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Terms of service

Last updated on 22 September 2020

Year Established
Products
Team Size
Clients

The Parties 

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 3-5 Fashion Street, London, England, E1 6PX; 
  • Customer”, “you” and “your” means the legal entity which is entering into an agreement with Fluidly to purchase the SAAS Service, Funding Service, or both.

Agreement” means these Terms

Background 

Fluidly is an online service which provides two services, the first of which consists of tools including cash flow predictions, automated invoicing procedures, benchmarking performance and record-keeping keeping (the “SAAS Service”), and the second is a funding based service where you provide us with leads of sufficient quality which result in Drawdowns for commission (the “Funding Service”). Collectively these are referred to as the “Services”. Further detail of what is included in the Services is available on our website at https://fluidly.com/ (the “Site”). 

We are a company registered in England and Wales (company number 10402874) and our registered office is at 3-5 Fashion Street, London, England, E1 6PX. We are authorised by the Financial Conduct Authority under the Payment Services Regulations 2017 (SI 2017/752) (Firm Reference Number: 791669) with permission to carry on account information services and payment initiation services. We are also Authorised and Regulated by the Financial Conduct Authority as a Credit Broker under the firm reference number 844093. Please note we are a credit broker and NOT a lender. Our VAT registration number is: 252278406 

This agreement governs the arrangement between Fluidly and the Customer in relation to provision of the Services.

Definitions and 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.

 

Approved” 

means when a lead takes out a Funding Product from the Lender (and the Lender has formally communicated its confirmation of approval to that lead); 

“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;

“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 Customer who is authorised to use the Service by the Customer under, and in accordance with, the applicable Terms of Services;

“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 the Customer and has entered into a Client Agreement;

“Client Agreement”

means an agreement relating to the Client’s access to and use of the SAAS Service subject to the Terms of Services made between a Client and either the Customer  or Fluidly; 

“Client Charges”

means the charges payable by a Client to the Customer 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 SAAS Service;

Clawback” 

has the meaning set out in Clause 1.5 of Schedule 1.

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”;

“Contract Year”

means each one (1) 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);

“Customer”

means the Party identified as the ‘Customer’ in this agreement

Customer Background IPR” 

means any Intellectual Property Rights created and/or owned by Customer (or Customer’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 Customer independently of this Agreement;

Customer Commission” 

has the meaning set out in Clause 1.1 of Schedule 1

“Data Protection Laws”

means:

        1. 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

        2. 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 6.8.1;

“Documentation”

means any documentation issued or supplied by Fluidly to the Customer relating to the Services, including instructions, technical specifications, supporting documents, marketing and sales documents, in whatever form or format, as updated from time to time; 

Drawdown

means when a lead who has been Approved has withdrawn funds made available under a Funding Product;

“Effective Date”

means the date the Customer agrees to this agreement in relation to the SAAS Service, or either the date the Customer agrees to this agreement or the date that the first lead is approved for a Funding Product, whichever is earlier, in relation to the Funding Service ;

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 

“Initial Term”

means one (1) month from the date of this agreement

“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;

Lender

means the third party who offers a Funding Product;

Monthly Notification” 

has the meaning set out in Clause 1.7 of Schedule 1; 

“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 further one (1) month periods from the end of the initial term and the end of each Renewal Term

“Representative”

means, in respect of each Party, the person identified in this agreement

“Resale Fees”

means the fees charged by Fluidly to the Customer in respect of its distribution to Clients of the subscriptions to use the SAAS Service;

“Services”

means the online platforms operated by Fluidly via the Site which provides services including cash flow predictions, automated invoicing procedures, benchmarking performance and keeping records (SAAS Service) or the displaying/promoting of Funding Products to leads (Funding Service);

“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 Services”

means the Terms of Services available on the Site (as may be amended by Fluidly from time to time in accordance with the Terms of Services);

“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.

1.

1.1

Term and Termination

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 thirty (30) 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. 

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 thirty (30) 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. 

1.2

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:

1.2.1

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 notice requesting such payment;

1.2.2

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;

1.2.3

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;

1.2.4

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

1.2.5

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 1.2.3.

2

Consequences of Termination

2.1

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

2.2

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

2.2.1

cease to resell or market the Services and any rights or licences granted to the Customer in clauses 4.1 schedule 2, and 6.9 shall terminate;

2.2.2

subject to clause 2.4, return (or destroy, at Fluidly’s discretion) to Fluidly all copies of the Documentation any other Fluidly materials in the Customer’s possession (including any confidential information). 

2.3

Upon expiry or termination of the Agreement howsoever arising:

2.3.1

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);

2.3.2

as such, Part 5 of Schedule 2 shall continue to apply until the expiry or termination of the last Client Agreement;

2.3.3

subject to Part 1 schedule 2, Fluidly shall pay outstanding undisputed Customer Commissions which were payable at the date of termination of the Agreement;

2.3.4

Fluidly shall, unless the Agreement is terminated pursuant to clause 8.6 and, provided that the Customer continues to pay the relevant Resale Fees and complies with the terms of clauses 5.3 and 5.4, continue to provide all existing Clients with access to the SAAS Service until the end of the current term of that Client’s Client Agreement; and

2.3.5

Fluidly shall, subject to clause 2.4 and any extension required in the performance of Fluidly’s obligations under clause 2.3.4, return (or destroy, at the Customer’s election) to the Customer all copies of the Customer’s confidential information in Fluidly’s possession.

2.4

Termination of the Agreement for any reason will not affect:

2.4.1

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

2.4.2

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.

3

Liability and Limitation of Liability

3.1

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

3.1.1

for fraud or fraudulent misrepresentation;

3.1.2

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

3.1.3

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

3.2

Exclusions. Subject to 3.1, Fluidly shall not be liable to you 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:

3.2.1

Indirect or consequential loss;

3.2.2

loss of actual or anticipated profits;

3.2.3

loss of revenue;

3.2.4

loss of sales, business or business opportunity;

3.2.5

loss of agreements or contracts;

3.2.6

wasted expenditure

3.2.7

anticipated savings;

3.2.8

damage to reputation or loss of goodwill;

3.2.9

costs of enforcing this Agreement;

3.2.10

loss of, damage to or corruption of data;

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

       indirect or consequential loss of any kind.

3.3

Liability cap. Subject to Clauses 3.1 and 3.2 Fluidly’s aggregate liability to you 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 Customer Commission paid or payable by Fluidly to you in such Contract Year, or one hundred and twenty five percent (125%) of the Resale Fees paid or payable by you to Fluidly in respect of such Contract Year. “Contract Year” means each successive one (1) month period commencing on, or on any anniversary of, the Effective Date.

3.3.1

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.

3.3.2

The total liability of each party to the other under this 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.

4

Confidentiality

4.1

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.

4.2

Restrictions. Subject to Clauses 5.3 and 5.4, each Party agrees in relation to the Confidential Information relating to the other Party:

4.2.1

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

4.2.2

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

4.2.3

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.

4.3

Exceptions. The obligations in this Clause 4 shall not apply in relation to:

4.3.1

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

4.3.2

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

4.4

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

4.4.1

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

4.4.1

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

4.4.3

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

4.4.4

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.

4.5

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.

5

Liability and Limitation of Liability

5.1

Without limiting the parties’ obligations under Schedule 2 1.1 and 1.2, each party shall: 

5.1.1

maintain a full and accurate record of sales of subscriptions to use the SAAS 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

5.1.2

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

5.2

Each party shall:

5.2.1

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;

5.2.2

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

5.2.3

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.

5.3

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

5.3.1

of any Client Agreement by any Client; and/or

5.3.1

of the Terms of Services 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 Services in relation to any actual breach; and (ii) the Customer 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 5.3. 

5.4

In the event of an actual breach by a Client of a Client Agreement, the Customer shall promptly notify Fluidly and the Customer may: (i) request that Fluidly suspends the Client’s access to the SAAS Service immediately; or (ii) immediately terminate the relevant Terms of Services. For the avoidance of doubt and subject to Part 5 Schedule 2, the Client’s breach of its Client Agreement (including any delay in payment of any charges owed by the applicable Client to the Customer) shall not affect any Resale Fees due from the Customer to Fluidly in respect of that Client.

6

Intellectual Property

6.1

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.

6.2

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

6.3

Licence to use the SAAS Service. Fluidly hereby grants to the Customer a non-exclusive, revocable, non-transferable licence for the duration of this Agreement only to use the SAAS Service.

6.4

Third party IPR indemnity. Subject to Clause 6.6 Fluidly will indemnify the Customer from and against claims or allegations by a third party alleging that use of any of the Services by the Customer in accordance with this Agreement infringes Intellectual Property Rights of a third party (each a “Third Party IPR Claim”).

6.5

The Customer shall: (a) promptly give Fluidly written notice of any Third Party IPR Claim of which it 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 Customer shall take reasonable steps to mitigate its loss arising as a consequence of or in connection with any Third Party IPR Claim.

6.6

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

6.7

The Customer acknowledges and agrees that it shall have no rights to use the Services or Documentation except as expressly set out in the Agreement.

6.8

In order to allow the Customer to make use of the SAAS Service, Fluidly hereby grants to the Customer a licence for the Term in the Territory to:

6.8.1

access and use the SAAS Service via the Demo Environment for the purposes of marketing initiatives, including demonstrating and marketing the SAAS Service to third parties;

6.8.2

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

6.9

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.

7

Data Protection

7.1

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

7.2

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).

7.3

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. 

7.4

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.

7.5

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.

8

Indemnity

8.1

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. 

8.2

The indemnity in clause 8 1 shall not apply to the extent that relevant claim is based on:

8.2.1

a modification of the Services by anyone other than Fluidly; or

8.2.2

the use of the Services in a manner contrary to Terms of Services and/or any instructions given by Fluidly to the Customer; or

8.2.3

the use of the Services by the Customer after notice of the alleged or actual infringement from Fluidly or any appropriate authority.

8.3

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:

8.3.1

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

8.3.2

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

8.4

The Indemnified Party shall, in relation to any claim under this clause 8:

8.4.1

provide the Indemnifying Party with prompt notice of such claim;

8.4.2

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

8.4.3

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

8.4.4

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

8.5

In the circumstances set out in clause 8.1, 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:

8.5.1

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

8.5.2

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

8.5.3

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

8.6

If Fluidly is the Indemnifying Party and clauses 8.5.1, 8.5.2 or 8.5.3 are not possible (as determined by Fluidly in its sole discretion), Fluidly may terminate the Agreement by providing written notice to the Customer.

9

Warranty

9.1

Each party warrants to the other party that:

9.1.1

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

9.1.2

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 Services or of the other party.

9.2

Fluidly:

9.2.1

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

9.2.2

does not warrant that the Customer’s use of the Services will be uninterrupted or error-free;

9.2.3

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

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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

10

Dispute Resolution

10.1

Any dispute or difference of opinion (a “Dispute”) arising between Fluidly and the Customer in respect of or arising out of the Agreement shall be dealt with in accordance with this clause 10.

10.2

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

10.3

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.

10.4

In the event that a Dispute cannot be resolved by negotiation as referred to in clauses 10.2 and 10.3 within twenty (20) days of the Dispute arising, either party may seek all available remedies at law or equity.

10.5

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.

11

Jurisdiction

11.1

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.

11.2

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).

Schedule 1 – Funding Service Specific Terms

Please note that the terms in this Schedule 1 are only applicable if you engage in the Funding Service.

Part 1 – Commission and Payment

1.1

Customer Commission. Subject to the remainder of this Clause 1.1 the Customer will be entitled to the commission percentage corresponding to its membership tier  found at the end of this Schedule 1 in relation to the first Drawdown of the relevant Funding Product (the “Customer Commission”). The Customer expressly agrees and acknowledges that Fluidly retains the right to change the Customer Commission payable under this agreement at its discretion.

1.2

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

1.3

Time limit. The Customer will not be entitled to receive the Customer Commission if the first Drawdown occurs: (a) more than 3 months after the date that the lead 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 Customer Commission will be calculated based on the Fluidly Commission for the first Drawdown only and the Customer shall not be entitled to receive Customer 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 Customer Commission paid by Fluidly.

1.6

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

1.7

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

1.8

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

1.9

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

Part 2 – Fluidly Obligations

2.1

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

2.2

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.

Part 3 – Your Obligations

3.1

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

3.2

Acknowledgement. Customer acknowledges that except as expressly stated otherwise in this Agreement and/or as otherwise required by applicable law, the Funding Products are provided on an “as is” and “as available” basis, and in no event does Fluidly provide any warranties in relation to the Funding Products.

3.3

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

 

Membership Tier

Commission %

Sole

20

Practice

20

Practice Plus

20

Enterprise

20

Silver

20

Gold

20

Ruby

20

 

Schedule 2 – SAAS Service Specific Terms

Please note that the terms in this Schedule 2 are only applicable if you engage in the resale of the SAAS Service.

Part 1 – Appointment of the Customer as a reseller of the SAAS Service

1.1

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

1.2

the Customer shall not market the SAAS 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 the Customer directly, independently and proactively.

1.3

In the Territory, the Customer shall:

1.3.1

be entitled to describe itself as an “Approved Reseller” of the SAAS 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 SAAS Service for the relevant Client’s business purposes; or (ii) provides substantially the same functionality as the SAAS 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 SAAS Service which are inconsistent with those contained in the Documentation.

1.4

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

1.4.1

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

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 Services;

1.4.3

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

1.4.4

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

1.5

Notwithstanding any use of the words “sale”, “re-sell” or similar expression in the Agreement, the SAAS Service is licensed, and not sold, and the Customer is only granted the rights set out in this agreement. 

1.6

the Customer shall provide Fluidly with a copy of, in a format to be notified by Fluidly, of any Client Agreement which the Customer has entered into (including the Client’s name and applicable Client Charges and duration) within ten (10) 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 Services, Fluidly shall provide access to the SAAS Service to the relevant Client in accordance with the Terms of Services. 

Part 2 – Your Obligations 

2.1

During the Term, you shall:

2.1.1

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

2.1.2

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

2.1.3

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 the Customer;

2.1.4

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

2.1.5

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 SAAS Service by Fluidly; and

2.1.6

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

Part 3 – Our Obligations 

3.1

 Fluidly undertakes to:

3.1.1

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

3.1.2

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

3.1.3

make the SAAS Service available to the Customer (including its Authorised Users) in accordance with the Terms of Services;

3.1.4

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

3.1.5

provide the Customer with access to up-to-date Documentation for the Customer’s use;

3.1.6

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

3.1.7

ensure that the Customer 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

3.1.8

promptly make available to each Client the Terms of Services for acceptance by the Client and notify the Customer of each such acceptance within two (2) Business Days.

Part 4 – Your Licence to use the SAAS Service

4.1

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

4.2

the Customer’s access to and use of the SAAS Service shall be subject to the Terms of Services, save that:

4.2.1

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

4.2.2

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 the Customer);

4.2.3

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

4.2.4

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

Part 5 – Resale Fees and Payment Terms

5.1

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

5.2

In relation to each Client Agreement, the Customer shall pay fees to Fluidly as set out in this agreement of £19.50 per SME subscription per month (“Resale Fees”) however fluidly reserves the right to amend this fee at any time, and, 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.

5.3

Within two (2) Business Days of the end of each month Fluidly shall provide to the Customer 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. the Customer shall have a further two (2) Business Days to query the statement provided. If a query is raised by the Customer, Fluidly shall promptly address it, providing supporting evidence and reasonably required. If no query is raised by the Customer during that period, then the draft invoice shall be deemed to be a final invoice.

5.4

The Customer 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.

5.5

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 10, Fluidly reserves the right without prejudice to any other right or remedy it has under the Agreement or in law to:

5.5.1

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

5.5.2

where the invoice remains unpaid seven (7) Business Days after deemed receipt by the the Customer of a notice stating the undisputed amount that remains unpaid and requiring the the Customer 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 SAAS Service, or to terminate this Agreement.  

5.6

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 10, and neither Party shall during the period of such dispute be entitled to suspend or terminate the Agreement in respect of the non-payment.

5.7

Any sums payable by the Customer 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.

Archived terms and conditions

Fluidly Referral Agreement

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