Defaqto Service Rating Agreement

We are Defaqto Limited, Company No 02870220 registered in England with our registered office at Financial Research Centre, Pegasus Way, Haddenham, Aylesbury, Buckinghamshire, HP17 8LJ, United Kingdom (and we refer to ourselves as "Defaqto", “we” or “us” or “our” in this document). We own and operate the Service Ratings Toolkit on our own behalf including as a portal to obtaining your Service Rating logos.

You are reading a legal document which is the agreement between you and us. “You”, “you”, and “your” all mean the Licensee of whom any human individual who is reading these terms and conditions or accessing the Service Ratings Toolkit is an authorised representative.

The web link (“Uniform Resource Locator” or “url”) through which you have accessed this Toolkit has been provided by us and is unique to you. That url was provided within your Service Rating Confirmation email. Your acceptance of these terms and conditions will be logged and notified to us and you will be bound by these terms from the date of such acceptance. You agree that where there is any dispute regarding whether you have accepted the terms and conditions or not, the use of the terms and conditions in tandem with the url provided is accepted as the definition of acceptance of these terms and conditions.

Please read this agreement carefully. By accessing or using this Service Ratings Toolkit or by using any facilities or services made available through it, you are agreeing to the terms and conditions that appear below and the Guide (all of which are called the “Agreement”). This Agreement is made between you and us.

Whereas:

Defaqto licenses the Licensee to refer to and use a series of logos and text to represent a quality rating given by Defaqto to various financial products, funds, policies or contracts

Definitions

In order to be reading these terms and conditions, you will have received an email (the “Service Rating Confirmation”) containing the details of your “Named Service(s)”, “Commencement Date”, ”Defaqto Rating”, “End Date”, “Licence Fee” and the “Licensee”. Those definitions contained in that email correspondence are hereby incorporated within these terms and conditions.

1        The Licence

 1.1       Under this Agreement Defaqto grants the Licensee a worldwide non-exclusive licence to use the Defaqto Rating, Defaqto Rating Logo, and the Defaqto Rating Text in electronic, printed or other forms of advertising and promotion material as laid out in this Agreement.

1.2       The Agreement is in respect of the specific service or range of services listed as the Named Service – it does not extend to any other products, funds, policies, contracts or services offered by the Licensee or any of its subsidiaries and partners.

1.3       The Agreement applies to the Named Service as constituted and constructed at the Commencement Date.

1.4       Defaqto will review the Defaqto Rating achieved by the Named Service prior to the Initial Refresh Date and each anniversary thereof (the “Refresh Dates”). Defaqto will provide an updated Defaqto Rating Logo reflecting any changes to the Defaqto Rating achieved at the Initial Refresh date and each Refresh Date thereafter unless this Agreement is terminated by either party in accordance with the termination provisions of this Agreement.

1.5       Defaqto reserves the right to review the Defaqto Rating achieved by the Named Service during the Term. Where such review results in the Defaqto Rating achieved by the Named Service changing, Licensee has the option of a) replacing the existing Defaqto Rating Logo and Defaqto Rating Text with new Defaqto Rating Logo and Defaqto Rating Text reflecting the amended Defaqto Rating, in which case Defaqto will provide a new Defaqto Rating Logo; or b) Defaqto will invoke clause 3.2.1.

1.6       Any alteration to the Named Service shall be assumed to have been made as at the date that the alternation occurred.

2        Licensee Obligations & Restricted Acts

2.1       The Licensee shall when referring to the Defaqto Rating make clear that they are referring to the Defaqto Ratings and should normally use the Defaqto Rating Logo and/or the Defaqto Rating Text.

2.2       The Licensee shall not make any adjustment to the Defaqto Rating Logo. Where the Licensee would like to use some narrative or text with respect to the Defaqto Rating then such text must be approved by submission to and sign off from Defaqto at signoff@defaqto.com.

2.3       This Agreement shall not apply to any other service, range of services, product or fund of the Licensee. Use of any Defaqto Ratings, the Defaqto Rating Text or Defaqto Rating Logos or the use of any written or verbal statement to infer that it applies to other services, range of services, product or fund of the Licensee is expressly forbidden and will result in immediate termination of this Agreement.

2.4       The Licensee must immediately inform Defaqto of any change to the Named Service.

2.5       Where the Agreement is terminated in accordance with clauses 2.3, 3.2 or 3.3, the Licensee will at its own cost remove from all literature and promotional material any references to Defaqto Ratings, the Defaqto Rating Logo and Defaqto Rating Text in accordance with clause 2.8.

2.6       Where the Defaqto Rating changes either at the Initial Refresh Date, a Refresh Date or at any time as per clause 1.5, and the Agreement is not terminated, Licensee will at its own cost replace in all literature and promotional material any references to the legacy Defaqto Rating, Defaqto Rating Logo and Defaqto Rating Text with new ones appropriate to the new Defaqto Rating.

2.7       The Licensee will at its own cost remove from all literature and promotional material any references where such references are in breach of any term of this licence.

2.8       In considering the removal of the Defaqto Ratings, the Defaqto Rating Logo and Defaqto Rating Text upon termination of this Agreement, the Licensee will remove all items from electronic media as soon as reasonably practicable (but within no more than 7 days) and will make best endeavours to ensure that undistributed materials are withdrawn within 30 days, and that no further material is printed after the termination of the Agreement.

2.9       In considering the replacement of the Defaqto Ratings, the Defaqto Rating Logo and Defaqto Rating Text as per clause 2.6, the Licensee will replace all items in electronic media as soon as reasonably practicable (but within no more than 7 days) and will make best endeavours to ensure that undistributed materials are withdrawn within 30 days, and that no further material is printed including the replaced Defaqto Rating, Defaqto Rating Logo or Defaqto Rating Text. 

3        Term

3.1       The licence granted by this Agreement shall run perpetually unless terminated in accordance with clauses 2.3, 3.2 or 3.3 “(Term”).

3.2       Defaqto may terminate this Agreement with immediate effect because:

3.2.1    The Named Service has been altered and having been reviewed by Defaqto under the terms of clause 1.5 the revised Named Service is considered not to have achieved the same Defaqto Rating as the original Named Service, and Licensee has elected not to adopt the replacement rating, or

3.2.2    the Licensee has failed to notify Defaqto of any change to the Named Service under the terms of clause 2.4, or

3.2.3    the Licensee has abused the marks and permissions covered by this Agreement such that they are misrepresenting Defaqto or the Defaqto Ratings and following a request from Defaqto to refrain from such action they have not refrained within a reasonable period of time.

3.3       Licensee may terminate this Agreement at any time, such termination to take effect at the next Initial Refresh Date or Refresh Date, whichever sooner.

3.4       Upon termination of the Agreement the Licensee shall immediately cease to use the Defaqto Rating Logo and the Defaqto Rating Text on new literature or reprints of existing literature and cease to make any reference to the Defaqto Ratings in relation to the Named Service

3.5       Either party may terminate this Agreement immediately if the other party;

3.5.1    is in breach of any of its obligations under this Agreement and, in the case of a breach capable of remedy, fails to remedy the same within 21 days after receipt of a notice giving full particulars of the breach and requiring it to be remedied by the non-breaching party.  A breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance;

3.5.2     makes any voluntary arrangement with its creditors or becomes subject to an administration order;

3.5.3     has a receiver or administrative receiver appointed over any of its property;

3.5.4     goes into liquidation; or

3.5.5     ceases, or threatens to cease, to carry on business.

4        Intellectual Property Rights

4.1       All patent, copyright, database rights, design and trade mark rights, applications for the same and other intellectual property rights including know-how (whether registerable or otherwise) included or used in the Defaqto Rating, the Defaqto Rating Logo, Defaqto Rating Text, Defaqto’s data and marks are and shall remain Defaqto’s property. 

4.2       If any claim is made against the Licensee that the Defaqto Ratings, the Defaqto Rating Logo or the Defaqto Rating Text infringes the copyright, database right, or trademark rights of any other person, then Defaqto shall indemnify the Licensee against all damages, costs and expenses awarded against the Licensee or incurred by the Licensee in connection with the claim, provided:

4.2.1     the Licensee gives Defaqto notice of any such claim as soon as the Licensee becomes aware of it;

4.2.2     Defaqto is given control of any proceedings or negotiations in connection with the claim; and

4.2.3     except pursuant to a final award, the Licensee does not pay or accept any such claim or compromise any such proceedings without Defaqto’s written consent.

4.3       Defaqto shall not be liable to indemnify the Licensee under this section if the actual or alleged infringement is based upon any alteration, modification or change to the Defaqto Rating Logo or the Defaqto Rating Text that was not approved in writing by Defaqto.

4.4       In the event of an infringement Defaqto may at its option and expense either:

4.4.1    procure for the Licensee the right to continue to use the Defaqto Rating Logo and the Defaqto Rating Text; or

4.4.2    modify or replace the Defaqto Rating Logo and the Defaqto Rating Text to render it non-infringing but equivalent in all material respects to the Defaqto Rating Logo and the Defaqto Rating Text prior to such modification and licence such modified Defaqto Rating Logos and Defaqto Rating Text to the Licensee at no additional expense to the Licensee under the same terms as this Agreement; or

4.4.3  terminate this Agreement under the terms of clauses 3.2.4 and 3.4.1.

4.5     The Licensee shall not, nor allow others to, alter or amend any of Defaqto’s proprietary marks provided under this Licence Agreement.

4.6   The Licensee shall notify Defaqto immediately if they become aware of any unauthorised use of the marks identified in this Agreement.

4.7     This Agreement does not grant any rights to the Licensee to use any of Defaqto’s copyright design and trademarks except for those explicitly provided for in this Agreement. Separate written permission must be sought from Defaqto for any use of any other such material.

1.8     The Licensee shall permit Defaqto sight of any material containing the Defaqto Ratings, the Defaqto Rating Logo or the Defaqto Rating Text at Defaqto’s request to check the use of the logos at all reasonable times and at reasonable intervals.

5        Subscription Fee

5.1     The Licensee will pay the Licence Fee in the amounts and at the times specified in the invoices issued in respect of this Agreement. Defaqto will invoice the Licensee annually in advance of the Initial Refresh Date and each Refresh Date thereafter until terminated

5.2     All sums payable under this Agreement are exclusive of VAT.

5.3    Defaqto may increase the Licence Fee at any time on providing 2 months’ notice, such increase to take effect at the sooner of the Initial Refresh Date if not yet passed or the next Refresh Date.

5.4     Without prejudice to Defaqto’s right to terminate otherwise under this Agreement if any fee or any other sum due from the Licensee remains unpaid for 14 days Defaqto may suspend this Agreement until payment is made without further liability or refund of any fees.

5.5     Defaqto reserves the right to charge interest at the rate of 3% above National Westminster Bank Plc's base rate for the time being in force on overdue amounts.

5.6     The Licensee agrees that all amounts due under this Agreement shall be paid in full without any set-off, deduction or withholding other than as required by law and the Licensee shall not be entitled to assert any credit, set-off or counterclaim against Defaqto in order to justify withholding payment of any such amount in whole or in part.

6        Confidentiality

6.1     Both parties shall treat as confidential and keep secret all information regarding the business of the other which either party becomes aware of during the course of this agreement and shall only disclose such information to its employees, agents and sub-contractors to the extent necessary.

6.2     Both parties shall ensure that the persons and bodies referred to in clause 6.1 above are made aware of the confidential nature of any information prior to its disclosure.

6.3     The obligations of both parties in respect of confidential information shall survive the termination of this Agreement.

6.4      This section does not extend to information which is already public knowledge or becomes so at a future date except as a result of breach of this clause or disclosure by either party to any body which regulates the disclosing party or which is disclosed pursuant to an order of court.

7        Liability

7.1       Nothing in this agreement is deemed to exclude or restrict Defaqto’s liability to the Licensee for (i) death or personal injury resulting from Defaqto’s negligence or the negligence of Defaqto’s employees acting in the course of their employment; or (ii) any fraudulent pre-contractual misrepresentation made by Defaqto on which the Licensee can be shown to have relied; or (iii) any other liability which by law cannot be excluded.

7.2       Notwithstanding clause 7.1 above, in no event shall Defaqto have any liability for any consequential or indirect loss suffered by The Licensee, nor for any loss of profit, loss of goodwill or failure to achieve anticipated savings or benefits whether direct, consequential or indirect

7.3       Subject to clauses 7.1 and 7.2, Defaqto’s total liability for any one claim or for the total of all claims arising from any one act or default, whether in contract, tort (including without limitation negligence), statute or otherwise shall not exceed the greater of £15,000 or 100% of the Licence Fee. 

8        General

8.1       This Agreement contains the entire Agreement between the parties and supersedes all previous Agreements and understandings concerning the licence of Defaqto’s Rating as these relate to the Named Service.

8.2       No amendment to this Agreement will be effective unless documented in writing and signed by each party.

8.3       Neither party may assign or otherwise transfer this Agreement or any of its rights and obligations.

8.4       The Licensee may sub-licence the use of the benefits and rights granted by this Licence to any member of its group of companies provided that the sub-licence is on the same terms as this Agreement, for the Named Product and the Licensee gives notice to Defaqto of its intent to grant each sub-licence and following grant provides a copy of each sub-licence to Defaqto. In this Agreement, “group” means the Licensee and any other company which is a subsidiary of, or a holding company of, or another subsidiary of a holding company of, the Licensee, as the terms “subsidiary” and “holding company” are defined in Section 1162 of the Companies Act 2006 (amended),  

8.5       Waiver by the party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision.

8.6       If any provision in this Agreement is held by any court or other competent authority to be void or unenforceable, then such provision shall be deemed to be severed, but the validity, legality and enforceability of the remaining provisions shall not be affected.

9        Notices

9.1       Notices under this Agreement shall be in writing and may be delivered by first class post or by hand and addressed to the party concerned at its registered office or principal place of business;

9.2       Notices delivered by hand shall be deemed to have been served at the time of delivery and notices sent by post shall be deemed to have been received 48 hours after posting whether or not the notice is actually delivered or returned to sender.  In proving service by post it shall only be necessary to prove that the communication was contained in an envelope which was duly addressed and posted in accordance with this Clause.

10     Third party rights

10.1       Except for any party to whom the Licensee has sub-licensed the benefits and rights granted under this agreement in accordance with clause 8.4, a person who is not a party to this Agreement has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

11.    Applicable Law

11.1  English law applies to this Agreement and any dispute arising in connection with it is subject to the exclusive jurisdiction of the English courts.

By accepting these terms and conditions, you confirm that you have the authority of the Licensee so to do and agree that the Licensee is hereby bound by them.