FUNDING

Fluidly Terms of Service for Businesses

Welcome to Fluidly. We provide an online service which provides tools including cash flow predictions, automated invoicing procedures, benchmarking performance, record-keeping, assessment of your need for funding and such other tools and services as we may make available to you from time to time (“Services”). We will make you aware of any additional terms that apply to any other Service. Further details of the Services are available on our website at https://fluidly.com/ (the “Site”).

Additional capitalised terms used in the Terms are defined in clause 13.1 below.

Any person accepting the Terms on your behalf warrants to us that they have:

  • the authority to act on your behalf;
  • read and understood the Terms and our Privacy Policy. 

The Terms create a legally binding agreement between you and us and apply every time you use the Services. If you click online to indicate your acceptance of the Terms, make payment based on an Order that references the Terms, or continue to use the Services, you have agreed to the Terms. If and to the extent there is a conflict between the Order and these Terms, these Terms will take precedence.

We do not accept any other terms or conditions that you attempt to impose on us including those associated with any purchase order you issue. Such other terms and conditions will not apply to your Order.

1

Use of the services

1.1

We grant to you a non-exclusive, non-transferable, non-sublicensable right during your Subscription Term for you and your Authorised Users to:

1.1.1 use the Services; and

1.1.2 copy, download and/or export in CSV format from the Site all or part of the Deliverables,

for your internal business purposes only in accordance with the Terms.

2

Your obligations

2.1

You shall 

2.1.1 ensure that each of your Authorised Users comply with the Terms;

2.1.2 cooperate with us in all matters relating to the Services, including by promptly providing us with all information we reasonably request in connection with the Services;

2.1.3 ensure that you have and maintain all licences, consents and permissions necessary for the receipt of the Services;

2.1.4 use the Services in compliance with all Applicable Laws;

2.1.5 ensure any information or data you or your Authorised Users provide to us (either directly or through any third party accounting software or online platform) is accurate, and is not offensive, or otherwise unlawful or objectionable and that our use of such information or data does not infringe applicable law or the Intellectual Property Rights or any other rights of any third party;

2.1.6 prevent and take prompt remedial action against, any unauthorised access to or use of the Services, including ensuring that all credentials required to access the Services are kept secure and confidential; and 

2.1.7 notify us promptly in the event of any such unauthorised access or use of the Services using your access credentials.

2.2

You shall not and shall not permit any other person to:

2.2.1 attempt to copy, modify, or distribute any part of the Services, unless expressly permitted by Applicable Laws or under the Terms;

2.2.2 access, store, distribute or transmit any Virus at any time when accessing and/or using the Services; or

2.2.3 access all or any part of the Services in order to build a product or service which competes with the Services or to provide services to a third party.

2.3

We reserve the right to disable your and/or any of your Authorised Users’ access to the Services if you and/or any of your Authorised Users breach the Terms.  Any suspension will not prevent us from terminating your Subscription at a later date.

3

Our obligations

3.1

We shall:

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

3.1.2 make the Services available to you (including your Authorised Users) in accordance with the Terms in all material respects; and

3.1.3 provide you with access to up-to-date Documentation for your use.

3.2

We:

3.2.1 warrant that as at the Effective Date, we have adopted industry-standard and commercially available anti-Virus software; 

3.2.2 are not responsible for any failure of or delay in providing the Services to the extent that such failure results from your acts or omissions (or those of your personnel, client(s), contractors and/or agents).

4

Charges and payment

4.1

You shall pay the Charges (if any) set out in your Order on each monthly anniversary of your Subscription Start Date using your Payment Method. Charges are exclusive of VAT.

4.2

You must tell us of any dispute over Charges within 15 days of the due date for such Charges.

4.3

If you fail to pay us any sum due to us on the due date, we shall be entitled to charge interest at an annual rate of 4% above the base rate of Barclays Bank Plc from such date and you are required to pay any applicable interest together with the overdue amount.

4.4

We may increase the Charges by giving you notice at any time. Any increase will apply from the next monthly anniversary of your Subscription Start Date occurring at least 30 days after the date of the increase notice.  You may terminate your Subscription in accordance with clause 9.4 if you do not want to accept the increase.

4.5

You must provide us with a valid Payment Method when you open and account with us and you hereby authorise us to collect all Charges from any Payment Method associated with your account with us.

4.6

We may suspend your access to the Services until we have been able to charge your Payment Method for all amounts due or until all outstanding payments have otherwise been received in full. You are responsible for any (a) uncollected amounts (b) all fees or charges made by the Payment Method issuer or bank.

4.7

You can update your Payment Method in your account management page. We may also update your Payment Method using information provided by your payment service providers. We can continue to charge the applicable Payment Method(s) following any such update.

4.8

We use third parties to process payments. Your payment information, Payment Method and other Personal Data will be passed to such third parties.

5

Data protection and data processing

5.1

We will collect and process Personal Data in connection with our provision of the Services. 

5.2

For the purposes of the Data Protection Legislation, we will be a data controller (as defined in the GDPR) of that Personal Data. We shall process the Personal Data in accordance with the Terms and our Privacy Policy.

5.3

Each party warrants to the other that it shall comply with its respective obligations under the Data Protection Legislation.

6

Intellectual Property Rights

6.1

Intellectual Property Rights in the Services, the Documentation, the Site and, subject to clause 6.2, any Deliverables (as well as any modifications, developments, improvements to, derivative works of or data emanating from the same) remain our property (or the property of our licensors).

6.2

Intellectual Property Rights in Your Materials remain your property.

6.3

You grant us a licence to use, copy, transmit, store and back up Your Materials for the purpose of enabling you to use the Services, and for any other purpose related to the provision of the Services to you. This applies both during your Subscription Term, and for so long as we are required to retain such information in order to comply with Applicable Laws.

6.4

If you have authorised an Accounting Partner to use the Services on your behalf, you also authorise us to permit the relevant Accounting Partner to use, copy, transmit, store and back-up Your Material and any Deliverables. This applies both during your Subscription Term, and following your Subscription Term for so long as the relevant Accounting Partner is required to retain such information or other data in order to comply with Applicable Laws.

6.5

We shall back up Your Materials in accordance with our standard policies and you should do the same on a regular basis. In the event of any loss or damage to Your Materials, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged data from the latest back-up of Your Materials maintained by us in accordance with this clause. We shall not be responsible for any loss, destruction, alteration or disclosure of Your Materials caused by any third party (except our subcontractors).

6.6

Where you grant access to third party software or systems to provide or extract data or information (including Your Materials) for use in conjunction with the Services, you must ensure that you are licensed to do so under your terms with such third party. We will not be responsible if you breach any third party terms as a result of such access.

6.7

Subject to clause 6.7 we shall keep you indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by you as a result of or in connection with any claim brought against you for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with your use of the Services in accordance with the Terms.

6.8

We shall have no liability under the indemnity in clause 6.7 to the extent that any alleged or actual infringement is based on: (i) a modification of the Services by any party other than us or by any parties authorised in writing by us to make such modifications; (ii) use of the Services in combination with software, services or data not supplied or expressly authorised by us in writing; (iii) your use of the Services in a manner contrary to instructions we have given you or otherwise in breach of the Terms; and/or (iv) your use of the Services after notice of the alleged or actual infringement from us or any appropriate authority.

6.9

You are solely responsible for the legality, reliability, integrity, accuracy and quality of Your Materials and your Personal Data, and for ensuring that we are legally entitled to use them in providing the Services to you. You shall keep us indemnified in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by us as a result of or in connection with any claim brought against us, our agents, subcontractors or consultants by any third party arising out of, or in connection with, the receipt or use by us of Your Materials and/or your Personal Data in the performance of the Services. 

6.10

If either party (the “Indemnifying Party”) is required to indemnify the other party (the “Indemnified Party”) under this clause 6, the Indemnified Party shall:

6.10.1 notify the Indemnifying Party in writing of any claim in respect of which it wishes to claim under an indemnity (“Indemnity Claim”);

6.10.2 allow the Indemnifying Party (at its own cost and provided that the Indemnifying Party considers and defends any Indemnity Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute) to conduct all negotiations and proceedings and to settle the Indemnity Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;

6.10.3 provide the Indemnifying Party with such reasonable assistance regarding the Indemnity Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and

6.10.4 not, without prior consultation with the Indemnifying Party, make any admission relating to the Indemnity Claim or attempt to settle it.

7

Confidentiality

7.1

Each party undertakes that it shall not at any time (a) disclose to any person; or (b) use for any purpose other than the performance or receipt of the Services, any confidential information concerning the business, affairs, clients or suppliers of the other party, except as permitted by clause 7.2.

7.2

The obligations in clause 7.1 shall not apply to any information which is already in the public domain or comes into the public domain other than as a result of a breach of the Terms. In addition, each party may disclose the other party’s confidential information:

7.2.1 to its employees, officers, representatives or advisers and to Lenders who need to know such information for the purposes of exercising the party’s rights, providing the Services or carrying out its obligations under or in connection with the Terms.  Each party shall ensure that such persons to whom it discloses the other party’s confidential information comply with this clause 7; 

7.2.2 in our case, in accordance with our Privacy Policy; and

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

8

Limitation of liability

8.1

Nothing in the Terms shall limit or exclude our liability (i) for death or personal injury caused by our negligence, (ii) for fraud or fraudulent misrepresentation, or (iii) to the extent that such liability cannot be limited or excluded by Applicable Laws.

8.2

Subject to clause 8.1, we shall not be liable to you under or in connection with your Subscription or the Services (whether in contract, tort (including negligence), for breach of statutory duty, or otherwise) for: (i) loss of profit; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of or damage to goodwill; (vi) loss of use or corruption of software, data or information (other than due to a breach of clause 5 or 6.5); and (vii) any indirect or consequential loss.

8.3

Subject to clauses 8.1 and 8.2 our total liability to you under or in connection with your Subscription or the Services (whether in contract, tort (including negligence), for breach of statutory duty, or otherwise) shall be limited to the greater of (a) an amount equal to the Charges paid by you in the 12 months prior to our liability arising; and (b) £100 (one hundred pounds sterling).

8.4

Except as expressly provided in the Terms and to the fullest extent permitted by Applicable Laws:

8.4.1 you assume sole responsibility for results obtained from your use of the Services, and for conclusions drawn from such use. We shall have no liability for any loss or damage caused by errors or omissions in any information, instructions, algorithms or scripts provided to you in connection with the Services, or any actions taken by us at your direction;

8.4.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from the Terms; and

8.4.3 the Services is provided to you on an “as is” and “as available” basis.

8.5

We shall not be in breach of the Terms or liable for failure to provide the Services due to circumstances beyond our reasonable control, and we do not warrant that your use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained through the Services will meet your requirements.

8.6

We are not responsible for any delays, delivery failures, or any other loss or damage resulting from:

8.6.1 the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; or

8.6.2 your acts or omissions (or those of your personnel, client(s), contractors and/or agents).

9

Term and termination

9.1

Your Subscription Term begins on your Subscription Start Date and shall continue until terminated in accordance with the Terms.

9.2

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

9.2.1 the other party commits a material breach of the Terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

9.2.2 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

9.2.3 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 9.2.2.

9.3

We may terminate or suspend your Subscription with immediate effect if any amount due in respect of your Subscription remains unpaid 15 days after we have given notice asking for such payment. This includes any amount due from your Accounting Partner.

9.4

Either party may terminate your Subscription at any time by giving not less than 30 days’ written notice to the other party.

9.5

Wherever we have a right to terminate your Subscription, we shall also have the right to suspend one or more Authorised Users’ access to the Services.  We may also suspend such access to protect the security of the Services and to maintain our systems.

10

Consequences of termination

10.1

On termination or expiry of your Subscription:

10.1.1 your and your Authorised Users’ access to the Services shall cease;

10.1.2 you shall immediately pay us all amounts due for Services provided prior to termination;

10.1.3 subject to your obligations under Applicable Law, you shall return (or destroy, at our election) all copies of the Documentation and any other confidential information of ours in your possession; 

10.1.4 subject to our obligations under Applicable Law, we shall at your request destroy all copies of Your Materials and any other of your confidential information in our possession; and

10.1.5 the following provisions of the Terms shall continue in force: clause 4 (Charges and Payment), clause 6 (Intellectual Property Rights), clause 7 (Confidentiality), clause 8 (Limitation of liability), clause 10 (Consequences of termination), clause 11 (General), clause 12 (Governing law and jurisdiction) and clause 13 (Definitions and interpretation).

10.2

We shall not provide any refund of any Charges paid by you in advance for any period following the termination of your Subscription unless we terminate your Subscription pursuant to clause 9.4.

10.3

Termination of your Subscription shall not affect any rights or remedies that you or we may have accrued up to the date of termination.

11

General

11.1

If during the provision of the Services we identify any data to you, or any data is identifiable, as Creditsafe data or as originating from Creditsafe (“Creditsafe Data”), you shall, and shall procure that your Authorised Users shall, comply with the additional terms available at https://fluidly.com/creditsafe-data-terms/ as updated and amended from time to time.

11.2

You may not assign, transfer, subcontract or otherwise deal in any other manner with any of your rights or obligations under the Terms without our express prior written consent.

11.3

We may make changes to the Services, the Site, our Privacy Policy and/or the Terms by giving you prior notice of such changes on the Site or by email.  By continuing to use the Services after the date of such notice you shall be deemed to have accepted the changes.

11.4

A waiver of any right or remedy under the Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. Any remedy available under or connection with the Terms shall, unless set out otherwise, be without prejudice to the availability of any other remedy.

11.5

A failure or delay by a party to exercise any right or remedy provided under the Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.6

If any provision or part-provision of the Terms 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 the Terms.

11.7

The Terms constitute the entire agreement between you and us in relation to access to and/or use of the Services and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Terms.

11.8

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

11.9

Any notice given under the Terms 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 an email address which you provided when setting up your account for the Services. 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. This clause shall not apply to the service of legal proceedings.

12

Governing law and jurisdiction

12.1

The Terms and our Privacy Policy and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or their subject matter or formation shall be governed by and construed in accordance with the law of England.

12.2

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Terms and/or our Privacy Policy or their subject matter or formation.

13

Definitions and interpretation

13.1

In the Terms the following words and phrases shall have the following meanings:

Accounting Partner an accounting or other services firm which you have authorised to provide accounting and other related services to you and which uses the Services in its provision of such services;
Applicable Laws all applicable laws, statutes, regulations, mandatory codes of practice and professional regulatory obligations applicable to the party in question from time to time in force;
Authorised User any employee, agent, consultant and/or subcontractor (including any Accounting Partner you have authorised in accordance with clause 6.4) engaged by you or any member of your group of companies who you authorise to use the Services in accordance with the Terms;
Business Day a day other than a Saturday, Sunday or public holiday in England;
Business Hours 9.00 am to 5.00 pm on any Business Day;
Charges the fees payable by you for your use of the Services in accordance with clause 4 as set out in your Order;
Creditsafe Creditsafe Business Solutions Limited (registered number 03836192);
Data Protection Legislation means:

  • the General Data Protection Regulation ((EU) 2016/679) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (UK GDPR), any national legislation passed to implement UK GDPR, and any legislation amending or replacing the UK GDPR from time to time; 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;

Deliverables any information that we provide to you, inclusive of cash flow predictions using data provided by you and/or on your behalf via the Services;
Intellectual Property Rights patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know- how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order our online or other order or registration form that sets out the commercial agreement between the parties;
party you or us and “parties” means both you and us;
Payment Method  a valid credit or debit card, direct debit or other means of payment we accept;
Personal Data the personal data collected and/or processed by us in connection with the provision of the Services;
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;
Subscription  an agreement with us relating to use of the Services formed by the Terms, an Order and our Privacy Policy;
Subscription Start Date the date on which you accept the Terms online or such other date that you and we agree that your Subscription starts (as applicable);
Subscription Term the period from your Subscription Start Date to the termination of your Subscription;
Subscription Year each successive 12-month period starting either on your Subscription Start Date, or on an anniversary of that date;
Terms these terms of service and any further terms set out in your Order;
VAT value added tax chargeable under the Value Added Tax Act 1994; 
Virus 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; 
“we”, “us” and “our”  Fluidly Limited, a company incorporated in England and Wales with company number 10402874 and with its registered office at 20-22 Wenlock Road, London, England, N1 7GU.  We are Authorised and Regulated by the Financial Conduct Authority as a Credit Broker under the firm reference number 844093;
“you” and “your”  the entity or person entering into a Subscription;
Your Materials all documents, information, data, items and materials in any form, whether owned by you or a third party, which are provided to us by you or your Authorised Users (as well as any Accounting Partner) in connection with your use of the Services, including the items provided pursuant to clause 2.1.5 (but excluding Personal Data).

13.2

Words in the singular include the plural and in the plural include the singular. A reference to writing or written includes email. A reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law (whether or not having separate legal personality). 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 or schedule is a reference to a clause of or schedule to the Terms. Clause and schedule headings do not affect the interpretation of the Terms. Any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words.

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