor.com is a website (referred to in these Conditions as the ‘Platform’) which, amongst other things, allows you to compare product information and prices for unified communications and/or customer experience software solutions from our Network Partners. This will enable you to make an informed decision before proceeding with your chosen Network Partner(s).
2.2. The Platform is a product comparison service only. There is no charge for use of the Platform.
2.3. Please note that the Network Partners’ products and prices may be updated and/or amended on a regular basis and therefore the comparisons generated by our Platform are subject to change.
2.4. We aim to ensure that the material on the Platform is accurate, however we cannot guarantee the Platform is accurate and free from errors or omissions at all times. We reserve the right to add, amend, delete, edit, remove or modify any information, content, material or data displayed on the Platform at any time and without notice.
2.5. It is your responsibility to ensure that any information you enter onto the Platform is complete and accurate. If any information you enter is incomplete or inaccurate then this may impact the results generated by the Platform and we will have no liability in that regard.
2.6. We offer impartial advice to you in respect of the Network Partners, their Products and their suitability for your business. We do not provide financial advice in relation to the Products nor do we provide a recommendation or endorsement of any particular Products or Network Partner.
2.7. Where you propose to enter into a Software Contract with a Network Partner, you should also read their terms and conditions and/or contract to ensure you are happy with them. The Network Partner’s terms and conditions and/or contract will cover any transaction or agreement between you and them, whereas these Conditions relate only to your use of our Platform and our Funding Services.
3. FUNDING SERVICES
3.1. Where you would like us to provide Funding Services for your chosen Products, you must submit to us a Funding Application, in the form provided by us.
3.2. When you submit a Funding Application to us, you agree to be bound by these Conditions for the provision of the Funding Services. These Conditions apply to this Agreement to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.3. We may take up to 30 days to consider your Funding Application and decide if we are willing, in principle, to provide Funding Services to you. We may accept or decline your Funding Application at our absolute discretion. Our decision whether to provide Funding Services to you is final. If your Funding Application is accepted, we will confirm this to you via email.
3.4. We will use all reasonable endeavours to meet any prior agreed performance dates for the Funding Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Funding Services.
3.5. We warrant to you that the Funding Services will be provided using reasonable care and skill.
4. TRANSFORMATION FUND PAYMENT
4.1. If you enter into a Software Contract with one or more of our Network Partners following an introduction made by us, you may be entitled to a one-off Transformation Fund Payment from us.
4.2. If you are entitled to a Transformation Fund Payment, the amount of the Transformation Fund Payment will be confirmed to you in writing in the Funding Application, calculated with reference to the overall value of the Software Contract. The amount of the Transformation Fund Payment will be calculated at our sole discretion and you are agreeing to the amount of the Transformation Fund Payment by signing the Funding Application. If you disagree with the amount of the Transformation Fund Payment, you should not sign the Funding Application.
4.3. If you are entitled to a Transformation Fund Payment, you have the option of receiving this:
4.3.1. subject to clause 4.5, as a cash payment (either one-off or in instalments) via electronic transfer to the bank account nominated by you in the Funding Application;
4.3.2. subject to the consent of the Network Partner, as a credit to your chosen Network Partner, which will be used to satisfy or reduce your payment liabilities to the Network Partner under the Software Contract up to the level of the Transformation Fund Payment;
4.3.3. as a donation to a registered charity of your choice; or
4.3.4. via another method agreed between us and you in writing.
4.4. If you opt for a cash payment of the Transformation Fund Payment, this will be paid by us to you within 60 days of us receiving our commission payment from your chosen Network Partner in respect of your Software Contract. We will keep you informed of the anticipated payment date.
4.5. Any cash payment of the Transformation Fund Payment will be payable in pounds sterling and will be paid in full without any deductions (other than deductions required by law). If you issue an invoice to us for the Transformation Fund Payment, this will be paid inclusive of VAT. If you do not issue an invoice to us for the Transformation Fund Payment, this will be paid exclusive of VAT.
4.6. A Transformation Fund Payment must also be approved by your chosen Network Partner. No Transformation Fund Payment will be payable where you enter into a contract with a Network Partner that has not been introduced to you by us, where we have not been involved in the discussions between you and the Network Partner, or where you Network Partner does not approve such payment.
4.7. If any dispute arises as to the amount of the Transformation Fund Payment payable by us, the dispute will be referred to an independent firm of chartered accountants for settlement and their decision, save in the case of manifest error, shall be final and binding on both parties.
4.8. If you are entitled to a Transformation Fund Payment, there is a period of 12 months from initial Network Partner signature to sign and return the Funding Application document to UCAdvisor. If the Funding Application document has not been signed and returned within this 12 month period the grant funding is provided at UCAdvisor sole discretion.
5. CLAWBACK AND REPAYMENT
5.1. We may require repayment of all or any part of the Transformation Fund Payment if:
5.1.1. the Software Contract is terminated by either you or the Network Partner prior to the end of the agreed contract term; or
5.1.2. the initial value of the Software Contract is reduced by either you or the Network Partner during the initial agreed contract term,
which results in the Network Partner requiring repayment by UCAdvisor of commission paid to us in respect of your Software Contract.
5.2. Subject always to clause 5.1 and without prejudice to our other rights and remedies, we may at our discretion withhold or suspend payment of the Transformation Fund Payment and/or require repayment of all or part of the Transformation Fund Payment if:
5.2.1. you provide any materially misleading or inaccurate information to us or the Network Partner, which results in the Network Partner requiring repayment by UCAdvisor of commission paid to us in respect of your Software Contract;
5.2.2. you commit or have committed any offence under the Bribery Act 2010 or any subordinate legislation made under that act from time to time;
5.2.3. you defraud or attempt to defraud or conspire to defraud us, or commit any fraudulent act in relation to this Agreement;
5.2.4. you cease to operate for any reason, or pass a resolution (or any court of competent jurisdiction makes an order) that you be wound up or dissolved (other than for the purpose of a bona fide and solvent reconstruction or amalgamation); or
5.2.5. you fail to comply with any of the terms in these Conditions and fail to rectify any such failure within 14 days of receiving written notice detailing the failure.
5.3. Should you be subject to financial or other difficulties which are capable of having a material impact on your compliance with the terms of the Software Contract, you will notify us as soon as possible so that, if possible, and without creating any legal obligation, we will have an opportunity to provide assistance in resolving the problem or to take action to protect the Transformation Fund Payment.
6. COMMISSION PAYMENTS
Where you enter into a Software Contract with a Network Partner following an introduction made by us, we may receive a commission payment from the Network Partner. You acknowledge and agree that all such commission payments will be retained by us in their entirety. The commission we may receive from the Network Partner will not affect the price payable by you to the Network Partner for the chosen Products.
7. YOUR OBLIGATIONS
7.1. You will:
7.1.1. inform us as soon as reasonably practicable upon entering into a Software Contract with a Network Partner introduced by us and provide us with a copy of the Software Contract;
7.1.2. co-operate with us in all matters relating to the Funding Services;
7.1.3. provide us with such information and materials as we may reasonably require in order to supply the Funding Services, and ensure that such information is complete and accurate in all material respects; and
7.1.4. in the event that any monies are incorrectly paid to you either as a result of an administrative error or otherwise, promptly repay to us any money incorrectly paid. This includes (without limitation) situations where either an incorrect sum of money has been paid or where monies have been paid in error before all conditions attaching to the Transformation Fund Payment have been complied with.
7.2. If our performance of any of our obligations under this Agreement is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Client Default):
7.2.1. without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Funding Services until you remedy the Client Default, and to rely on the Client Default to relieve us from the performance of any of our obligations in each case to the extent the Client Default prevents or delays our performance of any of our obligations; and
7.2.2. we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause.
8. CHARGES AND PAYMENT
The Funding Services provided to you are free of charge.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. All Intellectual Property Rights in respect of the Platform are owned or licenced by us. We grant you a non-exclusive, non-transferable and non-sublicensable licence to use the Platform for product comparison purposes in respect of your business only.
9.2. All Intellectual Property Rights in or arising out of or in connection with the Funding Services (other than Intellectual Property Rights in any materials provided by you) shall be owned by us.
10. DATA PROTECTION
10.1. We use your personal data primarily to provide Funding Services to you, but also for related purposes such as administration, payments and record keeping and to inform you of our services and events that we think may be of interest to you.
10.2. Our use of your personal data is subject to your instructions, the UK General Data Protection Regulation (UK GDPR) and other relevant UK data protection legislation.
11. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1. References to liability in this clause 11 include every kind of liability arising under or in connection with the Platform, this Agreement and/or our Funding Services including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2. Nothing in these Conditions limits any liability which cannot legally be limited, including but not limited to liability for:
11.2.1. death or personal injury caused by negligence;
11.2.2. fraud or fraudulent misrepresentation; and
11.2.3. any other losses which cannot be excluded or limited by applicable law.
11.3. We may provide you with advice and assistance in your choice of Network Partner, however the decisions as to which Network Partner you contract with, and the Products you chose, are solely yours. You are responsible for carrying out your own due diligence in respect of your chosen Network Partner and Products. Subject to clause 11.2, we do not accept any responsibility or liability for any loss or damage you may suffer:
11.3.1. if any information you enter onto the Platform is not complete and/or accurate, or if you fail to disclose all relevant facts;
11.3.2. in the event that any Products do not meet your requirements or are not suitable for your business;
11.3.3. arising from the Software Contract, the implementation of the Products, the relationship between you and the Network Partner, the use of the Transformation Fund Payment or from withdrawal/clawback of the Transformation Fund Payment; and
11.3.4. for any acts, omissions, errors or defaults of any of our Network Partners or third parties in connection with a Product or a Software Contract.
11.4. Subject to clauses 11.2 and 11.3, our total liability to you for all loss or damage shall not exceed the lower of £1,000 or payment value of the Transformation Fund Payment.
11.5. Subject to clause 11.2, the following types of loss are wholly excluded:
11.5.1. loss of profits.
11.5.2. loss of sales or business.
11.5.3. loss of agreements or contracts.
11.5.4. loss of anticipated savings.
11.5.5. loss of use or corruption of software, data or information.
11.5.6. loss of or damage to goodwill; and
11.5.7. indirect or consequential loss.
11.6. Unless you notify us that you intend to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event will start on the day on which you became, or ought reasonably to have become, aware of the event having occurred and will expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.7. You will indemnify and hold harmless us, our employees, agents, officers or sub-contractors with respect to all claims, demands, actions, costs, expenses, losses, damages and all other liabilities arising from or incurred by reason of your actions and/or omissions in relation to the Software Contract, the non-fulfilment of your obligations of under this Agreement or your obligations to third parties including but not limited to the Network Partners.
11.8. This clause 11 shall survive termination of this Agreement.
12.1. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect at any time prior to the expiry of the cooling off period of the Software Contract between you and a Network Partner.
12.2. Without affecting any other right or remedy available to us, we may terminate this Agreement with immediate effect by giving written notice to you if:
12.2.1. you commit a material breach of any term of this Agreement and (if such a breach is remediable) fail to remedy that breach within 14 days of being notified in writing to do so;
12.2.2. you take any step or action in connection with your entering administration, provisional liquidation or any composition or arrangement with your creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of your assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
12.2.3. you suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of your business.
12.3. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to clawback and repayment under clause 5 and the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
12.4. Any provision of this Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
13. FORCE MAJEURE
Neither party shall be in breach of this Agreement nor liable for delay in performing or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
14.1. Assignment and other dealings. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement. You will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without our prior written consent.
14.2. Notices. Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
14.2.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
14.2.2. sent by email to the main email address.
Any notice or communication shall be deemed to have been received:
14.2.3. if delivered by hand, on signature of a delivery receipt; and
14.2.4. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
14.2.5. if sent email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.3. Severance. If any term of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. The parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
14.4. Waiver. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.5. No partnership or agency. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
14.6. Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in this Agreement.
14.7. Third party rights. Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
14.8. Variation. Except as set out in these Conditions, no variation of this Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
The following definitions and rules of interpretation apply in these Conditions.
Agreement: the agreement between us and you for the supply of Funding Services in accordance with the Funding Application and the Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.8.
Client Default: has the meaning set out in clause 7.2.
Funding Application: the application to be completed by you to request the provision of Funding Services by us in accordance with these Conditions.
Funding Services: the introductory and co-funding services (as applicable) provided by us to you to assist you to identify suitable technology services and Products and to enter into agreements for such technology services and Products with our Network Partners.
Force Majeure Event: has the meaning given to it in clause 13.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Network Partners: the unified communications and/or customer experience platform vendors listed on our Platform from time to time.
Platform: means the site on the world wide web located at www.ucadvisor.com.
Products: means any unified communication and/or customer experience software products provided for sale by a Network Partner and Product will be interpreted accordingly.
Software Contract: a contract for a Product entered into between you and a Network Partner who was introduced to you by us.
Transformation Fund Payment: has the meaning given to it in clause 4.1.
15.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
15.2.2. A reference to a party includes its personal representatives, successors and permitted assigns.
15.2.3. Unless expressly provided otherwise in this Agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
15.2.4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
15.2.5. A reference to writing or written includes email.