FUNDING

Fluidly Terms of Service for Accountants

Last updated on 27 September 2021

The below terms are for our accountant partners. To view our funding service terms, click here. To view our business terms and conditions, click here.

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

You will use the Services to support you to provide accountancy and other related professional services to your Clients. You may also choose to purchase subscriptions for your Clients to access the Services directly in accordance with clause 5.

Additional capitalised terms used in the Terms are defined in clause 17.1 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.

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 Deliverables; and

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

for your own business purposes to provide services to your Clients solely 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 and use of the Services on behalf of and in connection with your Clients and to provide Your Materials to us;

2.1.4 ensure that you are authorised to give all consents that you give to us on behalf of your Clients;

2.1.5 use the Services in compliance with all Applicable Laws;

2.1.6 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;

2.1.7 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 

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

2.1.9 promptly submit to us full written details of any complaints received by you from any third party (including any Client) relating to the Services, together with all relevant information relating to the same.

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 other than your Clients.

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.

2.4

You will not make or give any representations, warranties or other promises concerning us, the Services or any Lender.

3

Our obligations

3.1

We shall:

3.1.1 comply with all Applicable Laws concerning the Services;

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

3.1.3 provide such information and support as may be reasonably requested by you to enable you to discharge your duties properly and efficiently under the Terms; and

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

3.2

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

4

Charges and payment

4.1

You shall pay the Charges (if any) set out in your Order and for any Client Subscriptions 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 30 days of the due date for such Charges and refer the matter to the dispute resolution procedure in clause 14.

4.3

You will in your sole discretion determine the price at which you offer your own services to your Clients.

4.4

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.

4.5

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 12.4 if you do not want to accept the increase.

4.6

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.

4.7

We may suspend your access to the Services and/or suspend any Client Subscriptions until we have been able to charge your Payment Method for all undisputed 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

4.8

For the avoidance of doubt the Charges shall be payable notwithstanding any non-payment to you by your Clients.

4.9

You can update your Payment Method in your account. 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.

4.10

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

5

Client subscriptions

5.1

At any point during the Term, you may purchase subscriptions to the online Services for a Client to use on that Client’s own account (a “Client Subscription”).

5.2

The Client must agree to our terms of service to activate the Client Subscription, and we shall provide the Services to the Client in accordance with our terms of service. 

5.3

You shall pay for Client Subscription(s). In accordance with clause 4.7 we may suspend or terminate a Client Subscription if you do not make all payment due.

6

Client funding and commissions

The terms in this clause 6 apply if you engage in the Funding Service and elect to receive Commission

6.1

In addition to the Services, Fluidly provides a funding application service (the “Funding Service”) whereby your Clients or (subject to obtaining the relevant consents and permissions) you on behalf of your Clients can apply directly for specific Funding Products.  Applications for Funding Products will be based on data you or your Clients provide to us including Your Materials. You may choose to recommend the Funding Service and Funding Products to your Clients.

6.2

If you recommend a Funding Product to your Client, that Client enters into an agreement with the applicable Lender for such Funding Products and our records identify that such referral has come from you, we shall pay the Commission to you.

6.3

You shall ensure you make such disclosures to your Clients as it is required in accordance with Applicable Law in relation to the Commission.

6.4

You shall not use any data that is generated as a result of or in connection with your use of the Services to recommend third party products or services that compete with any aspect of the Services (including the recommendation of funding products of any type).

6.5

You will not be entitled to receive the Commission until we have received the Fluidly Commission in full from the relevant Lender.

6.6

You will not be entitled to receive the Commission if the first Drawdown occurs after the date of termination of  your Subscription Term.

6.7

If we are obliged to repay any Fluidly Commission to a Lender (a “Clawback”) we are entitled to either (a) deduct the value of the related Commission paid to you from any future Commission due or if no such Commission becomes due (b) to invoice you for the value of that related Commission.

6.8

We are not obliged to pay Commission on any Drawdown by a Client who has already been provided with information about a Funding Product by us when you first refer them.  We will let you know if this is the case.

6.9

On or before the 15th day of each calendar month we will notify you of all Commission which you are entitled to invoice us for in relation to the previous month (the “Monthly Notification”).

6.10

Upon receipt of a Monthly Notification from us, you will be entitled to invoice us for the Commission due.

6.11

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

6.12

We are not responsible for any Funding Product and cannot guarantee the eligibility of any Client for a Funding Product.

7

Intellectual Property Rights

7.1

Intellectual Property Rights in the Services, the Site, the Documentation and, subject to clause 7.2, 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).

7.2

Intellectual Property Rights in Your Materials remain your property (or the property of your Clients).

7.3

You grant us a licence (or shall procure that we are granted 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. You warrant to us that, to the extent necessary, you are authorised by your Clients to provide us with access to Your Materials.

7.4

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).

7.5

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.

7.6

Subject to clause 7.7 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.

7.7

We shall have no liability under the indemnity in clause 7.6 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.

7.8

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.

7.9

If either party (the “Indemnifying Party”) is required to indemnify the other party (the “Indemnified Party”) under this clause 7, the Indemnified Party shall:

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

7.9.2 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;

7.9.3 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

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

8

Warranty

8.1

Each party warrants to the other party that:

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

8.1.2 it will carry out its activities in relation to the Terms 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

Data protection

9.1

In these Terms, “controller”, “processor”, “personal data”, “personal data breach”, “data subject”, and “processing” have the meanings given to these terms in the GDPR.

9.2

Each of the parties acknowledge and agree that, for the purposes of the Data Protection Legislation, as between the parties:

9.2.1 you are the controller; and

9.2.2 we are the processor

in relation to the processing by us of any Personal Data to provide the Services.

9.3

The types of Personal Data, categories of data subject to whom it relates, and the subject matter, duration, nature and purposes of the processing to be carried out pursuant to this Clause 9 are set out in Annex A.

9.4

We will, in relation to the processing of Personal Data pursuant to the Terms:

9.4.1 comply with our obligations under the Data Protection Legislation;

9.4.2 process (and will procure that our personnel will process) the Personal Data (including the transfer to an international organisation or a country other than the United Kingdom outside the European Union) only:

(a) in accordance with your written instructions from time-to-time which instructions include (i) the Terms and (ii) to process Personal Data to provide the Services; or

(b) as otherwise required by law (subject to us first notifying you of the relevant legal requirement unless such notification is itself prohibited by law on important grounds of public interest);

9.4.3 notify you if we believe any of your instructions relating to processing Personal Data breaches any Data Protection Legislation;

9.4.4 only disclose the Personal Data to, and ensure that access to the Personal Data is limited to, those of our personnel who are bound by confidentiality obligations in relation to the Personal Data;

9.4.5 not transfer any Personal Data to an organisation or any country (other than the United Kingdom) outside the European Union without your express prior written consent, unless:

(a) such transfer is to, and processing is by, an international organisation or in a country which at the time of transfer or processing (as appropriate) is formally recognised by the European Commission or the UK Information Commissioner’s Office as providing an adequate level of data protection; or

(b) we have put in place appropriate safeguards to protect such Personal Data and ensure that the relevant data subjects have enforceable subject access rights and effective legal remedies as required by Data Protection Legislation.

9.4.6 implement appropriate technical and organisational measures in accordance with our information security policy from time to time designed to ensure a level of security appropriate to the data security risks presented by processing the Personal Data, including the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;

9.4.7 when we cease to provide the Services and/or cease to process Personal Data pursuant to the Terms as soon as technically possible and following a written request from you:

(a) delete all Personal Data; and

(b) delete all copies of the Personal Data,

(subject to any standalone legal basis we may have to retain such Personal Data or copies).

9.4.8 take appropriate technical and organisational measures to assist you in fulfilling your obligations to respond to any request by any data subject to exercise any data subject right;

9.4.9 at your request assist you in complying with your obligations under articles 32-36 inclusive of the GDPR or any equivalent or implementing legislation.

9.5

We will at your request, make available to you all information reasonably required to demonstrate our compliance with this clause 9.

9.6

We shall, on not less than 3 months’ notice during Business Hours and no more than once in any calendar year allow you, your statutory or regulatory auditors, and in each case their authorised agents, reasonable access to the information referred to in Clause 9.5 as you may require in order to verify our compliance with our obligations in this Clause 9.  You shall exercise your rights under this clause in such a way as to minimise disruption to our business, including as far as possible by utilising existing audit reports (such as ISO 27001) to verify our compliance with our obligations.

9.7

You acknowledge and agree that we may use third parties to process any personal data on your behalf pursuant to the Terms (each a “DP Sub-processor”). We will not appoint or replace any DP Sub-processor after the Effective Date without giving you prior notice.

9.8

We will enter into a written agreement with each DP Sub-processor and include in that agreement obligations on the DP Sub-processor which are equivalent to the obligations on us in relation to Personal Data under this clause 9.

9.9

We remain fully liable to you for the performance of each of our DP Sub-processors and their sub-contractors in relation to processing Personal Data.

9.10

You will:

9.10.1 comply with your obligations under the Data Protection Legislation;

9.10.2 not do or omit to do anything which causes us to breach any of our obligations under the Data Protection Legislation; and

9.10.3 reimburse us for any reasonable costs reasonably incurred by us in performing our obligations under Clauses 9.4.8, 9.4.9, 9.5 and 9.6, in each case except to the extent that such costs were incurred as a result of any breach by us of any of our obligations under this Clause 9 or Data Protection Legislation.

9.11

You represent, warrant and undertakes to us that:

9.11.1 you have obtained the Personal Data in accordance with the Data Protection Legislation; and

9.11.2 you have valid grounds for our processing of the Personal Data in accordance with the Terms.

9.12

Except as expressly provided in Clause 9.10.3 each Party will comply with its obligations in Clause 9 at no additional charge or cost to the other Party.

10

Confidentiality

10.1

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 10.2. 

10.2

The obligations in clause 10.1 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:

10.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights, providing the 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 10;

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

10.3

Either of us may publicise the fact that you are using the Services on our websites and other media from time to time, and we each grant the other a non-transferable, non-sublicensable licence to use our respective logos and trademarks for such purpose. Subject to the foregoing, neither party shall make any press release or public announcement in any form regarding the Services 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.

11

Limitation of liability

11.1

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.

11.2

Subject to clause 11.1, 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 9 or 7.4); and (vii) any indirect or consequential loss.

11.3

Subject to clauses 11.1 and 11.2 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 one hundred and twenty five percent (125%) of the Charges paid by you in the 12 months prior to our liability arising; and (b) £100 (one hundred pounds sterling).

11.4

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

11.4.1 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;

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

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

11.5

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.

11.6

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

11.6.1 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

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

12

Term and termination

12.1

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

12.2

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:

12.2.1 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;

12.2.2 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

12.2.3 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 12.2.2.

12.3

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

12.4

Either party may terminate your Subscription at any time by giving not less than 30 days’ written notice to the other party. Any such notice shall be given by you to your Fluidly account manager.

12.5

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.

13

Consequences of termination

13.1

On termination or expiry of your Subscription:

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

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

13.1.3 we will remain responsible for any Commission due to you under clause 6;

13.1.4 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;

13.1.5 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

13.1.6 the following provisions of the Terms shall continue in force: clause 4 (Charges and Payment), 6 (Commission), 7 (Intellectual Property Rights), clause 9 (Data Protection), clause 10 (Confidentiality), clause 11 (Limitation of liability), clause 13 (Consequences of termination), clause 15 (General), clause 16 (Governing law and jurisdiction) and clause 17 (Definitions and interpretation).

13.2

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 12.4 or you terminate your Subscription pursuant to clause 12.2.1.

13.3

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

13.4

Termination of your Subscription for any reason will not affect any Client Subscription then in-force, which shall continue until terminated in accordance with its terms subject to your ongoing payment of any associated Charges.

14

Dispute resolution

14.1

Any dispute or difference of opinion (a “Dispute”) arising between us and you in respect of or arising out of the Services shall be dealt with in accordance with this clause 14.

14.2

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

14.3

In the first instance, the authorised 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 a member of the executive team of each party who shall each use their reasonable endeavours to resolve the Dispute.

14.4

In the event that a Dispute cannot be resolved by negotiation as referred to in clauses 14.2 and 14.3 within twenty (20) days of the Dispute arising, either party may seek all available remedies at law or equity.

14.5

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.

15

General

15.1

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.

15.2

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.

15.3

We may make changes to the Services, the Site 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.

15.4

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.

15.5

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.

15.6

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.

15.7

The Terms and the Order 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.

15.8

No one other than a party to the Order shall have any right to enforce any of the Terms provided that Creditsafe may enforce any of the Terms that relate to Creditsafe or Creditsafe Data.

15.9

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 provided that no delivery failure message is received by the sender. This clause shall not apply to the service of legal proceedings.

16

Governing law and jurisdiction

16.1

The Terms 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.

16.2

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 or their subject matter or formation.

17

Definitions and interpretation

17.1

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

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;
Approved the Lender has formally communicated its approval of a Client to take out a Funding Product;
Authorised User any employee, agent, consultant and/or subcontractor 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 as set out in your Order and for the purchase of any Client Subscriptions in each case in accordance with clause 4;
Client a third party who you are engaged to provide accountancy and other related professional services to;
Client Subscription has the meaning given in clause 5.1;
Commission an amount equal to the percentage of the Fluidly Commission found at https://fluidly.com/funding-service-commission-accountants/ from time to time. We may change this amount at our discretion at any time;
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;
Documentation any documentation issued or supplied by us to you 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 when a Client who has been Approved has withdrawn funds made available under a Funding Product;
Fluidly Commission a commission which is paid by Lender to Fluidly under a separate agreement in relation to a Drawdown (less any Clawback (as defined in clause 6.7) or applicable value added or other sales tax);
Funding Products loans and other funding-related products and services provided by Lenders;
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;
Lender a third party on our panel of lenders;
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;
Subscription an agreement with us relating to use of the Services formed by the Terms and an Order;
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;
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;
“Accounting Partner’, “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 (including your Clients), which are provided to us by you or your Authorised Users in connection with your use of the Services, including the items provided pursuant to clause 2.1.6 (but excluding Personal Data).

17.2

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.

Annex A

Personal Data

Subject matter of processing: The provision of Services to you
Duration of Processing: Your Subscription Term
Nature and Purpose of Processing: Personal Data will be processed by us in connection with the provision of and support of the Services.
Personal Data Categories: Authorised Users

First name, surname, login details, email address, address, telephone number, IP address

Clients, Clients’ personnel and Clients’ suppliers (to the extent included in general ledger data processed by you through the Services)

First name, surname, email address, address, telephone number, employer details, bank account details, remuneration details, financial transactions, personal data included in free text fields

Data Subject Types: Authorised Users

Clients

Client personnel and suppliers

Archived terms and conditions

Fluidly Referral Agreement

Old Partner Terms

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