EIGHTH WONDER LIMITED incorporated and registered in England and Wales with company number 07794248 whose registered office is Hillside House, 2 Wyaston Road, Ashbourne, Derbyshire DE6 1DD ( Supplier ).
The organisation or individual acquiring the licence or group of licences ( Customer ).
The Supplier is the entire legal and beneficial owner and licensor of the Software product listed in Schedule 1 and is willing to grant a licence to the Customer to use these products in accordance with those terms.
1.1 The definitions and rules of interpretation in this clause apply in this licence.
(a) Fee: the licence fee payable by the Customer to the Supplier under clause 3 .
(b) Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade 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 preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.
(c) Software: the Finanscapes computer programs listed in Schedule 1 made available by the Supplier during and by virtue of the subsistence of this licence.
(d) The Term: the Term set out at clause 2.1 and further defined (as to commencement of Term) at clause 2.2 .
(e) User: a legal person to whom one of a group of licences purchased by the Customer is made available by the Customer strictly in accordance with the terms of this Licence Agreement save that for the purposes of clause
2.5(d) (only) in this Licencee Agreement the term “User” includes both Customer and (where applicable) User.
Invite Code : the mechanism for allocating a licence purchased by the Customer to another individual or organisation (described further in clause
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 Unless the context otherwise requires:
(a) words in the singular shall include the plural and in the plural shall include the singular;
(b) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time
(c) a reference to one gender shall include a reference to the other genders; and
(d) 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.
1.4 In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
2.1 In consideration of the Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence until further notice (the Term), commencing on and including the date of first accessing the Software.
2.2 In the case of purchases by the Customer of group or groups of licences
(a) Each such licence is notionally allocated at the point an Invite Code is generated
(b) The Term for each such licence commences at the point the Invite Code is entered by the User into the Software
(c) An Invite Code can be revoked and reallocated by the Supplier at any point before the Invite Code is entered into the Software
(d) The licence cannot be revoked or reallocated once the Invite Code has been entered
(e) The terms of this Licence Agreement shall apply to each such licence for which an Invite Code has been entered into the Software.
2.3 In relation to scope of use:
(a) for the purposes of clause 2 use of the Software shall be restricted to use of the Software for the purpose of processing the Customer's data for the normal business purposes of the Customer
(b) the Customer may not use the Software other than as specified in this clause 2 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
(c) except as expressly stated in this clause 2 the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer .
2.4 The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 2.3(c) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
2.5 The Customer shall not:
(a) sub-licence, assign or novate the benefit or burden of this licence in whole or in part without the prior written consent of the Supplier such consent not to be unreasonably withheld or delays but shall in those circumstances:-
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this agreement,
(d) save in the case of purchase by the Customer from the Supplier of a group or groups of licences and for the express and stated prupose of making such licences available to registered members of the Customer’s organisation. In such case(s) the consent of the Supplier is deemed to have been given to enable such sub-licensing.
2.6 The Supplier may at any time sub-licence, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
2.7 Each party confirms it is acting on its own behalf and not for the benefit of any other person save where:
(a) the provisions of 2.5(d) apply;
(b) in all cases where 2.7(a) applies then the Customer is responsible in all respects for compliance by such User with the provisions of this Licence Agreement and the Customer shall make available to such User a copy of this Licence Agreement (but not with the intent nor legal effect that such User shall enter into direct contractual relationship with the Supplier).
2.8 Notwithstanding clause 4 a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 2.8 shall be made until notice of the identity of the proposed assignee has been given to the other party.
2.9 The Customer shall:
(a) notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
(b) (without prejudice and in addition to the right of the supplier to terminate in accordance with these terms) pay for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licenced any such unauthorised use on the date when such use commenced from such date to the date of payment.
3.1 The Customer shall pay to the Supplier licence fees as detailed on https://www.finanscapes.com/Pricing.html . At the time of writing the software is offered without charge to Users, though this may vary from time to time.
3.2 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
3.3 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier's remedies under clause 9 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
4. Confidentiality and publicity
4.1 Each party shall, during the term of this licence and thereafter, keep confidential, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) all and any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
4.2 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
5. Supplier's warranties
5.1 The Supplier warrants that, subject to the conditions of this licence, the Software will conform in all material respects to the Specification ( Warranty Period ). This applies when accessed using only one of the following internet browsers:
(a) Google Chrome – most recent two versions.
(b) Mozilla Firefox – most recent two versions.
(c) Internet Explorer – most recent version.
5.2 If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier's option, do one of the following provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault:
(a) repair the Software;
(b) replace the Software; or
(c) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
(a) The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
(b) Notwithstanding and without prejudice to the provisions of clause 6 ( Limits of liability ) the Supplier shall not in any circumstances have any liability for any loss or damage which may be suffered by the Customer howsoever arising if the Software is for any reason at all not available for any period of 48 hours or less to the Customer. The reasonable anticipation of the Supplier (not amounting to a Warranty) is that the software will be available to the Customer between 8:00 am and 10:00 pm GMT each day.
(c) In any event the Supplier will use all reasonable endeavours to give seven days’ notice to the Customer of any anticipated downtime/unavailability of the Software if likely to fall within the 8:00 am – 10:00 pm GMT daily window
(a) The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
(b) The Customer also accepts responsibility for checking, analysis and verification of any figures/calculations produced by the Customer using the Software and the Supplier gives no Warranty nor accepts any responsibility in respect of the accuracy of the same.
(a) All parties shall take all reasonable precautions to ensure access to the Software is limited to individuals in their employ and/or under their control
(b) Notwithstanding clause 5.5(a) or any other provision of this Licence Agreement, given the nature of software and the internet the Supplier can provide no warranty or guarantees as to the security of data input into the Software.
5.6 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
6. Limits of liability
6.1 Except as expressly stated in clause 6.2
(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of, or breach of confidentiality relating to, data
(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
6.2 The exclusions in clause 5 and clause 6.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
6.3 All dates supplied by the Supplier for the delivery of the Software or the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
6.4 All references to "the Supplier" in this clause 6 shall, for the purposes of this clause and only, be treated as including all employees, subcontractors and suppliers of the Supplier, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, notwithstanding clause 16 .
7.1 For the purposes of this section alone, the term User shall refer to the individual or organisation using the Software to model their finances, business or plan – in some cases distinct from the Customer responsible for purchasing the licence (as described in clause 2.2 ).
7.2 Several categories of Data are collected by the Software:
Data input directly by the User during their operation of the Software.
Metadata such as the date the User last accessed the software or the time an item of data was added to the Software. This is used to provide functionality such as restoring recently deleted items and sorting by date/ time changed.
The User's name, email address and a unique identifier as provided by the User's login provider (Facebook, Google, LinkedIn, Twitter for example). This information is used to securely identify the User when they access the Software and to communicate directly with them. It may be used to facilitate sharing of progress or published forecasts as requested by the User.
7.3 Ownership of any data or information input by the User during their operation of the Software shall belong to the User.
7.4 The Customer will retain access to the data for the duration of the licence but not beyond (subject to clause 7.5 ). The Customer may gain access to previous and newly created data through purchase of a new licence.
7.5 Data will be retained for a minimum of 3 years.
7.6 When the User publishes a plan online using the Software, such plan will become publicly available to those with its access URL. Such public access can be revoked within a period of 1 hour from publishing, from which point it becomes “permanently available” (for the lifetime of the Software) and access cannot be revoked.
7.7 Data Subject Access Requests should be made in writing to the Supplier’s Data Controller, and may be made only by the owner of the data as detailed in 7.3 .
The Customer can request deletion of their Data including un-published plans at any time by contacting the Supplier’s Data Controller
7.9 The Supplier retains the right to aggregate and process non personally-identifiable information.
8. Intellectual property rights
8.1 The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
8.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party ( Claim ) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt clause 8.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
8.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 8.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier 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 Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
8.4 If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
8.5 If the Supplier modifies or replaces the Software under clause 8.4 , the modified or replacement Software must comply with the warranties contained in clause 5.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.
8.6 This clause 8 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 6 .
9. Duration and termination
9.1 Without affecting any other right or remedy available to it, either party may terminate this agreement (and/or any licence granted by or under these terms) with immediate effect within the Term by giving written notice to the other party (which expression includes any person or body as defined as User herein) if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
9.2 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
9.3 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
9.4 On termination for any reason (including expiry of the Term):
(a) all rights granted to the Customer (or to Users previously authorised by the Customer in accordance with the terms of this Licence Agreement) under this licence shall cease;
(b) the Customer and/or User as the case may be shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence
10.1 No failure or delay by a party to exercise any right or remedy provided under this 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.
11.1 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
12. Entire agreement
12.1 This licence, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
12.2 Each party acknowledges that, in entering into this licence it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) ( Representation ) other than as expressly set out in this licence.
12.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this licence.
12.4 Nothing in this clause shall limit or exclude any liability for fraud.
13.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
14.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
agreement may be executed in any number of counterparts, each of which when
executed and delivered shall constitute a duplicate original, but all the
counterparts shall together constitute the one
16. Third-party rights
person who is not a party to this agreement shall not have any rights under
the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
17. No partnership or agency
17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
18. Force majeure
Supplier not 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.
19.1 Any notice given to a party under or in connection with this contract shall be in writing and shall be:
(a) 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
(b) sent by fax to its main fax number; or
(c) issued to the email address associated with the Software login that accepted/issued these licence conditions
19.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) 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.
(c) if sent by fax (or by the Supplier to the Customer’s primary email address at 19.1(c) above), at 9.00 am on the next Business Day after transmission.
19.3 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. For the purposes of this clause, "writing" shall not include e-mail unless otherwise expressly stated.
20. Governing law and jurisdiction
20.1 This 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 the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
Licence Agreement is deemed to have been entered into and to have become
binding on the date payment is received by the Supplier from the Customer or
the start of the Term (as defined in clause
2), whichever is sooner.
Schedule 1 Software
The Finanscapes software enables the creation and visualising of financial forecasts for a small business.
The software allows a plan to be made available online ( Published ) in a consistent format for review by third parties – for example to support the due diligence associated with the provision of funding.
It carries additional functionality allowing an Enterprise Support Agency or Organisation to provide its clients access to Finanscapes, track their progress and support them remotely.
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