Estgro Pro Terms and Conditions
You should read these terms and conditions carefully as they form the basis of the Agreement Between You and us (each as defined below) for the provision of access to the Estgro Pro service provided by Estgro Limited as an Advisor or an Accredited Advisor. By registering to use the Estgro Pro Service You confirm that You accept these terms and conditions and agree to be bound by them. Where You are registering to use the Service on behalf of a company, partnership, LLP, firm or other organisation, You confirm that You have the necessary authority to bind that organisation.
DEFINITIONS
1.1. The following definitions apply to these terms and conditions:
“We”, “us” or “our” refers to Estgro Limited (company number 4115231) of General Wolfe House, 83 High Street, Westerham, Kent TN16 1PG (“Estgro”).
“You” or “Your” means You, the individual (not being a consumer), firm, practice, partnership, company, or organisation who or which registers with us to use the Instruction Tool Service (“Service”).
“Account Profile” means the details of Your business completed and maintained by You as part of Your use of and subscription to the Service including Your company/business name and VAT number.
“Accredited Advisor Terms and Conditions” means the terms and conditions applicable to You if you are an Accredited Advisor which are set out in Schedule 2.
“Accredited Advisor” means a person or entity which has been granted accredited status by Estgro to receive referrals for estate planning or other advisory services through the Estgro Member Hub.
“Administrators” means each individual User who You designate via the Service from time to time to have administrator access to the Service.
“Advisor” means a person who is subscribed to use Estgro Pro.
“Advisory Team” means the specialist advisors who are allocated to a Referred Client to provide advisory and/or legal services. If You are an Accredited Advisor You will be eligible to be part of an Advisory Team for a Referred Client.
“Agreement” means the agreement Between You and us for the use of the Service which comprises these terms and conditions (as amended from time to time in accordance with clause 7.5.2), and any other documents referred to in these terms and conditions.
“API Fees” means the fees payable by You for access to an API as agreed between us.
“API” means an Application Programme Interface and any accompanying or related documentation, source code, executable applications and other materials made available by Arken, without limitation, through its developer Website.
“Authorised User” means such of Your authorised employees and consultants who are registered to use the Service including the Primary User and Administrators.
“Business Hours” means hours of 09.00 to 17.00 Monday to Friday UK time (excluding Public or Bank Holidays in England & Wales).
“Client Accessible Service” means any part of the Service which is intended to be accessed directly by Your Client.
“Client” means Your Client in respect of whom You are accessing the Service and in respect of who You are granting access to a Client Accessible Service.
“Commission” means the percentage that You will receive for Documents produced and ancillary advice given to a Referred Client where you have referred Your Client to a legal services provider through the Service.
“Content” means all information and material contained on the Site and within the Software, Downloaded Software and the Service including, without limitation, code, data, text, software, photographs, pictures, graphics, questionnaires, databases and reports but excluding Your Data.
“Documents” means the documents that are created by a legal services provider through the Service for your Client as part of their estate plan including but not limited to their Will, Trust Deeds, Lasting Powers of Attorney, Advance Decisions, General Powers of Attorney, Severances of Joint Tenancy, tax advice and reports, and gifting plans.
“Estate Health Check Report” means the high level auto-generated report which will be made available to You in Your Estgro Pro Hub in respect of Your Clients.
“Estate Plan Questionnaire Report” means a report that is created as an Advisor summary of the Estate Plan Questionnaire completed by Your Client as part of the provision of legal services by a legal services provider through the Service.
“Estate Plan Questionnaire” means a digital questionnaire that a legal services provider using the Service can send to Your Client to submit information about themselves, people involved in their estate plan and their asset and liabilities position.
“Estgro Pro Hub” means the portal that You will log in to, to access the Service as an Estgro User.
“Estgro Pro Service” means having access to the Estgro Pro Hub and being able to refer Your Client to receive pension, mortgage, insurance and/or estate planning services through the Service.
“Facilitation Subscription Fee” means the monthly subscription fee as notified on the Site where you are an Accredited Advisor with Limited Accreditation.
“Fees” means the Subscription Fees, together with any additional fees payable as an Accredited Advisor (if applicable) as detailed in Schedule 2.
“Free Trial” means the Free Trial offer as detailed on the Site whereby We will allow You access to the Service free of charge for a limited period for one Primary User for evaluation purposes.
“Full Accreditation” means where You have been accepted by Us as an Accredited Advisor and You are available for any Referring Advisor to select to provide advisory services to their clients in the area(s) for which you have been accredited through the Service.
“Funds” means money in Your Stripe Connect Account.
“Intellectual Property Rights” means all copyright, design right, registered designs, patents, trade and service marks, rights in relation to databases, know-how, rights in confidential information and all other intellectual property rights throughout the world, whether registered or unregistered and including all rights to applications, pending registrations, renewals and reversions.
“Limited Accreditation” means where You have been accepted by Us as an Accredited Advisor but you are only available to one or more (but not all) Referring Advisors to select to provide pension, mortgage and/or insurance services to their clients through the Service.
“Message” means a communication sent through the messaging functionality of the Service.
“Primary User” means the individual User who sets up Your Account Profile or who You otherwise designate via the Service from time to time to have primary user access to the Service.
“Privacy Notice” is the data protection provisions set out in the most recent Privacy Notice available at Schedule 1.
“Referral” means where a Referred Client is referred to you through the Service.
“Referred Client” means a person who is referred to You through the Service for the consideration of and/or provision of advisory services.
“Referring Advisor” means a person or entity (as the context requires) who refers their client to You through the Service.
“Reports” means the “Estate Plan Questionnaire Report” and the “Estate Health Check Report”.
“Schedule 1” is the schedule of data protection provisions.
“Schedule 2” is the schedule of provisions relating only to Accredited Advisors.
“Service Plan” means the plan You subscribed to from our Site or as otherwise agreed by You and us in writing and signed by our authorised representative.
“Service” means a subscription to the Estgro Pro Service (as the context requires) registered for via the Site or subscribed for directly through our customer services team, and includes access granted by us to any API in relation to the provision of those services or the connection of those services to any third party services.
“Site” means our Website www.estgro.com or any other Website notified to You by us from time to time.
“Software” means the software applications made available to You by us via the Service.
“Stripe Connect Account” means the account that You create through the Service or Your existing Stripe account which You connect through the Service into which You can receive Commission.
“Stripe Fees” means any fees charged by Stripe for receiving Funds into Your Stripe Connect Account including any applicable card processing fees but it does not include any fees charged by Stripe for the withdrawal of Funds from Your Stripe Connect Account.
“Stripe” means the payment platform provided by Stripe Payments Europe Limited which is the integrated payment platform of the Service.
“Subscribe” means where You use the Service because You pay Subscription Fees or because You are accessing the Service through a valid Free Trial.
“Subscription Fees” means the subscription fees payable by You for Your Service Plan as detailed on the fees page on the Site as updated from time to time or as otherwise agreed by You and us in writing and signed by our authorised representative.
“Term” means the annual term commencing on the date on which You purchase Your first Service Plan or the anniversary or succeeding anniversaries thereof.
“Third Party Services” means any services provided by third parties through an API with the initial interface being from the Site.
“Your Client” means a Client who has never been a Referred Client.
“Your Data” means the information and data provided to us by You or inputted by You or Your Authorised Users or Your Clients into the Service.
USER SUBSCRIPTIONS
2.1. Subject to the terms of the Agreement and payment by You of the applicable Fees, We hereby grant to You a non-exclusive, non-transferable right to permit Authorised Users to use the Service during the Term for Your internal business operations only.
2.1.1 If you add Users to Your account by inviting them to join your portal as an internal user, unless you are on a Free Trial or an Enterprise Plan, your subscription plan will increase by one User as soon as the invited User accepts Your invitation to join their account and Your invoiced Subscription Fees will be increased by the number of additional Users who join in any month.
2.1.2. The Subscription Fees will be pro rated for any Users who accept an invitation to join part way through a billing month.
2.1.3 Where you pay your Subscription Fees annually and you add an additional User during the annual term, you will receive a pro rated charge for the Subscription Fees attributable to the added User for the remainder of that annual term at the end of the month in which the User was added.
2.2. Your Primary User may, from time to time during any Term, upgrade to a higher Service Plan. The increased cost of the selected plan will be applied immediately on a pro rata basis for the remainder of the Term. For the avoidance of doubt, Service Plans cannot be downgraded partway through a Term.
2.3. In relation to the Authorised Users, You undertake that:
2.3.1. You will not allow or suffer any Authorised User to disclose or share their logon details to any third party, and not allow any other person to access the Service using their logon details;
2.3.2. You will ensure that each Authorised User keeps a secure and confidential password for their use of the Service; and
2.3.3. You will not, and will procure that Your Authorised Users will not, attempt to obtain, or assist third parties in obtaining, access to the Service (with the exception of assisting a Client to access a Client Accessible Service.)
2.4. You acknowledge that We are permitted to audit Your use of the Service in order to verify Your compliance with the Agreement. If an audit reveals that the Service has been used in breach of this Agreement, then, without prejudice to our other rights, We reserve the right to charge You for any unauthorised use.
2.5 You may allow Your Clients to have access to any parts of the service which is a Client Accessible Service where this is required for the functioning of that particular component, however, You will in no circumstances allow Your Clients access to any part of the Service where to do so would require the sharing of Your logon details or access to the Service using Your logon details.
2.6 Where You have subscribed to a Free Trial:
2.6.1 You may use the Service in accordance with the Agreement as if You had subscribed to a Service Plan, subject to trial limitations which We will advise from time to time;
2.6.2 at the end of the Free Trial, unless You subscribe to the Service:
a) You will cease to have access to the Service,
b) We may destroy or otherwise dispose of Your Documents and Your Data without further notice to You;
c) any Clients will continue to be able to use their Client Hub to view documents for a period of at least 90 days. After such time, We may remove their ability to login to the Service and We may delete any data relating to that client without notice to You;
d) where a Client has been referred for the provision of services through the Service, then the Referral is still valid and will continue in operation but you will not receive any Commission in respect of any Referral.
2.6.3 You may subscribe to the Service at any time during the Free Trial period by paying the Subscription Fees.
SERVICE
3.1. We will, during the Term, provide the Service to You in accordance with the Agreement.
3.2. We will provide technical maintenance of the Software and will provide or procure maintenance of the Service.
3.3. We will use commercially reasonable endeavours to ensure that the Service is available 24 hours a day, seven days a Week, except for:
3.3.1. any planned maintenance carried out during the maintenance window of 21.00 to 07.00 UK time; and
3.3.2. any unscheduled maintenance deemed by us to be necessary to perform outside of the maintenance window referred to above. In any such circumstances We will use commercially reasonable endeavours to give You at least 4 hours’ notice in advance where any such unscheduled maintenance occurs during Business Hours.
THIRD PARTY SERVICES
4.1 When making a Referral through the Service, We will send Your Client details to a third party Accredited Advisor (in line with the preferences You set in your Hub) to provide legal or estate planning, or other services to Your Client. For the avoidance of doubt, such Third Party Services are provided separately from this Agreement and are subject to the terms and conditions of the third party provider.
4.2 Estgro is not a party to any agreement for the provision of Third Party Services and expressly disclaim all liability for the provision of any Third Party Services, and You acknowledge that We are not a party to any contract with an Accredited Advisor resulting from a Referral through the Service.
4.3 In respect of any Third Party Services, the third party service provider (and not us) will be the Data Processor in respect of any Data Protection Legislation.
4.4 If You access an API, You:
4.4.1 must pay the API Fees;
4.4.2 must abide by a reasonable use standard in respect of any free test documents We allow You to create to test the API;
4.4.3 must not use any test documents for any purpose other than for testing the functioning of the API including for commercial gain, personal use or supplying to any third party;
4.4.4 acknowledge that You use the API at Your own risk and that Arken cannot be held responsible in any way for any information that You access or change through the API;
4.4.5 must keep confidential:
4.4.5.1 Your unique identifier;
4.4.5.2 Your client ID; and
4.4.5.3 Your client secret; and
4.4.6 You indemnify us against any loss cause by improper use of the API by You or as a result of any failure to keep confidential information required by clause 4.4.5.
4.5 In providing You access to an API We:
4.5.1 do not warrant that the API will be available for use and will not be liable for any loss whatsoever relating to the API being unavailable; and
4.5.2 will give You written notice of not less than three months if We intend to permanently withdraw access to an API in respect of which You are paying API Fees unless such withdrawal results from Your misuse of the API or breach of this Agreement.
4.6 We will take reasonable care in establishing that Accredited Advisors are of an appropriate professional standard when accepting them as Accredited Advisors, however We are not responsible for the conduct or advice or any Accredited Advisor in respect of You or Your Client.
YOUR DATA
5.1 Subject to the specific terms and conditions for Accredited Advisors in Schedule 2, as Between You and us, You will own all Intellectual Property Rights and other rights, title and interest in and to Your Data and You will have sole responsibility for the legality, reliability, integrity, accuracy, quality and security of Your Data.
5.2. You warrant that You have all necessary rights, consents and licences to provide Your Data to us in accordance with the Agreement and that use of Your Data will not infringe the Intellectual Property Rights or other rights of a Client or any other third party.
5.3. We will follow archiving procedures for Your Data as set out in our back-up policy (as may be amended by us at our sole discretion from time to time) a copy of which is available upon request (“Back-Up Policy”). In the event of any loss or damage to Your Data caused by us, Your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of Your Data maintained by us in accordance with our Back-Up Policy. We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform maintenance and back-up services of Your Data).
5.4. It is Your responsibility to maintain Your own record and copies of Your Data and of any Documents and Reports created via the Service as required by any applicable laws and Your own internal data retention policies.
5.5. In providing the Service, We will comply with the Data Protection Legislation as defined at Schedule 1. Where there is any inconsistency Between the terms of the Privacy Notice and any other term of the Agreement, the terms of the Privacy Notice shall take precedence only in respect of the processing of Your Data. References to “include”, “includes” and “including” shall be read as being followed by “without limitation” so as to provide a non- exhaustive list of examples.
5.6. You acknowledge that, except in relation to any Third Party Services, in the processing of any personal data contained in Your Data, the intention is that You will be the data controller and We will be the data processor of such personal data (as these terms are defined in Data Protection Legislation) and in any such case:
5.6.1. You will ensure that You are entitled to transfer the relevant personal data to us so that We may lawfully use, process and transfer the personal data in accordance with the Agreement including sending Your Data in relation to Your Client to an Accredited Advisor where a Referral has been made through the Service;
5.6.2. You will ensure that You do not do anything in relation to Your Client which would invalidate their consent to enable Us to pass to You the Estate Questionnaire Summary Report and the Estate Health Check Report or to pass the Estate Health Check Report to an Accredited Advisor to whom they had been Referred;
5.6.3. You will ensure that the relevant Clients and other third parties have been informed of such use, processing and transfer as required by Data Protection Legislation;
5.6.4. We will process the personal data only in accordance with the Agreement; and
5.6.5. all parties will take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.7. The Estate Health Check Report and the Estate Questionnaire Summary Report are confidential data belonging to Your Client and you should use them only in strict compliance with Data Protection Legislation and with the express permissions of Your Client.
YOUR OBLIGATIONS
6.1. You undertake and agree that You will at all times during the Term and, where applicable, following termination, comply with the terms of the Agreement.
6.2. You undertake and agree that You will and where applicable You will procure that Your Authorised Users will:
6.2.1. keep Your Account Profile up to date at all times;
6.2.2. keep secure Your password, log on details, client ID, client secret and unique identifier (as applicable);
6.2.3. comply with all applicable laws and regulations with respect to Your activities under the Agreement and in the use of the Service;
6.2.4. use the Service in accordance with the Agreement;
6.2.5. be solely responsible for procuring and maintaining hardware and telecommunication links to enable Authorised Users to access and use the Service;
6.2.6. not do anything that would incur any liability on our behalf or that could bring our name or reputation or that of the Software or the Service into disrepute;
6.2.7. notify us immediately should You become aware of any error which renders the Service defective; and
6.2.8. use all reasonable endeavours to prevent any unauthorised, unlawful or improper access to or use of the Service and, in the event of any such access or use, You will notify us promptly.
6.3. You must ensure that Your Authorised Users accessing the Service are competent and suitably qualified in all respects. We do not accept responsibility for the correctness or appropriateness of any Documents, Reports or any actions taken by You or Your Clients in reliance on the same.
6.4. You are responsible for ensuring Your Authorised Users comply with the terms of the Agreement.
6.5. You will not access, store, distribute or transmit any viruses, Trojan horses or worms, or any material during the course of Your use of the Service that:
6.5.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
6.5.2. facilitates illegal activity;
6.5.3. depicts sexually explicit images;
6.5.4. promotes unlawful violence;
6.5.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
6.5.6. causes damage or injury to any person or property.
6.6. Except as may be allowed by any applicable law which is incapable of exclusion by agreement Between the parties, You will not:
6.6.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download (except in the case of Downloaded Software), display transmit, or distribute all or any portion of the Service or the Software in any form or media or by any means;
6.6.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service or the Software; or
6.6.3. access all or any part of the Service, the Software, or any Documents or Reports created using the Service in order to build a competing product or service.
6.7 In allowing Your Clients to access a Client Accessible Service, they will be bound to our terms of use of the Client Accessible Service (which are available to You on request). In giving advice or services to any Referred Client, You must bind them to terms and conditions which are no less onerous than the terms and conditions of this Agreement, including (but not limited to) acknowledging that for the purpose of their using the Service that You are the data controller, that We are not a party to any agreement between You and Your Client or between You and any Referred Client.
6.8 You must obtain the necessary express consent to contact people named in the Estate Questionnaire Summary Report, meaning:
a) if it is in relation to Your Client’s estate or financial plan, the express permission of Your Client;
b) if it is in relation to wider business purposes, the express permission of the person to be contacted after such contact has been initiated by Your Client to obtain their consent; and
c) any additional consent that is required to comply with Data Protection Legislation and Your obligations to Your Client.
6.9. If You are an Accredited Advisor, You must also comply with the specific terms and conditions of Schedule 2 of this Agreement. To the extent that the terms and conditions in Schedule 2 conflict with the rest of this Agreement, the terms of Schedule 2 shall prevail.
OUR RIGHTS AND OBLIGATIONS
7.1 We undertake that in providing the Service We will comply with the Agreement and, in so doing, will apply all reasonable skill and care.
7.2. We will use commercially reasonable efforts to rectify any material errors in the Software or the Service as soon as reasonably practicable after becoming aware of or being notified (by You or a third party) of the same. We reserve the right to suspend the Service whilst any such errors are rectified.
7.3. Notwithstanding the foregoing, We:
7.3.1. do not warrant that Your use of the Service will be uninterrupted or error-free, nor that the Service, Documents, Reports and/or information obtained by You through the Service will be error-free or will meet Your requirements;
7.3.2. do not accept responsibility for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and You acknowledge that the Service, Documents and Reports may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
7.3.3. do not warrant the functionality or compatibility of the Service or the Software with any particular browser or operating environment including but not limited to Mobile devices or software.
7.4. Nothing in the Agreement will prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
7.5. We reserve the right to:
7.5.1. suspend Your access to the Service for any reason, at our sole discretion, at any time; and
7.5.2. change these terms and conditions at any time. Any changes to these terms and conditions will be available via the Site.
FEES AND PAYMENT
8.1 You must pay the Fees to us in accordance with this clause 8 and, if You are an Accredited Advisor, also in accordance with Schedule 2.
8.2. The Subscription Fees are payable in advance and may either be paid annually or by 12 equal monthly instalments in advance, and:
8.2.1 are chargeable on a per user basis, and
8.2.3 if the number of users is increased, the Subscription Fees applying in respect of that user will be applied immediately but will be pro-rated across the then current month or year as the case may be and the additional user Subscription Fees will be invoiced immediately, and
8.2.4 You may reduce the number of Users in your Subscription by telling us at hello@estgro.com and the Subscription Fees applying in respect of those user(s) will cease after one month’s notice to us ending at the end of the following billing month, except where You pay annually and You have reduced the number of users, Your notice period in respect of added users will end at the end of your current billing year, and
8.2.5 for the avoidance of doubt, deactivating or deleting a user in your Hub will not constitute giving us notice for the purposes of this clause as a user subscription can be reallocated to another user who is added by you.
8.3. Payment of all Fees:
8.3.1. will be by Direct Debit, Debit Card, or Credit Card;
8.3.2. is, unless otherwise expressly stated in the Agreement, non-cancellable and non-refundable;
8.3.3. is exclusive of value added tax, which will be added to the Fees at the appropriate rate from time to time.
8.4. We will be entitled to increase the Fees at any time provided that We will not increase the Fees more than once in any year. Details of the new Fees will be available via the fees page on the Site or notified to You by email or in writing.
8.5. Whilst payment of any Fees remains outstanding, We may, without liability to You and without prejudice to our other rights and remedies, revoke Your account and/or disable Authorised Users’ passwords and access to all or part of the Service and We will be under no obligation to provide any or all of the Service.
8.6. If We have not received payment of the Fees by the due date for payment, without prejudice to our other rights and remedies, We may charge interest on a daily basis at the rate of 2% per month commencing on the due date and continuing until fully paid, whether before or after judgment. We reserve the right to escalate attempts to collect any Fees which remain unpaid 30 days after their due date to a legal services organisation and/or to a collection agency and any fees or costs relating to this escalation shall be borne by You in addition to the unpaid Fees and interest charges.
8.7 If any payment of Fees is outstanding, you will not be eligible to receive Commission that would otherwise be owing during the period that the Fees are outstanding and such Commission is to be treated as having been completely foregone and shall not be payable in arrears after the outstanding Fees have been paid.
8.8 You will not set off any Fees which you owe Us under this agreement against any Commission which We owe to You or which you claim that We owe to You.
INTELLECTUAL PROPERTY RIGHTS
9.1. You acknowledge and agree that We (or our licensors) own all Intellectual Property Rights in the Content. Except as expressly stated herein, the Agreement does not grant You or Your Authorised Users any rights to the Intellectual Property Rights or any other rights or licences in respect of the Content.
TERM AND TERMINATION
10.1. The Agreement will come into force upon the commencement of any agreed Free Trial or the first Term and, subject to earlier termination in accordance with the Agreement, will automatically renew for further Terms (each lasting for 12 months) unless terminated by either party giving the other not less than 3 months’ notice in writing to end on the last day of the then current Term.
10.2. An Agreement for a Free Trial shall automatically terminate at the end of the Free Trial period unless You subscribe to the Service during the Free Trial period by paying the Subscription Fees.
10.3. We may withdraw the Service from You at any time at our sole discretion by giving You not less than 3 months’ notice. In the event that We withdraw the Service in these circumstances, We will refund to You any Subscription Fees paid by You which relate to the period after such withdrawal.
10.4. Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
10.4.1. the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
10.4.2. the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 days after being notified in writing to do so;
10.4.3. 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;
10.4.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors 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;
10.4.5. 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;
10.4.6. 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;
10.4.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
10.4.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.4.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; or
10.4.10. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.5. Where You are an Accredited Advisor and You are a company, partnership or business and You undergo a change in ownership or control of greater than 50%, We may, at our sole election, terminate this agreement in its entirely or restrict the application of this Agreement to You so that You are no longer an Accredited Advisor after giving You 14 days’ written notice.
10.6. Save as set out in this clause 10, You are not permitted to terminate the Agreement part way through a Term and must pay the Subscription Fees for the whole Term.
10.7. Without prejudice to our other rights and remedies, if We terminate the Agreement in accordance with clause 10.4 prior to the end of a Term, We may invoice You for the Subscription Fees which would have been payable had the Agreement continued until the end of the Term. Such invoice will be payable immediately upon receipt.
10.8. On termination of the Agreement for any reason:
10.8.1. Your right to use and access the Service will immediately terminate;
10.8.2 following termination We will give You access to the system for a period of 5 days solely to download a copy of all of Your Data, Reports and Documents which are then held via the Service. Following such period We will be entitled to securely destroy or otherwise dispose of Your documents, reports and Your Data;
10.8.4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.
10.8.5 If You have been eligible to receive Commission, Your right to receive Commission will cease upon termination of this Agreement.
CONFIDENTIAL INFORMATION
11.1. Each party may be given access to business and financial information, technology, trade secrets, and any other information of a confidential nature of the other party or in Respect of Your Client (“Confidential Information”) in order to perform its obligations under the Agreement. A party’s Confidential Information will not be deemed to include information that:
11.1.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2. was in the other party’s lawful possession before the disclosure;
11.1.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2. Subject to the provisions of Schedule 2 which will apply if You are an Accredited Advisor, each party will hold the other party’s Confidential Information in confidence and, unless required by law, not make the other party’s Confidential Information available to any third party or use the other party’s Confidential Information for any purpose other than the performance of the Agreement. Nothing in this clause 11 will prevent us from using third party service providers (including hosting providers and contractors) in the provision of the Service subject to compliance with the Privacy Notice.
11.3. Each party will take reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents (including, in Your case and for the avoidance of doubt, Authorised Users), in violation of the Agreement. We will not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.4. You acknowledge that details of the Service and the results of any performance tests of the Service constitute Our Confidential Information. You further acknowledge that We will be entitled to retain and use both during and after the term of the Agreement any information and data received or generated from the use of the Service on an anonymised, de-identified basis which does not identify You or Your Clients for such purposes as We may require including for producing reports, forecasting, monitoring, analysis and operational purposes.
11.5. We acknowledge that Your Data is Your Confidential Information.
11.6. This clause 11 will survive termination of the Agreement, however arising.
LIMITATION OF LIABILITY
12.1. Nothing in the Agreement excludes our liability:
12.1.1. for death or personal injury caused by our negligence; or
12.1.2. for fraud or fraudulent misrepresentation.
12.2. You will have no claim against us arising from any actions brought against You by Your Clients or associated third parties arising from the use of the Service or the use or content of any Confirmation of Instruction Letter or reports generated by the System.
12.3. You assume sole responsibility and entire risk as to the suitability of the Service, for any decisions or actions You take based on information or data contained in the Service or. You acknowledge that:
12.3.1. We cannot under any circumstances be regarded as supplying tax, legal accounting or any other advice. Any information provided to Your Client or Referred Client through the Service is for information only and should not be relied on as a substitute for professional advice which You should provide Yourself or is provided to Your Client by an Accredited Advisor.
12.3.2. You are not relieved of any responsibility, including to any third party, for the preparation, content, accuracy and review of any messages or documents shared through the Service; and
12.3.3. the Service and Reports are not intended nor can they be relied upon as a substitute for professional advice provided by a Referred Advisor or Your exercise of proper professional judgment as may be required.
12.4. Whilst We will take such measures as are consistent with good industry practice to reasonably ensure that the System is fit for purpose and free from viruses, Trojan horses and worms We do not accept liability for:
12.4.1. the transmission of any virus, Trojan horse, worm or other routine or device;
12.4.2. any inaccuracy of information provided as part of the Service,
12.4.3. the content of any Documents, messages, Reports, quotes or Confirmation of Instruction Letters created by the Service;
12.4.4. failure in the sending or delivery of e-mails, messages or other data; or
12.4.5. lapses or defects in the security of the Software or the Service.
12.5. Subject to clause 12.1:
12.5.1. We will not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of opportunity, loss of business, depletion of goodwill and/or similar losses or loss or corruption of systems, data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
12.5.2. our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement will be limited to an amount equal to the Subscription Fees paid by You during the Term during which the claim arose.
12.6. Except as expressly and specifically provided in these terms and conditions all warranties, representations conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement including, without limitation, warranties of satisfactory quality or fitness for a particular purpose and the Service is provided to You on an “as is” basis.
GENERAL
13.1. These terms and conditions are the only terms and conditions applying to our provision of the Service and apply to the exclusion of any other express or implied conditions including any terms and conditions to which any order of Yours may purport to be subject.
13.2. No variation to the Agreement will be binding unless agreed in writing Between duly authorised representatives of the parties.
13.3. In these terms and conditions, the introduction the schedules, and any policies referred to by this Agreement any reference:
13.3.1. to any statute or statutory provision includes a reference to that statute or statutory provision as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant statute or statutory provision;
13.3.2. to the singular includes a reference to the plural and vice versa;
13.3.3. to any gender includes a reference to all other genders; and
13.3.4. headings used in these terms and conditions are for ease of reference only and will not affect its interpretation.
13.4. No delay or forbearance by us in enforcing any provisions of these terms and conditions will be construed as a waiver of such provision or any agreement thereafter not to enforce the said provision on that or any other occasion or another provision on another occasion.
13.5. We will have no liability to You under the Agreement if We are prevented from or delayed in performing our obligations under the Agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, denial-of-service/distributed denial-of-service attacks, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
13.6. The Service and the Reports do not provide legal advice nor represent a legal advisory service.
13.7. If any provision of these terms and conditions is found void and unenforceable, it will not affect the validity of the remainder of the provisions which will remain valid and enforceable.
13.8. We may at any time assign, subcontract, mortgage, charge, declare a trust over or deal in any other manner with any or all of our rights under the Agreement. You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of Your rights and obligations under the Agreement without our prior written consent.
13.9. Where two or more legal entities constitute You, their liability will be joint and several.
13.10. The Agreement will be governed by the laws of England and Wales and the parties irrevocably agree that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
Schedule 1
Privacy Notice
Estgro Limited: ICO Registration: ZB491733
Our Data Protection representatives can be contacted by email on:
1.This privacy notice describes how We collect, use and store personal information about You during and after Your business relationship with us, in accordance with the Data Protection Act 2018 (DPA 2018) and the UK General Data Protection Regulation (UK GDPR).
2. Estgro Limited is a data processor for Your Data when it is collected in respect of Your Client. This means that You are responsible for deciding how We hold and use Your Data. We are required under the DPA 2018 / UK GDPR to notify You of the information contained in this privacy notice.
3. In respect of Your Data relating to You and Your Authorised Users, We may be a Data Controller as specified in clause 8 of this privacy notice. You can require that We delete such data, but We may not be able to perform our obligations under this Agreement if You do.
4. We may update this notice at any time. We will notify You by posting the updated notice on the Site.
5. It is important that You read this notice, together with any other privacy notices We may provide on specific occasions when We are collecting or processing personal information about You, so that You are aware of how and why We are using Your personal information.
DATA PROTECTION PRINCIPLES
6. We will comply with all relevant data protection law (including the DPA 2018 / UK GDPR). This requires that the personal information:
a) used lawfully, fairly and in a transparent way;
b) collected only for valid purposes that We have clearly explained to You and not used in any way that is incompatible with those purposes;
c) relevant to the purposes We have told You about and limited only to those purposes;
d) accurate and kept up to date;
e) kept only as long as necessary for the purposes We have told You about; and
f) kept securely.
7. We are accountable as a Processor for the principles and individual rights with respect to the processing We undertake.
THE KIND OF INFORMATION WE collect and HOLD ABOUT YOU
8. Your Data includes personal data, or personal information, and means any information about an individual from which that person can be identified, whether directly or indirectly. It does not include data where an individual cannot be identified (anonymous data).
9. In respect of You, We collect Data including:
a) Your full name, contact details and payment details,
b) Your Authorised Users and their full name and contact details, and
c) Your Clients and their full name and contact details.
10. For Your Clients (for whom We act as data processor) the following data types are entered into our system by or on behalf of You and/or Your Authorised Users and/or Your Clients:
a) Full name,
b) gender,
c) date of birth,
d) address, email address and telephone number,
e) family relationships,
f) assets / liabilities information,
g) health information about Your Clients and their beneficiaries, and
h) information regarding Your Clients’ Will(s) and other legal documents.
11. We also collect, store and use the following special categories of sensitive personal information:
a) information about the religious preferences of Clients when an Accredited Advisor creates Islam-compliant Wills, or where such information is otherwise inputted by You, Your Authorised Users or Your Clients; and
b) information on Your Clients’ medical history, addictions, or that of any beneficiary.
12. Your Data is collected through our data capture process with Clients and certain elements of it are shared with organisations who support our business operation including our Web developers, AWS and payment provider.
13. Where You are an Accredited Advisor, and where Your Data relates to a Referred Client, Your Data relating to that Client will be shared with the Client’s Referring Advisor and members of that Client’s Advisory Team.
14. Access to personal data in the Service is permission-based and is stored in the UK. No personal data is transferred outside of the EEA.
15. We have put measures in place to protect the personal data We process, such as two-factor authentication – further details on these measures can be requested from us at hello@estgro.com.
HOW WE WILL USE INFORMATION ABOUT YOU
As a Data Controller:
16. We need all the categories of Your Data detailed at clause 9 of this Privacy Notice to allow us to conduct our business operation. Some of the grounds for processing will overlap and there may be several grounds which justify our use of Your personal information.
17. We will process Your Data in line with our legal obligations. In some cases, We may use Your personal information to pursue legitimate interests of our own or those of third parties, provided Your interests and fundamental rights do not override those interests.
18. The situations in which We will process Your personal information are:
a) administration of a contract We have entered with You and providing our products and services to You;
b) business management and planning, including accounting and auditing. In these instances, We will share Your personal data with our accountants and associated reporting platforms;
c) planning for the on-boarding or termination of our contracting relationship;
d) dealing with legal disputes involving You, or any disputes that may arise under the contract that We have with You or the way in which We provide our products and services to You.
As a Data Processor:
19. Our use of Your Data will be as required to perform our obligations under this Agreement
Data retention
20. We will only retain Your personal data for as long as necessary to fulfil the purposes We collected it for.
21. During the term of this Agreement, We will retain Your Data until We receive from You or Your Authorised User an instruction to delete.
22. After the term of this Agreement, We may delete Your Data in accordance with the terms of this Agreement, and in any event We will delete Your Data within six months of termination.
23. Any incomplete records or entries will be deleted after a period of six months.
RIGHTS OF ACCESS, CORRECTION, ERASURE & RESTRICTION
24. It is important that Your Data is accurate and current. Please keep us informed if Your Data changes during the term of this Agreement.
YOUR RIGHTS
25. You have the right to:
a) make a Subject Access Request – this enables You to receive a copy of Your Data. To action this request, please email the relevant data protection contact listed at the top of this Privacy Notice.
i) We require a suitable form of identification and under normal circumstances, We will supply You the information requested in Your Subject Access Request within one calendar month of the request and of identification being received.
ii) No fee is usually payable; however, We may apply an appropriate fee if the request is deemed to be excessive, or repetitive.
b) Request Correction – this enables You to have any of Your Data corrected.
c) Request Erasure – You can request that We delete or remove Your Data when there is no good reason for us to continue processing it.
d) Object to Processing – in certain circumstances, You have the right to request We suspend the processing of Your Data. Please contact us if You require more information on this.
e) Request Transfer – You have the right to request the transfer of Your Data to a third party. Please contact us if You require more information on this.
f) Withdraw Consent – where We rely on consent to process Your Data, You have the right to withdraw this at any time, without giving reason. To withdraw Your consent, please contact the data protection officer. Once received, We will not process Your data for the reasons You have withdrawn consent for, unless We have another legal basis for doing so.
g) Complain – You have the right to complain at any time to the Information Commissioners’ Office (ICO) regarding data protection issues – https://ico.org.uk6
26. We reserve the right to update this privacy notice at any time. If You have any questions about it, please contact us at to hello@estgro.com.
Schedule 2
Terms and Conditions Applicable to Accredited Users
Application of Schedule
1.This schedule only applies if You apply to be and/or You are accepted to be an Accredited Advisor.
Rights and Obligations as an Accredited Advisor
2. The obligations contained in this Schedule 2 shall apply in addition to the other obligations set out in this Agreement. The terms of this Schedule shall prevail over any other term of this Agreement unless agreed otherwise by Us in writing.
3. An Accredited Advisor is eligible to receive the Service through the Estgro Pro Hub and receive leads for Referred Clients through the Service.
4. To be an Accredited Advisor, You must have a valid subscription to the Estgro Pro Service and You must pay the required Accreditation Fees as listed on the Site from time to time, or as agreed between Us.
Eligibility to be an Accredited Advisor
5. Eligibility to be an Accredited Advisor is at Our sole discretion.
6. We will base our initial decision to accept You as an Accredited User on the information that You provided in Your application and in discussions with Us before your accreditation, and if that information changes, you must tell us.
7. If We decide that You are no longer eligible to be an Accredited Advisor, unless You are in breach of this Agreement we will give You at least three months’ notice of the date on which Your status as an Accredited Advisor will end.
8. If You are in breach of this Agreement, We may end Your Accredited Advisor status with immediate effect whether or not we also terminate this Agreement.
9. If Your Accredited Advisor status ends, You will not be required to pay any accreditation Fees for the remainder of the Term however, you will still be obliged to pay the Subscription Fees in accordance with this Agreement.
Referrals
10. As an Accredited Advisor, You are eligible to receive leads for Referred Clients through the Service.
11. We do not have any obligation to provide leads or a specified number of leads to you.
12. If you have Full Accreditation, we will display your profile to all Referring Advisors using the Estgro network and they will have the choice of selecting You as the preferred service provider in your accredited areas of specialism to their clients. You will not have any contractual relationship with Us or a Referring Advisor through the Service, and neither We nor the Referring Advisor has any legal obligation to You.
13. If you have Limited Accreditation, you will only be eligible to receive leads from a particular Referring Advisor and you will only be visible to them in the Service as a potential service provider for their own clients.
14. We do not guarantee the bona fides, identity or any other characteristic of a Referred Client referred to you through the Service, you must rely on your own investigation and judgement as to whether you wish to contract with the Referred Client.
15. You must contact a Referred Client to investigate whether they are suitable to be Your Client. You should accept a Referred Client as Your Client unless you consider, acting reasonably that:
a) You currently have a conflict of interest in respect of the Referred Client;
b) the Referred Client fails any identity checks that you have carried out;
c) the Referred Client fails any anti-money laundering checks you have carried out; or
d) there is another valid reason for not accepting or not continuing to accept the referred person as a Referred Client.
16. Where You receive a referral through the Service and the person referred is already a Client of Yours, then subject to You providing Us with evidence to Our satisfaction that You have already work for that Client, that Client will not be a Referred Client of Yours for the purposes of this Agreement.
17. You must pay us a Referral Fee for each referral in accordance with paragraph 31of this schedule.
Contacting a Referred Client
18. If You are sent the details of a Referred Client through the Service, You must:
a) attempt to contact the Referred Client by email, Message or telephone call within two business days;
b) if You receive no response from the Referred Client, You must attempt to contact them again within seven business days of receiving the referral, and
c) if You are still receive no response, You must attempt to contact them again within fourteen business days of receiving the referral.
d) If You have received no response from the Referred Client after twenty business days, You must inform the Client’s Referring Advisor that You have been unable to establish contact with the Referred Client.
19. If:
a) having made contact with a Referred Client in accordance with Clause 17 of this Schedule, the Referred Client indicates that they do not wish to proceed to receive services from You, or
b) if You have not received any communication with the Referred Client within 6 calendar months of the date that You received the referral, then You must:
i) contact the Referred Client’s Referring Advisor and inform them that the client has declined to proceed to receive services or a quote for services from You, or that You have been unable to establish contact, as the case may be;
ii) not contact the Referred Client again; and
iii) delete from the Hub and keep no copy of the Referred Client’s data.
Communicating with a Referred Client
20. If You receive any communication from a Referred Client, You must respond to it within one business day.
21. If You will be unable to reply to a client within one business day:
a) because of accident, illness, bereavement, serious personal circumstances or act of God You should reply as soon as You are able; or
b) because of a planned absence such as annual leave, You should send a Message to the Referred Client through the Service before the absence informing them that there may be a delay in responding to their communications and which Authorised User they should contact if they have questions in Your absence.
22. All initial communications with a Referred Client should, wherever possible, be conducted via Messages or document transfer through the Service, in person, or via telephone.
Allocating a Referred Client
23. If You have received a referral of a Referred Client, You must allocate them to a specific Authorised User (who can be Yourself) either at the time that the referral is received or at any time up until one business day after contact has been established with the Referred Client in accordance with this Schedule. You do not have to allocate a Referred Client if they decline to consider service provision by You.
Estgro and Arken not party to Contract with Referred Client
24. If a Referred Client agrees to engage you to provide advice or services, you must send them written confirmation of the contractual basis on which they are engaging You for services.
25. For the avoidance of doubt, We and the Referring Advisor must not be a party to a contract between You and a Referred Client, and You must make this clear in your contractual terms of engagement.
26. You agree to indemnify and hold us blameless in respect of a Referred Client for whom You are providing services.
Setting Fees
27. You will have the freedom to set Your own costs to Referred Clients for the provision of services to them provided they are commercially reasonable in the circumstances.
28. Your pricing must be transparent to a Referred Client before you provide services to them.
29. If we believe, at our sole discretion, that you have not acted reasonably when setting fees and charges or invoicing a Referred Client, then we may suspend or cancel your accreditation with immediate effect.
Estgro Fees
30. To become Accredited, You must subscribe to the Estgro Connect Plus plan (or an Enterprise plan as agreed with us in writing) as listed on the Site from time to time.
31. You must pay us a referral fee for each Referral that is sent to you through the Service as listed on the Site from time to time. If you do not wish to receive referrals you must inform us at hello@estgro.com.
32. We reserve the right to change the Estgro Fees at any time but We will not increase the Estgro Fees more than once in a calendar year. We will communicate any changes to the Estgro Fees by changing them on the Site not less than 30 days before such changes come into effect.
Obligation to keep profile up to date
33. You must ensure that all of the details in Your personal and Business Profile are up to date and complete including:
a) a profile picture for each Authorised User;
b) Your Business name and type;
c) Your professional accreditations and qualifications; and
d) the number of specialists in each business area.
34. Where We request information from You prior to approving You to be an Accredited Advisor, You must keep that information up to date and notify us immediately if anything You have told us during Your Estgro application process has changed.
Obligation to provide work of a professional standard
35. You must ensure that:
a) You complete all work done for a Referred Client to an acceptable professional standard,
b) that You maintain the required level of skill and professional registration, and
c) You provide Your service to a Referred Client in a timely and efficient manner.
Obligation to maintain Professional Indemnity Insurance
36. As an Accredited Advisor You must maintain Professional Indemnity Insurance with an insurer of at least AA rating which provides cover for any work done by Your Authorised Users for Referred Clients to a level of at least £5m.
Ownership of the Client Relationship
37, You will own the relationship with a Referred Client only in respect of work referred to you in the specific service area for which they have been referred.
38. Nothing in this agreement shall preclude Us from referring a Referred Client to another Estgro User in any service area provided through the Service (even if the Referred Client has already been referred to You) where:
a) the Referred Client has requested us to make the referral;
b) the Referred Client’s Referring Advisor has requested us to make the referral;
c) this Agreement has terminated;
d) You are in breach of this Agreement;
e) You are no longer an Accredited Advisor; or
f) there has been a material change to the information which we relied upon in accepting You as an Accredited Advisor.