FUNDING

Archived: Fluidly Referral Agreement

Effective until 22 September 2020

In this Agreement (“Agreement”):

  • Fluidly” means Fluidly Limited, a company incorporated in England and Wales with company number 10402874 and with its registered office at 20-22, Wenlock Road, London, N1 7GU, England;
  • Host” means the legal entity of the Accounting Partner which is entering into an agreement with Fluidly,

each being a “Party” and collectively the “Parties”.

BACKGROUND

(A) Fluidly provides a Widget which can be integrated into the Host Website to provide functionality such as displaying Funding Products which End Users may be eligible for.

(B) Host wishes to install the Widget on the Host Website.

(C) The Parties have agreed a revenue sharing arrangement in relation to End Users who are Approved for Funding Products via the Widget.

(D) The Parties have entered into this Agreement in accordance with the terms and conditions set out below.

(E) Defined terms used in this Agreement are set out in Schedule 1.

IT IS AGREED

1

COMMISSION AND PAYMENT

1.1

Host Commission. Subject to the remainder of Clause 1 the Host will be entitled to a fixed percentage of the value of the Fluidly Commission in relation to the first Drawdown of the relevant Funding Product (the “Host Commission”). This fixed percentage will be confirmed in writing by Fluidly to the Host and may be changed from time to time at the sole discretion of Fluidly as long as the Host is notified in writing.

1.2

Fluidly Commission. The Host will not be entitled to receive the Host Commission until Fluidly has received the Fluidly Commission in full from the relevant Lender.

1.3

Time limit. The Host will not be entitled to receive the Host Commission if the first Drawdown occurs: (a) more than 3 months after the date that the End User was first Approved; and/or (b) after the date of termination of this Agreement.

1.4

Subsequent Drawdowns. If Fluidly receives Fluidly Commission based on more than one Drawdown over the duration of the same Funding Product the Host Commission will be calculated based on the Fluidly Commission for the first Drawdown only and the Host shall not be entitled to receive Host Commission based on the second or subsequent occurrences of a Drawdown for the same Funding Product.

1.5

Clawbacks. If Fluidly is obliged to repay any Fluidly Commission to a Lender (a “Clawback”) Fluidly is entitled to deduct and/or set off the equivalent value from any future Host Commission paid by Fluidly.

1.6

Existing Fluidly clients. Fluidly is not obliged to pay Host Commission on any Drawdowns by End Users who already have an account with Fluidly as at the date that they are first referred to Fluidly by the Host via the Widget.

1.7

Tracking. Fluidly will provide a mechanism to the Host (including a URL and/or digital token) which will allow the Host to monitor the number of End Users accessing the Widget. Additionally, Fluidly will monitor the volume and value of all Fluidly Commission and applicable Host Commission.

1.8

Monthly notification. On or before the 15th day of each calendar month Fluidly will notify the Host of all Host Commission which the Host is entitled to invoice Fluidly for in relation to the previous month (the “Monthly Notification”).

1.9

Invoicing. Upon receipt of a Monthly Notification from Fluidly, the Host will be entitled to invoice Fluidly for the Host Commission.

1.10

Payment. Upon receipt of a valid invoice from the Host for an undisputed Host Commission, Fluidly will pay the Host Commission to the Host within 30 calendar days of receipt of such invoice.

2

TERM AND TERMINATION

2.1

Term. This Agreement will start on the Effective Date and will continue until terminated in accordance with its terms.

2.2

Termination without cause. Either Party is entitled to terminate this Agreement by giving at least 1 month’s prior written notice to the other Party of its intention to terminate this Agreement.

2.3

Termination. Either Party may terminate this Agreement immediately at any time by giving prior written notice to the other Party if:

2.3.1. the other Party commits a material breach of this Agreement and, if capable of remedy, fails to remedy such material breach within 30 days of receiving a notice from the first Party, detailing the material breach and requiring its remedy; and/or

2.3.2. the other Party becomes insolvent in accordance with the provisions of the applicable insolvency legislation or is otherwise unable to pay its debts as they fall due.

2.4

Post-termination obligations. If this Agreement is terminated:

2.4.1. the Host must immediately uninstall the Widget from the Host Website; and

2.4.2. subject to Clause 1, Fluidly shall pay outstanding undisputed Host Commissions which were payable at the date of termination of the Agreement.

3

FLUIDLY OBLIGATIONS

3.1

Access. In accordance with Clause 7, Fluidly will provide the Host with access to the Widget (including files necessary for the successful installation of the Widget by the Host).

3.2

Co-operation. Fluidly will use reasonable endeavours to assist the Host in the Host’s installation of the Widget onto the Host Website.

3.3

Technical issues. Fluidly will not be responsible for any errors, faults or delays in the functionality of the Widget which are caused by technical issues with the Host Website and/or any third party software or hardware.

3.4

Funding Products. Fluidly is not responsible for any Funding Products displayed via the Widget (which are provided by Lenders).

3.5

Publicity. For the duration of this Agreement only, either Party shall be entitled to reference the name and logo of the other Party on its respective promotional materials (including its website). If any public announcement is made in relation to this Agreement the form and content of such public announcement shall first be agreed in writing by the Parties (such agreement not to be unreasonably withheld or delayed). If a Party proposes a public announcement to the other Party but has not received a response within 3 business days, approval is deemed to be given in relation to the proposed public announcement.

4

HOST OBLIGATIONS

4.1

Installation. The Host will (at Host’s own cost) use all reasonable endeavours to install the Widget on the Host Website (in accordance with any technical documentation made available by Fluidly from time to time).d on our Site in the description of your subscription type.

4.2

Viruses. Host acknowledges that while Fluidly uses anti-virus software in accordance with good industry practice, Fluidly does not guarantee that the Widget is entirely free from viruses. The Host is responsible for the proper implementation and maintenance of its own anti-virus software and other relevant security measures.

4.3

No tampering. Host will not copy, modify, adapt, develop, create any derivative work of, reverse engineer, decompile, or disassemble, the Widget, or carry out any act otherwise restricted by copyright or other Intellectual Property Rights except and only to the extent that it is expressly permitted by applicable law.

4.4

No sharing. Host will not sub-license, rent, sell, lease, distribute, transfer, transmit, assign or sub-license any of its licence rights granted to it under this Agreement, to any other person or entity.

4.5

Reputation. Host will not do anything to bring Fluidly into disrepute or otherwise damage the brand or reputation of Fluidly.

4.6

Acknowledgement. Host acknowledges that except as expressly stated otherwise in this Agreement and/or as otherwise required by applicable law, the Widget is provided on an “as is” and “as available” basis, and in no event does Fluidly warrant that the Widget will be error-free or uninterrupted.

4.7

Representations. The Host will not make or give any representations, warranties or other promises concerning Fluidly or any Lender without Fluidly’s prior written consent.

5.0

LIABILITY

5.1

Unlimited liability. Neither Party excludes or in any way limits its liability:

5.1.1. for fraud or fraudulent misrepresentation;

5.1.2. for death or personal injury caused by its negligence; and/or

5.1.3. to the extent such liability may not be excluded or limited as a matter of applicable law.

5.2

Exclusions. Subject to Clause 5.1, Fluidly shall not be liable to Host under or in connection with this Agreement for any and all of the following, howsoever arising and whether foreseeable or in the contemplation of the Parties, and whether arising out of breach of contract (including intentional breach or non-performance), in tort (including negligence), for breach of statutory duty or misrepresentation, under an indemnity or otherwise:

5.2.1. loss of actual or anticipated profits;

5.2.2. loss of revenue;

5.2.3. loss of sales, business or business opportunity;

5.2.4. loss of agreements or contracts;

5.2.5. wasted expenditure

5.2.6. anticipated savings;

5.2.7. damage to reputation or loss of goodwill;

5.2.8. costs of enforcing this Agreement;

5.2.9. loss of, damage to or corruption of data;

in each case, whether arising directly or indirectly; and/or

5.2.10. indirect or consequential loss of any kind.

5.3

Liability cap. Subject to Clauses 5.1 and 5.2 Fluidly’s aggregate liability to Host for any loss or damage arising (directly or indirectly) out of or in connection with this Agreement whether in contract (including intentional breach or non-performance) or tort (including negligence), for breach of statutory duty or misrepresentation, under an indemnity or otherwise shall not exceed in respect of any and all events occurring during any Contract Year an amount equal to one hundred per cent (100%) of the total Host Commission paid or payable by Fluidly to Host in such Contract Year. “Contract Year” means each successive 12-month period commencing on, or on any anniversary of, the Effective Date.

6

CONFIDENTIALITY

6.1

Acknowledgment. Each of the Parties recognises that in the course of negotiating and/or performing this Agreement it may receive Confidential Information belonging or relating to the other Party.

6.2

Restrictions. Subject to Clauses 6.3 and 6.4, each Party agrees in relation to the Confidential Information relating to the other Party:

6.2.1. not to use such Confidential Information for any purpose other than the purpose for which it is made available under this Agreement;

6.2.2. not to disclose such Confidential Information except to such of its employees and permitted sub-contractors who need to know such Confidential Information for the purposes of performing its obligations, and/or exercising its rights, under this Agreement provided that it notifies any such employee or sub-contractor of the confidential nature of the information before disclosure and is responsible for their compliance with the confidentiality obligations in this Clause 6; and

6.2.3. to use reasonable care (and in any event not less than the care which it uses to protect its own Confidential Information) to keep, and to ensure that its employees and sub-contractors keep, all Confidential Information confidential.

6.3

Exceptions. The obligations in this Clause 6 shall not apply in relation to:

6.3.1. information which is or becomes public knowledge other than as a result of a breach of this Agreement or any other duty of confidentiality; or

6.3.2. information which the Party using or disclosing such information: (a) knew before it was first disclosed to it by or on behalf of the other Party, and in respect of which the Party using or disclosing such information was not under any other duty of confidentiality; or (b) received from a third party entitle to disclose the same.

6.4

Permitted disclosure. Each Party shall be entitled to disclose Confidential Information to the extent it is required to do so:

6.4.1. by any applicable law or by a court, arbitral or administrative tribunal; or

6.4.2. by any regulatory body (including any investment exchange),

provided that, to the extent it is legally permitted to do so, it gives the other Party as much prior notice of such disclosure as possible and takes into account any reasonable requests of the other Party in relation to the form and content of such disclosure; or

6.4.3. in order to give proper instructions to any professional adviser of such Party who has an obligation to keep such Confidential Information confidential.

6.5

Post termination. On expiry or termination for any reason of this Agreement, each Party shall return to the other Party, or destroy, any and all documents and materials in its possession or control which contain or reflect any Confidential Information relating to the other Party, and erase (without possibility of reconstitution) any Confidential Information relating to the other Party which it has stored in electronic form. Each Party may require the other to certify its compliance with this Clause 6.5. Nothing in this Agreement shall require any Party to return or destroy any document, material or record which it is required to retain by applicable law or to satisfy the requirements of any relevant regulator. This Clause 6 shall survive the expiry or termination for any reason of this Agreement.

7

Data Protection & Data Processing

7.1

Ownership of Widget. Fluidly (and Fluidly’s licensors, as applicable) own all Intellectual Property Rights in the Widget. Host acknowledges that Fluidly shall own all Intellectual Property rights in any data which is entered by an End User directly into and/or via the Widget.

7.2

Ownership in Fluidly Background IPR. Fluidly (and Fluidly’s licensors, as applicable) will continue to own all Intellectual Property Rights in the Fluidly Background IPR, including any amendments, modifications, and derivative works relating to Fluidly Background IPR.

7.3

Ownership in Host Background IPR. Host (and Host’s licensors, as applicable) will continue to own all Intellectual Property Rights in the Host Background IPR, including any amendments, modifications, and derivative works relating to Host Background IPR.

7.4

Licence to install Widget. Fluidly hereby grants to Host a non-exclusive, revocable, non-transferable licence for the duration of this Agreement only to install and display the Widget on the Host Website.

7.5

Third party IPR indemnity. Subject to Clause 7.6 Fluidly will indemnify Host from and against claims or allegations by a third party alleging that use of any of the Widget by Host in accordance with this Agreement infringes Intellectual Property Rights of a third party (each a “Third Party IPR Claim”).

7.6

The Host shall: (a) promptly give Fluidly written notice of any Third Party IPR Claim of which the Host becomes aware; (b) allow Fluidly to have conduct of and/or to settle any negotiations and/or proceedings in relation to any Third Party IPR Claim; (c) not make any admission of liability, agreement or compromise in relation to any Third Party IPR Claim without the prior written consent of Fluidly (such consent not to be unreasonably withheld, conditioned or delayed); and (d) give Fluidly such information and assistance in relation to the negotiations and proceedings in relation to any Third Party IPR Claim as is reasonably requested by Fluidly. The Host shall take reasonable steps to mitigate its loss arising as a consequence of or in connection with any Third Party IPR Claim.

8

DATA PROTECTION

8.1

Personal Data. To the extent that any personal data is entered into the Widget by an End User, such personal data will not be accessed, accessible or processed by the Host.

8.2

Data Controller. Fluidly is the data controller in relation to any personal data entered into the Widget by an End User.

9

GENERAL

9.1

Costs. Each Party shall bear its own costs and expenses incurred or to be incurred in connection with entering into this Agreement.

9.2

Force majeure. No Party shall have any liability under this Agreement for any delay or non-performance of its obligations under this Agreement arising from any event or occurrence beyond its reasonable control.

9.3

Notices. All communications and notices (whether legal or otherwise) concerning, arising under or in connection with this Agreement shall be: (a) in writing; and (b) either delivered personally, sent by first class recorded post, or sent by e-mail. Notices shall be sent for the attention of:

Fluidly representative: Caroline Plumb (Email: info@fluidly.com)

Host representative: To the individual confirming acceptance of this Agreement

Notices shall be deemed to have been received: (a) if delivered personally, when left at the address of the other Party; (b) if sent by first class recorded post, at 09:00 on the second business day after posting; or (c) if sent by e-mail, on the date that the email is successfully sent (provided that no automated bounce back message is received).

Assignment. Host must not sub-license or transfer in any way any of its rights, liabilities and/or obligations under this Agreement on a temporary or permanent basis to any third party without the prior written consent of Fluidly such consent not be to unreasonably withheld or delayed.

No partnership or agency. Nothing in this Agreement shall be construed as constituting or evidencing any partnership, contract of employment or joint venture of any kind between the Parties. No Party shall have authority to make any representation for or act as agent for or in the name or on behalf of another Party in any way.

Severance. If and to the extent that any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction or agreed by the Parties to be invalid, unenforceable or illegal, that provision shall be deemed to be deleted and the other provisions shall remain unaffected and in full force.

Counterparts. This Agreement may be executed in any number of counterparts and by different Parties on separate counterparts, each of which shall be an original and all of which shall together constitute a single agreement. For the avoidance of doubt, this Agreement may be executed using electronic signatures.

Variation. No variation of this Agreement shall be valid unless recorded in writing and signed by or on behalf of each of the Parties.

No waiver. No forbearance or delay by any Party in exercising or enforcing any right (and/or the continued performance of this Agreement) shall prejudice or restrict the rights of that Party, and no waiver of any right or of any breach of any contractual term shall be deemed to be a waiver of any other right or other breach. No single or partial exercise of any right or remedy shall restrict the further exercise of that or any other right or remedy. Except as provided in this Clause 9.9 and Clause 9.13, the rights and remedies provided in this Agreement are in addition to and not exclusive of any right or remedy provided by law.

Third party rights. No term of this Agreement is intended to confer a benefit on or to be enforceable by any person who is not a Party to this Agreement (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).

Entire agreement. This Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreement between the Parties relating to any of such subject matter. Each Party acknowledges and agrees that in entering into this Agreement, all statements, representations, warranties and undertakings on which it relies are incorporated into this Agreement and it does not rely on (and shall have no remedy in respect of) any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether Party to this Agreement or not) which is not expressly set out in this Agreement. The only remedy available to each Party for breach of this Agreement shall be for breach of contract under the terms of this Agreement.

Injunctive Relief. Each Party recognises that the other Party’s business relies upon the protection of its Intellectual Property Rights and/or Confidential Information. In the event of a breach or threatened breach of its Intellectual Property Rights or Confidential Information, the other Party may be caused irreparable harm for which damages alone would not be an adequate remedy. The other Party may therefore, in addition to any other remedies available be entitled to, seek injunctive relief, specific performance or similar equitable relief to prevent any actual or threatened breach of its Intellectual Property Rights or Confidential Information. The prevailing Party shall be entitled to recover all costs and expenses, including reasonable legal fees incurred because of any such legal action.

Governing law and jurisdiction. This Agreement (and any non-contractual obligations arising out of or in connection with it and any claim or dispute in relation to its formation) shall be governed by and interpreted in accordance with English law. Each Party irrevocably submits to the exclusive jurisdiction of the English courts over any claim or matter arising out of, under or in connection with this Agreement (and any non-contractual obligations arising out of or in connection with it and any claim or dispute in relation to its formation).

SCHEDULE 1: DEFINITIONS

1

List of Definitions. In this Agreement the following words and expressions have the following meanings:

“Agreement” means this agreement, as amended from time to time in accordance with its terms, including all Schedules;

“Approved” means when an End User takes out a Funding Product from the Lender (and the Lender has formally communicated its confirmation of approval to that End User);

“Clawback” has the meaning set out in Clause 1.5.

“Confidential Information” means in relation to each Party all information which is not in the public domain and which belongs or relates to that Party or its business or to any other member of that Party’s Group or its business, including information relating to any of: (a) its customers, suppliers, financial information, advertising and promotional materials; (b) its products, services, processes, strategies or developments; (c) intellectual property, trade secrets (including trade secrets as defined by the EU Trade Secrets Directive EU 2016/943) and know-how; (d) market share, market research reports and surveys; (e) personnel, agents and third party intermediaries; and (f) future projects, business plans, budgets, commercial relationships and negotiations, existing in any form, whether or not marked “confidential”, and all other information clearly designated as “confidential”;

“Drawdown” means when an End User who has been Approved has withdrawn funds made available under a Funding Product;

“Effective Date” means the earlier of either: (a) the date of execution of this Agreement by both Parties; or (b) the date that the Widget is installed by the Host on the Host Website;

“End User” means the users of the Host Website;

“Fluidly Background IPR” means any Intellectual Property Rights created and/or owned by Fluidly (or Fluidly’s licensors, as applicable) which: (a) existed prior to the date of this Agreement; or (b) were created and/or developed by or on behalf of Fluidly independently of this Agreement;

“Fluidly Commission” means a commission which is paid by the Lender to Fluidly under a separate agreement;

“Funding Product” means a loan and/or funding-related product or service which is offered by a Lender and displayed to End Users via the Widget;

“Host Background IPR” means any Intellectual Property Rights created and/or owned by Host (or Host’s licensors, as applicable) which: (a) existed prior to the date of this Agreement; or (b) were created and/or developed by or on behalf of Host independently of this Agreement;

“Host Commission” has the meaning set out in Clause 1.1;

“Host Website” means the commercial website owned and/or operated by the Host and for the avoidance of doubt includes any apps or other digital platforms owned and/or operated by the Host;

“Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, moral rights, database rights, trade marks and trade names, rights to goodwill and to sue for passing off, rights in designs, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications (and rights to apply) for, and renewals and extensions of and rights to claim priority from such rights and all similar or equivalent rights and forms of protection which subsist or will subsist now or in the future in any part of the world;

“Lender” means the third party who offers a Funding Product;

“Monthly Notification” has the meaning set out in Clause 1.8;

“Widget” means the Funding Widget software made available by Fluidly under this Agreement which: (a) allows End Users to view Funding Products which they may be eligible for; and (b) allows End Users to apply to be Approved for such Funding Products;

2

Interpretation. In this Agreement: (a) a reference to a Party is to a party to this Agreement and includes that party’s personal representatives, successors and permitted assignees; (b) a reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law; (c) any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, consolidated, re-enacted or replaced; (d) any words introduced by the word “including” or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words; (e) writing includes email to the designated email addresses notified by the recipient party to the notifying party from time to time; (f) the headings and sub-headings in this Agreement are included for convenience only and are not intended to affect the interpretation of this Agreement.

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