FUNDING

Archived: Partner Saas Agreement

Effective until 22 September 2020

Fluidly is an online service which provides tools including cash flow predictions, automated invoicing procedures, benchmarking performance and record-keeping keeping (the “Service”). Further detail of what is included in the Service is available on our website at https://fluidly.com/ (the “Site”).

This agreement governs the arrangement under which the Accounting Partner, as identified in the Order Form, is permitted to resell Subscriptions to the Service to its clients.

In these Terms and Conditions (“Terms”):

  • Fluidly”, “we”, “us” and “our” means Fluidly Limited, a company incorporated in England and Wales with company number 10402874 and with its registered office at 229-231 High Holborn, London, United Kingdom, WC1V 7DA; 
  • Accounting Partner”, “you” and “your” means the legal entity of the Accounting Partner which is entering into an agreement with Fluidly, to enable that entity to resell the Service to its clients; and
  • Agreement” means these Terms together with the relevant Order Form.

Capitalised terms are defined in clause 19.1 below.

1

Appointment of the Accounting Partner as a reseller of the Service

1.1

In order to facilitate sales of the Service, Fluidly hereby appoints Accounting Partner as a non-exclusive authorised representative to promote, market and obtain sales for the Service in the Territory during the Term, pursuant to the terms of the Agreement.

1.2

Accounting Partner shall not market the Service outside the Territory without Fluidly’s prior written consent but may enter into a Client Agreement with any entity that is based outside the Territory where the relevant Client has contacted Accounting Partner directly, independently and proactively.

1.3

In the Territory, Accounting Partner shall: 

1.3.1 be entitled to describe itself as an “Approved Reseller” of the Service in the Territory but shall not represent itself as an agent of Fluidly for any purpose, nor pledge Fluidly’s credit or give any condition or warranty or make any representation on Fluidly’s behalf or commit Fluidly to any contracts save as authorised herein in respect of Clients;

1.3.2 not during the Term promote, market, nor obtain sales in respect of, any software product which: (i) is capable of replacing the Service for the relevant Client’s business purposes; or (ii) provides substantially the same functionality as the Service; and

1.3.3 not without Fluidly’s prior written consent make any representations, warranties, guarantees or other commitments with respect to the specifications, features or capabilities of the Service which are inconsistent with those contained in the Documentation.

1.4

Accounting Partner shall, in relation to each Client Agreement it enters into with a Client for the purchase of subscriptions to use the Service:

1.4.1 ensure that each such Client Agreement includes (i) a provision that the Client’s access to and use of the Service is subject to the Client’s prior acceptance of the latest version of the Terms of Service and ongoing compliance with the Terms of Service at all times during the term of the applicable Client Agreement, and (ii) a prominent link to the latest version of the Terms of Service;

1.4.2 enforce the terms of each Client Agreement in respect of each Client’s and such Client’s Authorised Users’ compliance with the Terms of Service;

1.4.3 suspend the applicable Client’s use of the Service in accordance with any notice Accounting Partner receives from Fluidly requesting suspension where the Terms of Service provide for such right of suspension; and

1.4.4 terminate the applicable Client’s use of the Service in accordance with any notice Accounting Partner receives from Fluidly requesting termination where the Terms of Service provide for such right of termination.

1.5

Notwithstanding any use of the words “sale”, “re-sell” or similar expression in the Agreement, the Service is licensed, and not sold, and Accounting Partner is only granted the rights set out in clause 1 (in addition to the Accounting Partner’s right to use the Service in accordance with clause 2).

1.6

Accounting Partner shall provide Fluidly with [a copy of] [details (in a format to be notified by Fluidly) of] any Client Agreement which Accounting Partner has entered into (including the Client’s name and applicable Client Charges and duration) within [five (5)] Business Days of executing each such Client Agreement.

1.7

Within [ten (10)] Business Days of Fluidly receiving [a correctly executed Client Agreement and Terms of Service] [full details of the relevant Client Agreement as required by clause 1.6], Fluidly shall provide access to the Service to the relevant Client in accordance with the Terms of Service. 

2

Accounting Partner’s licence to use the Service

2.1

Fluidly hereby grants to Accounting Partner a non-exclusive, non-transferable, non-sublicensable right during the term of each Client Agreement to use the Service solely to provide services to the relevant Client.

2.2

Accounting Partner’s access to and use of the Service shall be subject to the Terms of Service, save that:

2.2.1 the Charges for such access and use shall be as set out in the Order Form of this Agreement;

2.2.2 references to “Your Material” and to information or data shall be regarded as referring to material, information or data relating to the business of the relevant Client only (and not to material, information or data relating to the business of Accounting Partner);

2.2.3 references to “Authorised Users” shall be regarded as referring only to staff engaged by Accounting Partner to provide services to the relevant Client in respect of that Client’s business and information; and

2.2.4 if Accounting Partner wishes to access and use the Service on its own account it must do so under a separate arrangement with Fluidly.

3

Accounting Partner’s obligations

3.1

During the Term, Accounting partner shall:

3.1.1 comply with all Applicable Laws concerning the Service and the Agreement;

3.1.2 not supply the Service to any person knowing that it does not meet that person’s specified requirements;

3.1.3 not alter, obscure, remove, interfere with or add to any of its trade marks, trade names, markings or notices affixed to or contained in the Documentation delivered to Accounting Partner;

3.1.4 promptly submit to Fluidly full written details of any complaints received by Accounting Partner from any third party (including any Client) relating to the Service, together with all relevant information in the possession of Accounting Partner relating to the same; 

3.1.5 inform Fluidly of any material amendment from time to time of any Client Agreement (including in relation to suspension, termination and/or expiry) which affects the provision of the Service by Fluidly; and

3.1.6 ensure that Fluidly is informed promptly of anything of which Accounting Partner becomes aware that may have an adverse impact on the ability of Accounting Partner to fulfil its obligations under the Agreement.

4

Fluidly’s obligations

4.1

Fluidly undertakes to:

4.1.1 comply with all Applicable Laws concerning the Service and the Agreement;

4.1.2 make the Service available Clients (including their Authorised Users) in accordance with the Terms of Service;

4.1.3 make the Service available to Accounting Partner (including its Authorised Users) in accordance with the Terms of Service and clause 2;

4.1.4 provide such information and support as may be reasonably requested by Accounting Partner to enable it to properly and efficiently discharge its duties under the Agreement; 

4.1.5 provide Accounting Partner with access to up-to-date Documentation for Accounting Partner’s use;

4.1.6 promptly submit to Accounting Partner full written details of any complaints by any of Accounting Partner’s Clients relating to the Service, together with all relevant information;

4.1.7 ensure that Accounting Partner is informed promptly of anything of which Fluidly becomes aware that may have an adverse impact on the ability of Fluidly to fulfil its obligations under the Agreement; and

4.1.8 promptly make available to each Client the Terms of Service for acceptance by the Client and notify Accounting Partner of each such acceptance within two (2) Business Days.

5

Hosted environment and demo environment

5.1

Fluidly shall host the Service on servers that it owns or controls (the “Hosted Environment”).

5.2

Fluidly shall also establish and maintain a separate remotely accessible server environment which is for use of the Service by Accounting Partner only for demonstration purposes (the “Demo Environment”) and which shall be kept fully up to date with the current version of the Service in the Hosted Environment. Fluidly shall provide reasonable support for the Demo Environment to ensure it accurately reflects the latest version of the Service.

5.3

Fluidly will use reasonable endeavours to ensure the Hosted Environment and the Demo Environment are provided uninterrupted, timely, secure, and error-free.

6

Records, security and control

6.1

Without limiting the parties’ obligations under clauses 1.6 and 1.7, each party shall: 

6.1.1 maintain a full and accurate record of sales of subscriptions to use the Service, including full details of all Clients, and shall promptly produce such records and any associated materials to the other party on request from time to time; and

6.1.2 regularly meet with the other party to provide updates on sales of the Service.

6.2

Each party shall:

6.2.1 provide the other party with reasonable co-operation and access to information as may be required by the other party in order to perform its obligations under the Agreement;

6.2.2 comply with Applicable Laws in relation to its activities under the Agreement; 

6.2.3 ensure that it does not supply the other party with any materials (including information or data) that:

(a) is or may be in breach of any third party right (including any Intellectual Property Right) under any law or under a contractual or fiduciary relationship; or

(b) is or may be in violation of any Applicable Laws.

6.3

Each Party shall notify the other party as soon as reasonably practicable of any actual or suspected breach:

6.3.1 of any Client Agreement by any Client; and/or 

6.3.2 of the Terms of Service by any Client and/or any Authorised User of that Client,

and unless otherwise agreed between the Parties: (i) Fluidly may enforce its rights under the Terms of Service in relation to any actual breach; and (ii) Accounting Partner may enforce its rights in relation to any actual breach of any Client Agreement.  The parties shall discuss in good faith and use reasonable endeavours to agree a mutually acceptable approach before either party exercises its rights under this clause 6.3. 

6.4

In the event of an actual breach by a Client of a Client Agreement, Accounting Partner shall promptly notify Fluidly and Accounting Partner may: (i) request that Fluidly suspends the Client’s access to the Service immediately; or (ii) immediately terminate the relevant Terms of Service. For the avoidance of doubt and subject to clause 7.2, the Client’s breach of its Client Agreement (including any delay in payment of any charges owed by the applicable Client to Accounting Partner) shall not affect any Resale Fees due from Accounting Partner to Fluidly in respect of that Client.

7

Resale fees and payment terms

7.1

Accounting Partner will in sole discretion determine the price at which it offers subscriptions to the Service to Clients.

7.2

In relation to each Client Agreement, Accounting Partner shall pay fees to Fluidly as set out in the Order Form (“Resale Fees”). However, the Parties may agree in writing to a different level of Resale Fees from time to time. If a Client Agreement has been terminated, no Resale Fees shall be due in respect of that Client from the end of the month in which the termination takes effect.

7.3

Within two (2) Business Days of the end of each month Fluidly shall provide to Accounting Partner a statement setting out the amount of Resale Fees owed to Fluidly in respect of that month, with a draft invoice for such Resale Fees. Accounting Partner shall have a further two (2) Business Days to query the statement provided. If a query is raised by Accounting Partner, Fluidly shall promptly address it, providing supporting evidence and reasonably required. If no query is raised by Accounting Partner during that period, then the draft invoice shall be deemed to be a final invoice.

7.4

Accounting Partner shall pay such invoices in full without deduction or set-off within thirty (30) days of the date that the invoice is deemed to be final. For the avoidance of doubt, the Resale Fees shall be payable notwithstanding any non-payment by the Client under the Client Agreement.

7.5

If any sum payable under the Agreement is in arrears for more than ten (10) Business Days after the due date, other than in relation to the part of the invoice that is the subject of a bona fide dispute between the Parties and has been referred to dispute resolution under clause 16, Fluidly reserves the right without prejudice to any other right or remedy it has under the Agreement or in law to:

7.5.1 charge interest, accruing daily, on the overdue undisputed amount at an annual rate of four percent (4%) above the base rate of Barclays Bank Plc; and/or

7.5.2 where the invoice remains unpaid seven (7) Business Days after deemed receipt by the Accounting Partner of a notice stating the undisputed amount that remains unpaid and requiring the Accounting Partner to make such payment within such period, to suspend performance of its obligations under the Agreement and in relation to the Clients’ access to the Service, or to terminate this Agreement.  

7.6

For the avoidance of doubt, where a sum invoiced is the subject of a bona fide dispute, the Parties shall seek to resolve the dispute in accordance with clause 16, and neither Party shall during the period of such dispute be entitled to suspend or terminate the Agreement in respect of the non-payment.

7.7

Any sums payable by Accounting Partner under this Agreement are exclusive of value added tax or any similar taxes, levies or duties, which shall be added to invoices and payable at the appropriate rate.

8

Intellectual property rights

8.1

The Intellectual Property Rights (including any enhancements and modifications) in its trade marks, the Service and the Documentation are, and shall at all times remain, the property of Fluidly and its licensors.

8.2

Accounting Partner acknowledges and agrees that it shall have no rights to use the Service or Documentation except as expressly set out in the Agreement.

8.3

In order to allow Accounting Partner to make sales of the Service, Fluidly hereby grants to Accounting Partner a licence for the Term in the Territory to:

8.3.1 access and use the Service via the Demo Environment (but not the Hosted Environment) for the purposes of marketing initiatives, including demonstrating and marketing the Service to third parties; 

8.3.2 make and use only such number of copies of the Documentation as is reasonably necessary for the purposes of demonstrating, marketing and selling the Service to third parties (provided that such copies and the media on which they are stored shall be the property of Fluidly and Accounting Partner shall ensure that all such copies bear Fluidly’s proprietary notices).

8.4

Other than the licences expressly granted under this Agreement, neither party grants any licence or makes any assignment of any of its Intellectual Property Rights.

9

Indemnities

9.1

Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party (the “Indemnified Party”) from and against all damages and legal costs finally awarded against the Indemnified Party by a court of competent jurisdiction and/or amounts paid by the Indemnified Party further to a final settlement approved by Indemnifying Party, together with associated legal fees reasonably incurred by the Indemnified Party, as a result of any claim that the use or possession of the material provided to the Indemnified Party by or on behalf of the Indemnifying Party (the “Indemnified Materials”)  in accordance with the terms of the Agreement infringes the Intellectual Property Rights of any third party. 

9.2

The indemnity in clause 9.1 shall not apply to the extent that relevant claim is based on:

9.2.1 a modification of the Service by anyone other than Fluidly; or

9.2.2 the use of the Service in a manner contrary to Terms of Service and/or any instructions given by Fluidly to the Accounting Partner and/or the Client; or

9.2.3 the use of the Service by the Accounting Partner and/or the Client after notice of the alleged or actual infringement from Fluidly or any appropriate authority.

9.3

Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party (including its directors, officers, agents and employees) (the “Indemnified Party”) harmless from any loss, liability, expenses or damages whatsoever (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) arising out of: 

9.3.1 any claim by a third party as a result of the Indemnifying Party’s breach of the Agreement; and

9.3.2 any claim by a third party resulting from the Indemnifying Party’s breach of the Terms of Service or a Client Agreement.

9.4

The Indemnified Party shall, in relation to any claim under this clause 9: 

9.4.1 provide the Indemnifying Party with prompt notice of such claim;

9.4.2 provide information and reasonable co-operation to the Indemnifying Party in the defence and settlement of such claim, at the Indemnifying Party’s expense; 

9.4.3 permit the Indemnifying Party to defend or settle the claim; and

9.4.4 not make any admissions which may be prejudicial to the defence or settlement of any claim without the Indemnifying Party’s prior written consent.

9.5

In the circumstances set out in clause 9.1, and without prejudice to each Party’s obligation to indemnify under that clause, the Indemnifying Party shall have the right (at its sole option) to:

9.5.1 procure for the Indemnified Party the right to continue using the Indemnified Materials or infringing part thereof;

9.5.2 modify or amend the Indemnified Materials or infringing part thereof so that it becomes non-infringing; or

9.5.3 replace the Indemnified Materials or infringing part thereof with for example other software of similar capability.

9.6

If Fluidly is the Indemnifying Party and clauses 9.5.1, 9.5.2 or 9.5.3 are not possible (as determined by Fluidly in its sole discretion), Fluidly may terminate the Agreement by providing written notice to Accounting Partner.

10

Warranty

10.1

Each party warrants to the other party that:

10.1.1 it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement; and

10.1.2 it will carry out its activities in relation to the Agreement in a professional manner and in a way that is not reasonably likely to damage the reputation of the Service or of the other party.

10.2

Fluidly:

10.2.1 warrants that as at the Effective Date, it has adopted procedures to screen the Service for Viruses using up-to-date commercially available anti-Virus software; 

10.2.2 does not warrant that Accounting Partner’s or any Client’s use of the Service will be uninterrupted or error-free;

10.2.3 is not responsible for any failure of the Service to the extent that such failure results from issues with the Client Environment, or from the acts or omissions of Accounting Partner (or its personnel, contractors and/or agents); and

10.2.4 is not responsible 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 Accounting Partner acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

11

Limitation of liability

11.1

Nothing in the Agreement excludes or limits the liability of either party: (i) for death or personal injury caused by the negligence of such party, for fraudulent misrepresentation, or in respect of any other liability which cannot by law be limited or excluded; or (ii) under clauses 1.3.2 and/or 1.4.1; or (iii) in respect of the payment of Resale Fees. 

11.2

Subject to clause 11.1, neither party shall be liable to the other in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, for: (i) any indirect or consequential loss; or (ii) any loss of profit, business, anticipated savings, loss of or corruption of data, damage to reputation, depletion of goodwill or otherwise, in each case whether direct or indirect, which arise out of or in connection with the Agreement.

11.3

Except as expressly set out in the Agreement, all warranties, representations, conditions and all other terms of any kind implied by statute or common law are excluded from the Agreement to the fullest extent permitted by Applicable Laws.

11.4

Subject to clauses 11.1, 11.2, 11.3 and 11.5, the total liability of each party arising out of or in connection with the Agreement, whether under contract, tort (including negligence), breach of statutory duty or otherwise, shall not, in respect of all events occurring in each Contract Year, exceed one hundred and twenty five percent (125%) of the Resale Fees paid or payable by Accounting Partner to Fluidly in respect of such Contract Year. 

11.5

Subject to clauses 11.1, 11.2 and 11.3, the total liability of each party to the other under clause 9, 12 or 17 of the Agreement (whether under contract, tort (including negligence), breach of statutory duty or otherwise) shall not exceed one million pound sterling (£1,000,000) per claim or series of related claims.

12

Confidential information

12.1

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by clause 12.2 or our Privacy Policy.

12.2

The obligations in clause 12.1 shall not apply to any information which is already in the public domain. In addition, each party may disclose the other party’s confidential information:

12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights, providing the Service or carrying out its obligations under or in connection with these Terms (and each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12); and

12.2.2 as may be required by Applicable Laws, a court of competent jurisdiction or any governmental or regulatory authority.

12.3

Neither party shall make any press release or public announcement in any form regarding the Services or the Agreement without the express prior written consent of the other Party, having first given the other party a reasonable opportunity to review the full form of such release or announcement.

13

Term and termination

13.1

The Agreement shall commence on the Effective Date and continue for the Initial Term and will then automatically renew for successive Renewal Terms unless: (a) either party gives the other party written notice of non-renewal at least sixty (60) days prior to the end of the then current Initial Term or Renewal Term (as applicable); or (b) the Agreement is otherwise terminated by written notification in accordance with the Agreement. 

13.2

Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

13.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default 15 days after being given you notice requesting such payment;

13.2.2 the other party commits a material breach of these Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

13.2.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

13.2.4 the other party has a receiver, administrator, administrative receiver or manager appointed over the whole or any part of its assets, becomes insolvent, compounds or makes any arrangement with its creditors, commits any act of bankruptcy, is wound up or goes into liquidation; or

13.2.5 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.3.

14

Consequences of termination

14.1

Termination of this Agreement howsoever arising shall be without prejudice to the rights and duties of either party accrued prior to termination.

14.2

Upon expiry or termination of the Agreement, howsoever arising, Accounting Partner shall immediately:

14.2.1 cease to resell or market the Service and any rights or licences granted to Accounting Partner in clauses 1.1, 2 and 8.3 shall terminate; and

14.2.2 subject to clause 14.4, return (or destroy, at Fluidly’s election) to Fluidly all copies of the Documentation any other Fluidly materials in Accounting Partner’s possession (including any confidential information).

14.3

Upon expiry or termination of the Agreement howsoever arising:

14.3.1 each Client Agreement shall continue until the end of its current term, at which point it shall terminate (and each party shall take such actions as are reasonably necessary in order to effect such termination);

14.3.2 as such, clause 7 shall continue to apply until the expiry or termination of the last Client Agreement;

14.3.3 Fluidly shall, unless the Agreement is terminated pursuant to clause 9.6 and, provided that Accounting Partner continues to pay the relevant Resale Fees and complies with the terms of clauses 6.3 and 6.4, continue to provide all existing Clients with access to the Service until the end of the current term of that Client’s Client Agreement; and

14.4.4 Fluidly shall, subject to clause 14.4 and any extension required in the performance of Fluidly’s obligations under 14.3.3, return (or destroy, at Accounting Partner’s election) to Accounting Partner all copies of Accounting Partner’s confidential information in Fluidly’s possession.

14.4

Termination of the Agreement for any reason will not affect:

14.4.1 any accrued rights or liabilities which either Party may have by the time termination takes effect; or

14.4.2 the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after termination. Without prejudice to the foregoing, clauses 7, 9, 11, 12 and 14 to 18.1 inclusive shall survive termination to the extent necessary to give effect to clause 14.3.

15

Data protection

15.1

Fluidly shall provide the Service in accordance with the Privacy Policy.

15.2

Where either party discloses to the other party personal data relating to its staff or Clients, the other Party will become a controller in respect of that personal data to the extent that it then processes it, including any storage, sharing or further use of that personal data (and for this purpose the terms “controller”, “personal data” and “process” shall have the meaning given to such terms in Data Protection Laws). 

15.3

Each party is separately responsible for its own respective compliance with the Data Protection Laws in relation to the processing of that personal data, including as to the provision of notices and the gathering of necessary consents (or satisfaction of other relevant legal bases) from the Clients or staff as are necessary to process their personal data in compliance with the Data Protection Laws.

15.4

In relation to any personal data to which a party has access in the course of its activities in relation to the Agreement or any Client Agreement, any processing of this data will be supervised and governed by such party’s own privacy policy.

15.5

Neither party shall by any act or omission, put the other party in breach of any Data Protection Laws and each party shall do and execute, or arrange to be done and executed each act, document and thing necessary or desirable to ensure that it does not put the other party in breach of any such Data Protection Laws.

16

Dispute resolution

16.1

Any dispute or difference of opinion (a “Dispute”) arising between Fluidly and Accounting Partner in respect of or arising out of the Agreement shall be dealt with in accordance with this clause 16.

16.2

The Parties will attempt in good faith to negotiate a settlement of the Dispute.

16.3

In the first instance, the Representative of each party shall each use their reasonable endeavours to resolve the Dispute.  If the Dispute cannot be resolved by these Representatives, it shall be referred to the executive team of each party who shall each use their reasonable endeavours to resolve the Dispute.

16.3

In the event that a Dispute cannot be resolved by negotiation as referred to in clauses 16.2 and 16.3 within twenty (20) days of the Dispute arising, either party may seek all available remedies at law or equity.

16.4

In the first instance, the Representative of each party shall each use their reasonable endeavours to resolve the Dispute.  If the Dispute cannot be resolved by these Representatives, it shall be referred to the executive team of each party who shall each use their reasonable endeavours to resolve the Dispute.

16.5

For the avoidance of doubt, nothing in this clause shall prevent or delay either party from seeking injunctive relief in any court or from issuing proceedings to recover any undisputed debt.

17

General

17.1

During the Term of the Agreement, and for a period of one hundred and eighty (180) days from its termination for any reason, neither party shall not (and shall procure that its Affiliates do not) induce or attempt to induce (directly or indirectly) any employee or contractor of the other party to leave that other party’s employment or cease providing services to the other party.

17.2

Neither party shall be liable under this Agreement for any failure or delay in carrying out our obligations, to the extent that the failure or delay is caused by events or circumstances beyond its reasonable control.

17.3

If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.

17.4

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

17.5

No waiver in connection with the Agreement shall, in any event, be effective unless it is in writing, refers expressly to this clause, is duly signed by or on behalf of the party granting it and is communicated to the other party in accordance with clause 17.8.

17.6

Neither Party may assign, novate, sub-contract or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.

17.7

Save as expressly provided in the Agreement, no amendment or variation of the Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the parties.

17.8

Subject to clause 17.9 any notice given under this Agreement by either party to the other must be sent by email: (i) to us at support@fluidly.com or any other email address we notify to you; and (ii) to you at the email address set out on the Order Form. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender) provided that no delivery failure message is received by the sender.

17.9

Notice in respect of the service of any proceedings or any documents in any legal action in connection with this Agreement or your use of the Service shall be in writing and be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the relevant address as set out on the Order Form, or such other address as we or you may have notified to the other for the purposes of this clause 17.9. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

17.10

The Agreement constitutes the entire agreement and understanding between the parties and supersedes all proposals or prior agreements, arrangements and undertakings between the parties relating to the subject matter of the Agreement.

17.11

The parties undertake that they have not entered into the Agreement in reliance on any representation, promise or statement which is not expressly set out in the Agreement. Except as expressly provided in the Agreement all conditions, warranties, stipulations and other statements whatsoever that would otherwise be implied or imposed by statute, at common law, or otherwise howsoever are excluded to the fullest extent permitted by law.

17.12

No one other than a party to these Terms shall have any right to enforce any of its terms.

17.13

This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts, each of which, when executed and delivered, shall be an original and all the counterparts together shall constitute one and the same instrument which shall only be deemed executed when counterparts executed by both parties are delivered.

18

Governing law and jurisdiction

18.1

The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales.

18.2

The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with the Agreement, its subject matter or its formation (including non-contractual disputes or claims).

19

Definitions and interpretation

19.1

In these Terms and Conditions, the following expressions shall have the following meanings:

“Accounting Partner” means the Party identified as the ‘Accounting Partner’ in the Order Form; 
“Affiliate” means, in respect of a company or other business entity, any company or other business entity Controlled by, Controlling, or under the common Control of that company or other business entity;
“Agreement” means these Terms and Conditions and all documents referred to in them, the Order Form and such amendments in writing as may subsequently be agreed between the Parties;
“Applicable Laws” all applicable laws, statutes, regulations and mandatory codes of practice from time to time in force;
“Authorised Person” means an employee, agent, consultant and/or subcontractor of the Accounting Partner who is authorised to use the Service by the Accounting Partner under, and in accordance with, the applicable Terms of Service;
“Business Days” means any day which is not a Saturday, Sunday or public or bank holiday in England;
“Client”  means a third party which is a client of Accounting Partner and has entered into a Client Agreement;
“Client Agreement” means an agreement relating to the Client’s access to and use of the Service subject to the Terms of Service made between a Client and either Accounting Partner or Fluidly; 
“Client Charges” means the charges payable by a Client to Accounting Partner or Fluidly in accordance with the applicable Client Agreement;
“Client Environment” means the Client’s, sites, infrastructure, facilities, systems, telephony, software, operating systems and any other Client-managed or controlled environment which is relevant to the installation, integration, use or running of the Service;
“Contract Year” means each 12-month period commencing on the Effective Date or an anniversary thereof; 
“Control” means the direct or indirect power to direct or cause the direction of the management and policies of a company or other business entity, whether through ownership of fifty percent (50%) or more of the voting interest, by contract, or otherwise (and “Controlled” and “Controlling” shall be construed accordingly);
“Data Protection Laws” means:

  • Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) including the recitals (the “GDPR”) and any equivalent or implementing legislation; and
  • all other applicable laws (including judgments of any relevant court of law) and regulations relating to the processing of personal data, data privacy, electronic communications, marketing and/or data security,

in each case as from time to time in force and as from time to time amended, extended, consolidated, re-enacted, replaced or otherwise incorporated into law, and all subordinate legislation made under any of the above; 

“Demo Environment” has the meaning set out in clause 5.2;
“Documentation” means any documentation issued or supplied by Fluidly to Accounting Partner relating to the Service, including instructions, technical specifications, supporting documents, marketing and sales documents, in whatever form or format, as updated from time to time; 
“Effective Date” means the date identified as the ‘Effective Date’ on the Order Form;
“Hosted Environment” has the meaning set out in clause 5.1;
“Initial Term” means the period identified as the “Initial Term” on the Order Form;
“Intellectual Property Rights” means all intellectual property rights (whether or not any of these rights are registered, and including applications and the right to apply for registration of any such rights), including patents, supplementary protection certificates, petty patents, utility models, trade marks, database rights, rights in designs, copyrights (including rights in computer software), rights in the design patterns and topography rights  and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world, in each case for their full term, and together with any renewals or extensions;
“Order Form” means the document headed ‘Order Form’ and executed by the Parties which incorporates and is subject to these Terms and Conditions;
“Privacy Policy” the privacy policy available at https://fluidly.com/privacy-policy/ as we may update it from time to time by written notice to you;
“Renewal Term” means the period identified as the “Renewal Term” on the Order Form;
“Representative” means, in respect of each Party, the person identified as such on the Order Form;
“Resale Fees” means the fees charged by Fluidly to Accounting Partner in respect of its distribution to Clients of the subscriptions to use the Service;
“Service” means the online platform operated by Fluidly via the Site which provides services including cash flow predictions, automated invoicing procedures, benchmarking performance and keeping records;
“Site” means the website https://fluidly.com/;
“Term” means the Initial Term and each Renewal Term subject to any earlier termination in accordance with the Agreement;
Terms and Conditions” means these terms and conditions (including the Schedules);
“Terms of Service” means the Terms of Service available on the Site (as may be amended by Fluidly from time to time in accordance with the Terms of Service);
“Territory” means the United Kingdom;
“Virus” means any thing or device (including any software, code, file or programme) which is designed to prevent, impair or otherwise adversely affect the operation of any software, hardware, network or service, or adversely affect access to data, and including worms, trojan horses, viruses and other similar things or devices.

19.2

Words in the singular include the plural and in the plural, include the singular. 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 in force made under it. Except where a contrary intention appears, a reference to a clause, schedule or annex is a reference to a clause of, or schedule or annex to, these Terms and Conditions. Clause headings do not affect the interpretation of these Terms and Conditions. Words introduced by the word “including”, “for example”, or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words.

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