PLEASE READ CAREFULLY: THIS TERMS OF SERVICE ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN THE ENTITY ON WHOSE BEHALF YOU ARE ACTING ("ADVISER"), AND VOYANT, INCORPORATED, A DELAWARE CORPORATION ("VOYANT"). THESE TERMS OF SERVICE ONLY APPLY IF YOU ARE A FINANCIAL ADVISER. IF YOU ARE AN INDIVIDUAL USER, THE TERMS OF SERVICE FOR USERS APPLY INSTEAD.
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS.
BY USING VOYANT ADVISER (THE "SERVICE"), ADVISER AGREES TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") AND REPRESENTS AND WARRANTS THAT IT CAN LEGALLY ENTER INTO THIS AGREEMENT AND SATISFY ALL OF THE REQUIREMENTS CONTAINED HEREIN. IF ADVISER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
Voyant provides web-based financial planning products and services, including the Service. Adviser desires to obtain access to the Service, pursuant to the terms and conditions of this Agreement.
Adviser shall designate one (1) contact and one (1) alternate as the responsible party for communication with Voyant during the term of this agreement ("Voyant Administrator"). The Voyant Administrator shall have the authority to bind the Adviser, including without limitation by agreeing to updates to this Agreement and Adviser warrants that its Voyant Administrator has all requisite authority to do so. It is Adviser's obligation to ensure that its Voyant Administrator reads and understands such updates. Adviser shall act hereunder through the Voyant Administrator, except that another duly authorised representative of Adviser may change the Voyant Administrator by giving written notice to Voyant in accordance with the terms hereof.
3.1 The Voyant Administrator may establish accounts for Adviser's employees or independent contractors to use the Service on behalf of Adviser ("Authorised Users"). Authorised Users shall not be entitled to use the Service, and Adviser shall not permit them to do so, if this Agreement has terminated or Adviser's access to the Service has been terminated or suspended.
3.2 Adviser shall ensure that, before it permits each Authorised User to access its account set up by the Voyant Administrator in accordance with the instructions provided by Voyant, such Authorised User acknowledges and agrees to the terms of service for users (the "User Terms"). Voyant may refuse to permit an Authorised User to access the Service unless the Authorised User has agreed to the User Terms and is in compliance with its obligations thereunder.
3.3 Voyant will make its privacy statement available on the Site for Authorised Users to access ("Privacy Statement"). Adviser shall be responsible for any breach of the User Terms or Voyant's Privacy Statement by an Authorised User. Adviser shall immediately notify Voyant if Adviser or an Authorised User becomes aware of any violation of the terms of this Agreement, User Terms or Privacy Statement. Adviser is solely responsible for determining the skill, competence, character and other attributes of its Authorised Users and for ensuring that the access it gives to an Authorised User does not breach any statutes or regulations.
Adviser shall provide Voyant with all information and assistance reasonably required for Voyant to activate and operate the Service and provide it to Adviser pursuant to this Agreement. Adviser grants Voyant all rights or licenses necessary for Voyant to use such information in connection with the provision of the Service. Adviser warrants that it has provided complete and accurate billing and contact information in connection with the establishment of Adviser's account for the Service, and Adviser agrees to notify Voyant of any changes to such information. When establishing an account for an Authorised User, Adviser shall provide complete and accurate registration information for each Authorised User.
5.1 The Privacy Statement sets out all personal data collected and processed by us in connection with the Site and/or Service.
5.2 Adviser acknowledges that Voyant may host the Service using its own infrastructure or may engage third parties to host the Service on its behalf. Voyant may provide updates to the Service at Voyant's discretion at no charge to Adviser, and system maintenance may take place from time to time, whether on a scheduled or emergency basis. During such times, the Service may be unavailable. Subject to Section 20, Voyant shall not be liable for any loss, liability or damage arising as a result of the Services being unavailable due to maintenance being undertaken, whether on a scheduled or emergency basis.
Subject to the terms and conditions of this Agreement including without limitation the restrictions set forth below, Voyant hereby grants Adviser a non-exclusive, non-transferable right to use the Service, solely for Adviser's own internal business purposes (including for the purpose of providing financial advice to individual clients of Adviser). All rights not expressly granted to Adviser are reserved by Voyant and its licensors.
7.1 Notwithstanding anything else in this Agreement, Adviser may not access the Service or authorise anyone to access the Service if Adviser is a direct competitor of Voyant, unless Voyant has provided its prior written consent to this following Adviser's disclosure to Voyant of Adviser's status as a competitor.
7.2 Adviser may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Adviser shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Voyant Content (as defined in Section 12) in any way or use it in a service bureau or any other manner to provide services to a third party; (ii) copy, translate, modify or make derivative works based upon the Service or the Voyant Content, save that the Advisor may make such number of backup copies reasonably necessary to support the Advisor's use of the Services in accordance with this Agreement; (iii) create Internet "links" to the Service or "frame" or "mirror" any Voyant Content on any other server or wireless or Internet-based device; (iv) except to the extent that applicable law permits, notwithstanding any contractual prohibition, reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code of the Service including without limitation in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; or (v) remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Service.
7.3 Adviser further agrees to not use the Service to:
7.4 Adviser understands that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Voyant and/or content providers who provide content to the Service. Adviser may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorised reproduction, publication, further distribution or public exhibition of the Voyant Content (as defined in Section 12) or other materials provided on the Service, in whole or in part, is strictly prohibited.
12.2 Adviser hereby grants to Voyant a perpetual, non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable, worldwide license to use any Adviser Content (in whole or in part) for the purpose of fulfilling its obligations under this Agreement and maintaining and running the Service.
12.3 The Service contains content of Voyant and/or its licensors (" Voyant Content"), (Voyant Content and Adviser Content are collectively referred to as the "Content"). Voyant Content is protected by copyright, trademark, and other laws, and Voyant (and/or its licensors) owns and retains all rights in Voyant Content.
12.4 Voyant does not control all of the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of the Content. Adviser agrees that Adviser must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
12.5 Adviser acknowledges and agrees that the Service is intended for general informational use only, does not amount to investment advice and should not be relied upon in making any investment decision. The Content may relate to previous share prices or financial performance and the past is not necessarily a guide to future performance and should not be relied upon as such. If the Content contains any forward-looking statements, these are only predictions and involve known and unknown risks, uncertainties, and other factors that may cause actual results and performance to be materially different from those predicted. Content is not advice on any particular matter. In this regard, Adviser acknowledges that Adviser may not rely on any Content created by Voyant or submitted to Voyant, including without limitation information in Voyant Community or in any other parts of the Service. Subject to Section 20 below, under no circumstances will Voyant be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
12.6 Without liability of any kind, Voyant may reject, refuse to post, or delete any content submitted by the Adviser or by any other party, including but not limited to any content that in the sole judgment of Voyant violates this Agreement or which may be inappropriate, offensive, illegal or violate the rights, harm, or threaten the safety of any person ("Prohibited Content"). Adviser must not post Prohibited Content. Voyant reserves the right to investigate and take appropriate legal action against anyone who Voyant determines, at Voyant's sole discretion, violates this provision.
12.7 Adviser acknowledges that Voyant does not pre-screen Content, but that Voyant and its designees shall have the right (but not the obligation) in their sole discretion to reject, refuse to post, or delete any Content that is available via the Service. Without limiting the foregoing, Voyant and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. Despite prohibitions contained in this Agreement, content provided by other Users may contain Prohibited Content, and, subject to 20 below, Voyant expressly disclaims any responsibility or liability for this material. Adviser understands that by using the Service, Adviser and the Authorised Users may be exposed to such Content. If Adviser or any Authorised User becomes aware of misuse of the Service by any person or any Prohibited Content, Adviser shall contact Voyant at +44 (20) 8090 3601 or by email to firstname.lastname@example.org , describe such abuse and, if the contact is by email, reference "Service Abuse" in the subject line.
12.8 Adviser acknowledges, consents and agrees that Voyant may access, preserve and disclose Adviser Content and/or the account information of Adviser and/or Authorised Users if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to:
12.10 In relation to Personal Data (as defined in the Data Protection Directive 95/46/EC, as the same may be superseded by the General Data Protection Regulation 2016/67 (the "GDPR"), ("DP Legislation")) provided by the Adviser to Voyant for use in connection with the Services:
14.1 This Agreement commences on the Effective Date. The initial term is one month (the "Initial Term"). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one month each.
14.2 Either party may terminate this Agreement, effective only upon the expiration of the then-current term, by notifying the other party in writing at least 30 days prior to the date of the expiration of the then-current term.
14.3 Voyant, in its sole discretion, may suspend or terminate Adviser's access to the Service, or terminate this Agreement, upon any breach of Adviser's obligations hereunder (including unauthorised use of Content or the Service) or the occurrence of any circumstances which Voyant reasonably believes have resulted or will result in the Adviser becoming insolvent or bankrupt or otherwise ceasing to trade.
14.4 In addition, Voyant may terminate this Agreement at any time for its convenience, provided that, if such termination takes effect prior to the expiration of the then-current term, Adviser's ongoing payment obligations shall cease, and Voyant shall refund any sums paid by Adviser in advance, in respect of the unexpired portion of the then current term, but without prejudice to Adviser's liability to pay any outstanding balance on Adviser's account.
14.5 In the event this Agreement is terminated, Voyant will use its reasonable endeavours to make available to Adviser a file of the Adviser Data within 30 days of termination if Adviser so requests at the time of termination. Voyant reserves the right to withhold, remove and/or discard Adviser Data without notice for any breach of this Agreement. Upon termination for cause, Adviser's right to access or use Adviser Data immediately ceases, and Voyant shall have no obligation to maintain or forward any Adviser Data. Adviser agrees and acknowledges that Voyant has no obligation to retain the Adviser Data, and may delete such Adviser Data, more than 30 days after termination.
14.6 Upon termination of this Agreement, Sections 5 and 7 to 25 shall survive and remain in effect and all other rights and obligations shall cease.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Adviser represents and warrants that Adviser has not falsely identified itself nor provided any false information to gain access to the Service.
Adviser shall indemnify and hold Voyant, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) ("Damages") arising out of or in connection with: (i) a claim alleging that use of the Adviser Content infringes the rights of, or has caused harm to, a third party; and/or (ii) a claim by a third party arising from the breach by Adviser, Voyant Administrator or an Authorised User of this Agreement.
Adviser acknowledges that the Service and any other proprietary or confidential information (such as pricing) provided to Adviser or any Authorised User by Voyant (" Voyant Confidential Information") constitutes valuable proprietary information and trade secrets of Voyant. Adviser agrees to preserve the confidential nature of the Voyant Confidential Information by retaining and using it in trust and confidence, solely for Adviser's internal use and subject to the terms hereof, and by using the same degree of protection that Adviser uses to protect Adviser's own confidential information, but in no event less than reasonable care. Voyant shall have the right to seek an injunction (without having to post any bond or undertaking in damages or prove actual damages) to prevent any breach or continued breach of this section. Adviser agrees to promptly report any breaches of this section to Voyant.
18.1 Voyant warrants that the Service will be provided with reasonable care and skill.
18.2 No conditions, warranties or other terms apply to any Services under this Agreement except to the extent that they are expressly set out in this Agreement. Subject to the warranty above, no implied conditions, warranties or other terms apply (including implied terms as to quality, fitness for purpose or conformance with description) to the Services.
18.3 Voyant and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any Content. Voyant and its licensors do not represent or warrant that (a) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Service will meet Adviser's requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by Adviser through the Service will meet Adviser's requirements or expectations, (e) errors or defects will be corrected, or (f) the Service or the server(s) that make the Service available are free of viruses or other harmful components.
19.1 Voyant's Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Subject to Section 21, Voyant shall not be liable for any loss, liability or damage arising as a result of any failure, delay, limitation, delivery failure, inaccuracy or other fault in the operation of the internet and/or electronic communications not controlled by Voyant.
19.2 Neither party shall be in default for failing to perform any obligation hereunder if such failure is caused solely by supervening conditions beyond the parties' respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
20.1 Nothing in this Agreement excludes or limits Voyant's liability:
(a) for personal injury or death caused by its or its employees or agents negligence;
(b) for fraud or fraudulent misrepresentation;
(c) under any express indemnities contained within this Agreement;
(d) to pay any sums properly due and owing to the other in the course of normal performance of this Agreement;
(e) for the misuse of Voyant Confidential Information; or
(f) or any other liability which may not be excluded or limited by applicable law, even if any other term of this agreement would otherwise suggest that this might be the case.
20.2 Save as set out above, Voyant does not accept liability under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation of for any other reason) for any:
(a) loss of profits;
(b) loss of anticipated savings;
(c) loss of data;
(d) wasted management or other staff time;
(e) losses or liabilities under or in relation to any other contract;
(f) indirect, special or consequential loss or damage.
20.3 Save as set out above, Voyant's total liability, in respect of any six-month period preceding the applicable claim (the "Contract Half-Year"), arising from or in connection with this Agreement, and in relation to anything which the party concerned may have done or not done in connection with this Agreement (and whether liability arises because of a breach of contract, negligence or for any other reason) shall be limited to the amounts paid or payable by the Adviser under this Agreement for Services provided during the relevant Contract Half-Year.
20.4 Adviser and Voyant each acknowledge and agree that the limitations of liability provisions of this section reflect an informed, voluntary allocation between them of the risk associated with Adviser's use of the Service. In the absence of these provisions, Voyant would not have made the Service available for the fees charged.
21.1 The Service uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. No software may be downloaded from the Service and the Service may not be otherwise used, exported or re-exported by Adviser in violation of U.S. export laws.
21.2 Software contained within the Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730 -774 and Council Regulation (EC) No. 1334/2000
21.3 Voyant and its licensors make no representation that the Service is appropriate or available for use in locations other than the United Kingdom. If Advisor or any Authorised User uses the Service from outside the United Kingdom, Adviser is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion or use of the Content contrary to the laws of the United Kingdom is prohibited.
Voyant may give notice by means of a general notice on the Service via electronic mail to Adviser's e-mail address on record in Voyant's account information, or by written communication sent by first class mail or pre-paid post to Adviser's address on record in Voyant's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Adviser may give notice to Voyant (such notice shall be deemed given when received by Voyant) at any time by any of the following:letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Voyant at the following addresses: Voyant, Inc. 7300 Ranch Road 2222, Building, addressed to the attention of: Chief Financial Officer.
Voyant reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement and/or the applicable policy on the Service. Adviser is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Adviser's consent to such changes and agreement to be bound, provided however that if Voyant imposes a fee for continued use of the Service, Adviser will be required to enter into a Click-to-Accept modification hereto and supply payment information in order to be bound by such modification and continue access to the Service.
This Agreement may not be assigned by Adviser without the prior written approval of Voyant but may be assigned without Adviser's consent by Voyant. Any purported assignment in violation of this section shall be void.
25.1 This Agreement shall be governed by laws of England and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of England.
25.2 Notwithstanding the submission to the exclusive jurisdiction of England, Voyant may bring proceedings in the courts of any other state which have jurisdiction for reasons other than the parties' choice, for the purpose of seeking:
(a) an injunction, order or other non-monetary relief (or its equivalent in such other state); and/or
(b) any relief or remedy which, if it (or its equivalent) were granted by the courts of England would not be enforceable in such other state.
25.3 No text or information set forth on any other purchase order, pre-printed form or document shall add to or vary the terms and conditions of this Agreement.
25.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
25.5 No joint venture, partnership, employment, or agency relationship exists between Adviser and Voyant as a result of this agreement or use of the Service.
25.6 The failure of Voyant to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Voyant in writing.
25.7 This Agreement comprises the entire agreement between Adviser and Voyant and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
25.8 Save that an Affiliate of Voyant shall have the benefit of and the right to enforce all provisions in this Agreement which are for the benefit of and enforceable by Voyant, the parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement. The parties to this Agreement may agree to vary its terms without the consent of any Affiliate.
25.9 For the purposes of this Agreement, "Affiliate" means an entity under Common Control. An entity "Controls" another if it: holds a majority of the voting rights in it; is a member or shareholder of it and controls alone or pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; has the right to exercise a dominant influence over it pursuant to its constitutional documents or pursuant to a contract; and two entities are in " Common Control" if either controls the other (directly or indirectly) or both are controlled (directly or indirectly) by the same entity.
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to email@example.com or a notice to the address set forth in the notice provisions hereof.