Upstream Advisors Terms of Use (Benchmark Tool)

All capitalised terms are as defined in clause 1 below.

“We” “us” or “the Host” are Upstream Advisors Limited, the owners of the Site, and these terms set out the basis on which You agree with us to access the Site so as to use the Benchmark Tool. Use of the Site is also subject to the Privacy Policy [link].

Agreed terms

1. Interpretation

Confidential Information - all information, whether technical or commercial, where the information is:

  1. identified as confidential at the time of disclosure; or
  2. ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Intellectual Property Rights - all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Personal Data - bears the meaning given in the Data Protection Act 1998.

Privacy Policy - our online privacy and cookie policy available at www.upstream-advisors.com

Benchmark Tool - the high level capital expenditure overview element of the System which made available by Us to You on a software as a service basis free of charge as further set out in these terms of use

Site - the website at www.upstream-advisors.com hosted by the Host to which You are a Visitor pursuant to this agreement.

System - the online system for capital expenditure evaluation as is more particularly described at [quikest.upstream-advisors.com] which is available for license to users in accordance with our commercial Software as a Service agreement.

Visitor - a person visiting the Site, whether for the purpose of accessing the Benchmark Tool or evaluating the System or otherwise.

1.2 Clause headings do not affect the interpretation of this agreement.

1.3 References to clauses are (unless otherwise provided) references to the clauses of this agreement.

1.4 Words in the singular include the plural and in the plural include the singular.

1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being made under it.

1.6 References to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation.

1.7 References to written or writing include material submitted electronically.

2. Benchmark Tool

2.1 The Benchmark Tool may be accessed by Visitors to the Site on a software as a service basis strictly in accordance with these terms and conditions. Your attention is specifically drawn to the fact that the Benchmark Tool gives a high level overview only and it should not be used as the basis for making business decisions with respect to financial commitment.

2.2 It is specifically drawn to Visitors’ attention that the provision of the Benchmark Tool may be time-limited or otherwise restricted by Us.

2.3 The Benchmark Tool is supplied in accordance with these terms of use and the service descriptions.

2.4 The Visitor acknowledges that the Site is made available for the express purpose of permitting the Visitor to carry out its own evaluation of the suitability of the System for the Visitor’s own business purposes. Nothing in the Site or the Benchmark Tool is intended to be nor will it be relied on by the Visitor as a representation by Us as to the System’s suitability for any specific purpose whether or not made known by the Visitor to the Host.

2.5 Save as expressly set out in this agreement, all conditions, warranties and representations whether express or implied, statutory or otherwise as to the Benchmark Tool are hereby excluded.

3. Payment

3.1 We reserve the right to charge for the Benchmark Tool and will notify You of any proposed charges by notice on the Site at the time of accessing the Benchmark Tool and prior to Your use of the same. Pending the giving of such notice, The Benchmark Tool is provided free of charge.

4. Warranties

4.1 The Benchmark Tool has been checked for viruses and other malicious code in accordance with good industry practice.

4.2 Save as expressly provided in this clause 4, the Benchmark Tool is made available “as is” and no representations as to its functionality, suitability, performance or any features or functions of the Benchmark Tool are offered by the Host.

5. Limitation of remedies and liability

5.1 Nothing in this agreement shall operate to exclude or limit either party’s liability for:

  1. death or personal injury caused by its negligence; or
  2. fraud; or
  3. any other liability which cannot be excluded or limited under applicable law.

5.2 We shall not be liable to you for any loss or damage whether direct or indirect arising out of any reliance by you on any results derived from your use of the Benchmark Tool for any business purpose whatsoever.

5.3 Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

5.4 Save as set out in clause 5.1 above, the Host’s liability in respect of any breach of any provision of this Agreement shall not exceed £1000.

6. Intellectual property rights

6.1 All Intellectual Property Rights in the Site the System and the Benchmark Tool remain those of the Host and will only be licensed to the Visitor to use as contemplated by this agreement during its term.

7. Indemnity

7.1 Each party (the indemnifying party) shall subject to clause 7.2 below and clause 5.3 above indemnify the other (the party indemnified) against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party arising out of the acts or omissions of the indemnifying party in connection with this agreement or out of all costs, claims damages and expenses arising as a result of any breach of clause 9.1 below.

7.2 The indemnity in clause 7.1 is subject to the following conditions:

  1. the party indemnified notifying the indemnifying party in writing of the action or claim;
  2. the party indemnified making no admissions or settlements without the indemnifying party’s prior written consent;
  3. the party indemnified giving the indemnifying party all information and assistance that the indemnifying party may reasonably require; and
  4. the party indemnified allowing the indemnifying party complete control over the litigation and settlement of any action or claim.

8. Site content

8.1 All data and other materials supplied to the Host by the Visitor (including but not limited to any feedback or reports provided by the Visitor in respect of the Visitor’s use of the Benchmark Tool) must:

  • Be material in which the Visitor owns all applicable intellectual property or is entitled to supply and not breach the confidence of any third person.
  • Be accurate and not misleading.
  • Not breach, in any way, the Data Protection Act or any other applicable local, national or international law or regulations.
  • (Without prejudice to the foregoing) not be discriminatory (whether on the grounds of race, sex, sexuality, disability, marital or family status or on any other protected status grounds) or in our reasonable opinion constitute biased or hate speech.
  • Not be defamatory.
  • Not, in our reasonable opinion, be harassing or abusive.
  • Not contain materials which are unlawful or fraudulent, or have any unlawful or fraudulent purpose or effect.
  • Not be used or intended for the purpose of harming or attempting to harm minors in any way.
  • Not contain viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.

8.2 The Visitor will inform the Host as soon as reasonably practicable if it becomes aware that any material supplied by it is in breach of any of the above points and comply with the reasonable directions of the Host with respect to removing such material.

9. Data protection

9.2 Each party will handle any personal data of the other in accordance with the Data Protection Act.

10. Term and termination

10.1 Either party may terminate this agreement immediately at any time by written notice to the other party if:

  1. that other party commits any material breach of its obligations under this agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied; or
  2. that other party:
    • ceases to trade (either in whole, or as to any part or division involved in the performance of this agreement); or
    • becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
    • a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
    • the ability of that party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
    • any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction); or

10.2 On expiry or termination of this agreement:

  1. all provisions of this agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

11. Confidentiality

11.1 The Benchmark Tool does not store any data input by the Visitor on the Site and We do not have access to it. If and to the extent any Confidential Information is passed by either party to the other pursuant to this agreement it will be held by the receiving party in conditions of strict confidence and not disclosed to any person save as required by law or with the prior written consent of the disclosing party. We do use cookies on the Site in accordance with our cookie policy.

12. Notices

12.1 A notice given under this agreement:

  1. shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
  2. shall (if sent to the Host) be sent to the address of the Host given on the Site and if sent to the Visitor shall be sent to the Visitor’s most recent email address given to the Site.

13. Assignment

13.1 The Host may assign or transfer any of its rights or obligations under this agreement to any person operating the Site.

14. Entire agreement

14.1 This Agreement, including the Privacy Policy constitutes the entire agreement between the parties regarding its subject matter and supersedes and replaces any and all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party's only remedies shall be for breach of contract as provided in this Agreement.

15. Third party rights

15.1 The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under this agreement is not subject to the consent of any person who is not a party to this agreement.

15.2 No person has any rights under the Contracts (Rights of Third Parties) Act 1999 in respect of this agreement.

16. Variation and waiver

16.1 A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement.

16.2 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

16.3 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

17. Severance

17.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. Governing law and jurisdiction

18.1 This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.

18.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement which cannot be settled by alternative dispute resolution.