Effective as of May 24, 2021
You can either scroll down to read these terms in their entirety (which we recommend you do), or click on one of the links below to go straight to the section you are interested in.
- About the Flow Agreement
- Eligibility and screening
- Flow Services
- Provider Services
- Project Management Tools
- Dispute resolution
- Provider Charges and Flow Commission
- Intellectual Property Rights
- Publicity and promotion
- Data protection
- Limitation of liability
- Duration and termination of the Flow Agreement
- Consequences of termination
- General terms
- Definitions and interpretation
ABOUT THE FLOW AGREEMENT
What these Terms cover. The provisions set out in clauses 1 (About the Flow Agreement) to 17 (Definitions and interpretation) of this document are the terms and conditions (Terms) on which we supply Flow Services to you.
About the Flow Agreement. If you complete our Registration Form on our website, we will ask you to expressly agree to these Terms. By completing the Registration Form you confirm that you accept these Terms in full and enter into a legally binding agreement with us for the provision of Flow Services (Flow Agreement). For the avoidance of doubt, you are not entering into the Provider Agreement by accepting our Terms or completing the Registration Form.
Who we are. When we say we, us or our, we mean Flow Digital Ltd, a company registered in England and Wales under company number 08738226. Our registered office and principal business address is at Adamson House 4th Floor, 65 Westgate Road, Newcastle Upon Tyne, England, NE1 1SG.
Buyers and Providers. Flow Services are for businesses seeking e-commerce services using our intermediation services (Buyers) and providers of such e-commerce services using our intermediation services (Providers). When we say user, you or yours, we mean the person whose details are provided on the Registration Form on our website. If you use Flow Services or expressly agree to these Terms in the course of a business or other organisational project, then by so doing you bind both:
- yourself; and
- the person, company or other legal entity that operates that business or organisational project,
to these Terms, and in these circumstances references to user, you or yours in these Terms are to both the individual user and the relevant person, company or legal entity, unless the context requires otherwise.
Changes to these Terms. We may amend these Terms from time to time. We will give you at least 15 days’ notice of any change by sending you an email with details of the change. We may implement immediate changes to these Terms without respecting that notice period if such changes are required by a legal or regulatory obligation that applies to us; or if the changes we introduce are only editorial and do not alter the content or meaning of the provisions of these Terms. The new terms will come into force on the expiry of the notice referred to in this clause, but they will not affect Flow Services that had commenced before the expiry of that notice (unless otherwise agreed by the parties in writing).
ELIGIBILITY AND SCREENING
Eligibility requirements. Flow Services are designed for businesses and not for consumers. You are a business (and not a consumer) if you are a Buyer using the Flow Services to find a Provider of the Provider Services or if you are a Provider using the Flow Services to offer the Provider Services to Buyers, in each case for purposes relating to your trade, business, craft or profession. To be eligible to use the Flow Services, you must be operating a business and:
- if you are a sole trader, you must be at least 18 years of age;
- if you are a partnership, company or other legal person, you must lawfully be able to enter into legally binding contracts; or
- if you are using the Flow Services on behalf of an organisation (for example, a company or other legal entity), you must have its authority to do so and to bind it on all matters relating to your use of the Flow Services,
and by completing the Registration Form or using the Flow Services, you warrant and represent that you meet these conditions.
Provider screening. If you are a Provider, you must successfully pass our screening process before we will Introduce you to any Buyer. For this purpose, you may be required to provide evidence of your credentials, experience and reputation (for example, testimonials, case studies, portfolios, or proof of qualifications). We may also contact, with your permission, your referees (such as your customers) to verify your evidence. We reserve the right, at our sole discretion, to refuse to Introduce you to a Buyer if in our opinion you are not suitable to provide the required Provider Services or meet the requirements of the Buyer.
Flow Services. We will use reasonable endeavours to provide business-to-business intermediation services to Buyers and Providers (Flow Services), which may include:
- scoping out the Buyer’s requirements for the Provider Services;
- conducting searches for Providers suitable to carry out the Provider Services of such nature as the Buyer notifies to us;
- screening potential Providers to verify their suitability to provide the required Provider Services (see clause 2.2 (Provider screening));
- Introducing Providers to the Buyer (or vice versa);
- managing the relationship between the Buyers and the Provider in respect of the Provider Services;
- invoicing the Buyer for the Provider Services on behalf of the Provider;
- remitting payments of the Provider Charges received from the Buyer for the Provider Services (less the Flow Commission and the applicable VAT payable on the Flow Commission) to the Provider; and
- resolving disputes between Buyers and Providers (as set out in clause 6 (Dispute resolution)).
Our role. You acknowledge that:
- Whilst we will use reasonable endeavours to find suitable Providers to meet the Buyer’s specific needs, we do not represent, warrant or undertake that we will be able to find a suitable Provider for each set of requirements notified to us by the Buyer;
- we are not a party to any Provider Agreement or any other contract between any users;
- to the extent that we may confirm the identity of users (whether Buyers or Providers), check their creditworthiness or bona fides, or otherwise vet them, we do so (except as set out in clause 2.2 (Provider screening)) for and on our own behalf. You are advised to carry out your own due diligence checks on any user with which you enter into a Provider Agreement;
- although we make reasonable efforts to vet Providers in accordance with clause 2.2 (Provider screening), we do not represent, warrant or undertake that any Provider will indeed be suitable to provide any Provider Services, or meet the requirements of any Buyer; or that Provider Services will meet any quality standards. You are advised to carry out your own checks about the Provider before entering into any Provider Agreement;
- we do not make any representations, or give any warranties or undertakings in respect of the performance of any obligations of Buyers or Providers under any Provider Agreements (whether express or implied);
- we have no control over, and do not monitor or audit the quality, accuracy or timeliness of any Provider Services or the compliance of Buyers or Providers with the terms of any Provider Agreements (whether express or implied) and make no representations, warranties or undertakings in that respect; and
- we are not responsible for the enforcement of any contractual obligations arising out of any Provider Agreement,
and accordingly, subject to clause 12.2 (Deliberate default) and clause 12.3 (Unlimited liability), we will not be liable to any person for any actions or omissions of any users in relation to any offer or supply of any Provider Services.
Your default. If the performance of any of our obligations under a Flow Agreement is prevented or delayed by any act or omission of the relevant Buyer or Provider or their employees, agents, consultants and/or sub-contractors, a breach of any provisions of that Flow Agreement by the relevant Buyer or Provider, or failure by the relevant Buyer or Provider or their employees, agents, consultants and/or sub-contractors to perform any relevant obligation (Customer Default), then:
- without limiting or affecting any other right or remedy available to us, we shall have the right to suspend performance of the Flow Services under that Flow Agreement until the user in default remedies the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations, in each case to the extent the Customer Default prevents or delays our performance of any of our obligations;
- we shall be granted relief from any failure to carry out the Flow Services or otherwise comply with our obligations under that Flow Agreement and we shall not be liable for any costs or losses sustained or incurred by the relevant Buyer or Provider arising directly or indirectly from our failure or delay to perform any of our obligations; and
- the user in default shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
Behaviour of users. You acknowledge that we cannot be held responsible for the behaviour of any users, and we cannot guarantee that any information provided by a user is true, accurate, complete, current and not misleading. Subject to clause 12.2 (Deliberate default) and clause 12.3 (Unlimited liability), you will not hold us liable in respect of any loss or damage arising out of any user behaviour or user information.
Proposal. The Provider must produce and supply to the Buyer a proposal in respect of the Provider Services setting out how the Provider proposes to meet the Buyer’s requirements, and the Provider Charges (Proposal).
Provider Agreement. It is up to the relevant Buyer and Provider whether they want to work together and on what terms. Once we have Introduced the Buyer to the Provider (or vice versa), the Provider has supplied to the Buyer and the Buyer has reviewed the Proposal, the parties may, at their sole discretion, decide whether to proceed or not and agree between themselves the terms and conditions of the Provider Agreement (whether verbally or in writing).
Terms of supply of the Provider Services. The Provider Agreement must, as a minimum, include:
- identity of the parties (full name, registered office address (if a company) or principal place of business (in other cases), registration number (if applicable), country of incorporation (if applicable));
- details of the Provider Services to be supplied under the Provider Agreement;
- agreed deliverables;
- acceptance criteria;
- any agreed timescales and/or milestones;
- Provider Charges;
- payment terms; and
- duration of the Provider Agreement,
(together the Minimum Terms).
Confirmation of the Provider Agreement. Both Buyers and Providers undertake to us to:
- share a copy of the Proposal and the Minimum Terms with us (by uploading them on the Project Management Tool or as may otherwise be agreed with us) and agree that the act of sharing of the Minimum Terms with us shall be deemed to be a representation by the user that they have entered into a legally binding Provider Agreement with the other user;
- notify us in writing without undue delay to any changes to the Minimum Terms (including any extensions, renewals and replacement of the Provider Agreement); and
- notify us in writing without undue delay if the Provider Agreement expires or is terminated by any party before the expiry of its duration as set out in the Minimum Terms notified to us.
Compliance with the Provider Agreement. Both Buyers and Providers undertake to us to:
- comply with the Minimum Terms agreed between themselves; and
- comply with all applicable laws in connection with the provision and receipt of the Provider Services.
PROJECT MANAGEMENT TOOLS
Project Management Tools. We use Project Management Tools to enable us to provide Flow Services to Buyers and Providers and to ensure full transparency between all three parties in respect of the Provider Services and billing. Users agree to:
- register to the Project Management Tool;
- comply with the terms and conditions of the supplier of the Project Management Tool;
- use the Project Management Tool to:
- share the Proposal and the Minimum Terms with us;
- communicate between themselves in respect of the Provider Services;
- record progress of the Provider Services (including in respect of any agreed work order, milestones and sign-offs); and
- record and manage the sign-off of any agreed deliverables.
No representations. Users acknowledge that the Project Management Tool chosen by us may be provided by a third-party supplier. In such circumstances, the user acknowledges and agrees that:
- we do not act as an agent on behalf of the provider of the Project Management Tool;
- we do not sub-licence or grant any rights in the Project Management Tool to you;
- we are not a party to any contract between the user and the provider of the Project Management Tool;
- we make no representations, warranties or undertakings in respect of the Project Management Tool or its provider;
- without limiting the generality of the foregoing, we do not represent that your use of the Project Management Tool will be uninterrupted, error-free or secure or that it will comply with any applicable laws; and
- you are required to make your own independent judgement whether or not to use the Project Management Tool.
Alternative Project Management Tools. If you decide not to use our chosen third-party Project Management Tool, we may propose another online or off-line Project Management Tool in place of our chosen one, but reserve the right to require the refusing user to pay to us on account of the Flow Commission an amount equal to a part or full amount of the Flow Commission prior to the start of the supply of the Provider Services by the Provider to the Buyer.
Scope of this clause. The dispute resolution procedure set out in this clause 6 is for the benefit of Buyers and Providers to assist them in resolving certain types of disputes in respect of Provider Agreements as set out in this clause 6. The use of this procedure by the relevant Buyer and Provider is not mandatory and it is without prejudice to any other right or remedy available to them under or in connection with the relevant Provider Agreement save as provided in clause 6.3.
Dispute resolution procedure. If a dispute arises between a Buyer and a Provider out of or in connection with a Provider Agreement between them in relation to the quality and timing of deliverables (Dispute), then either Buyer or the Provider may request us to make a determination in that dispute in accordance with this clause:
- either the Buyer or the Provider shall give to the other and to us written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the party (the Buyer or the Provider as the case may be) in receipt of the Dispute Notice shall, within 7 days confirm to the other party and to us whether they agree to submit to the dispute resolution procedure set out in this clause 6.2, and (if so) shall attempt in good faith to resolve the Dispute;
- if the Buyer and the Provider are for any reason unable to resolve the Dispute within 30 days of the Dispute Notice, we will attempt in good faith to mediate between the Buyer and the Provider to resolve the Dispute; and
- if the Dispute remains unresolved within 30 days from the commencement of our mediation in accordance with clause 6.2(b) above, the Buyer and the Provider agree that we shall make, in our sole discretion, final determination in the Dispute within 14 days based on information provided to us by the Buyer and the Provider pursuant to this clause 6.2.
Duration of the process. Neither the Buyer nor the Provider may commence any court proceedings (in relation to the whole or part of the Dispute) until the expiry of the 14 days’ resolution period referred to in clause 6.2(c), provided that the right to issue proceedings is not prejudiced by a delay.
PROVIDER CHARGES AND FLOW COMMISSION
Provider Charges. In respect of Provider Charges:
- you agree that we shall invoice the Buyer for the agreed Provider Charges on the Provider’s behalf at such intervals as agreed between the Buyer and the Provider in accordance with the Minimum Terms (for example, when the agreed deliverables of the Provider Services are signed off by the Buyer, or in accordance with the terms of a retainer agreed between the Buyer and the Provider, as the case may be);
- the Buyer shall pay each invoice submitted to it within the timeframe indicated in the agreement with the provider using one of the payment methods indicated on the invoice;
- we will pay the Provider Charges (less the Flow Commission and the applicable VAT payable on the Flow Commission) to the Provider within 15 days of receipt from the Buyer; and
- you agree and acknowledge that we are not responsible for enforcing payment of any unpaid Provider Charges.
Flow Commission. In respect of the Flow Commission:
- the Flow Commission shall be payable to us at the rate or rates specified on our website from time to time in respect of all Provider Agreements concluded between a Buyer and a Provider during the term of our Flow Agreement with that Buyer and/or that Provider;
- subject to clause 5.3 (Alternative Project Management Tools) we shall deduct Flow Commission due from amounts held or processed by us on behalf of the Provider; and
- Flow Commission payments are non-refundable, irrespective of whether a Buyer subsequently cancels the underlying Provider Agreement and irrespective of whether a Buyer is entitled to, or receives, a refund in respect of such Provider Agreement.
VAT. If we are required by applicable law to make any VAT deductions to or on payments made by us to a Provider or processed by us on behalf of a Provider under these terms and conditions, we shall remit those deductions to the relevant government or tax authorities. We shall provide written evidence of any such tax payments to the Provider. The Provider must reimburse us in respect of such tax payments and, without prejudice to our other rights under these terms and conditions, we may deduct an amount equal to any such tax payments from payments due to the Provider under these terms and conditions.
Failure or delay to pay. Without prejudice to any other right or remedy we may have, if you fail to pay us any sum due to us under the Flow Agreement, we may suspend or withdraw the provision of the Flow Services to you.
Financial compliance. Promptly following receipt of a written request from us, you must supply to us any information and documentation that we may reasonably request in order to identify you or facilitate our compliance with our legal obligations relating to the taxation of payments made to us or processed by us under or in relation to these terms and conditions. We may supply such information and/or documentation to relevant government and tax authorities.
Set-off rights. All sums payable to us in respect of the Flow Commission shall be paid in full without any set-off counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). We may at any time set off any amount that you owe to us against any amount that we owe to you, by sending you written notice of the set-off.
Changes to the Flow Commission rates. We may vary Commission rates from time to time by posting new rates on our website, but this will not affect any liability to pay Commission that accrues before the new rates are posted.
INTELLECTUAL PROPERTY RIGHTS
No transfer of IPRs. Nothing in any Flow Agreement is intended to, or shall be deemed to, transfer any Intellectual Property Rights of any person to any party.
Grant of licence. You grant us a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to use Your Materials for the term of the relevant Flow Agreement solely for the purposes of:
- providing the Flow Services to you and the Provider (if you are a Buyer) or to you and the Buyer (if you are a Provider) and to the Customer in accordance with the Contract; and
- enforcing our rights under that Flow Agreement.
PUBLICITY AND PROMOTION
Publicity licence. Subject to clause 9.2, you:
- agree that we may communicate to third parties the fact that we supply the Flow Services to you; and
- hereby grant to us a non-exclusive, worldwide, royalty-free, licence for the term of the relevant Flow Agreement and 12 months after its expiry to publish on our website and in other electronic and printed marketing materials, your name, logo, and your other trade marks, and a hyperlink to your website, in each case, for our own promotional purposes.Right to revoke or restrict. You have the right, at any time, by written notice to us, to revoke or restrict the scope of the permission and licence granted to us under clause 9.1.
Confidential information. Each party to the relevant Flow Agreement may be given access to the other party’s confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs in order to perform its obligations under that Flow Agreement. Confidential information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party, which independent development can be shown by written evidence; or
- is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory authority.
Confidentiality obligations. Each party to the relevant Flow Agreement shall hold the other party’s confidential information in confidence and, unless required by law, not make the other party’s confidential information available to any third party, or use the other party’s confidential information for any purpose other than the performance of its obligations under that Flow Agreement or as permitted in clause 9.1 (Publicity and promotion)).
Compliance by employees and agents. Each party to the relevant Flow Agreement must take all reasonable steps to ensure that the other party’s confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of that Flow Agreement.
Liability for acts of third parties. Neither party to the relevant Flow Agreement shall be responsible for any loss, destruction, alteration or disclosure of confidential information caused by any third party (including the Provider of the relevant Provider Services (if you are a Buyer), or the Buyer of the relevant Provider Services (if you are a Provider)).
Additional definitions. In this clause 11:
- appropriate technical and organisational measures, data controller, data subject, personal data, personal data breach and processing have the meanings ascribed to them in the Data Protection Legislation (and the terms process and processed shall be construed accordingly);
- Data Protection Legislation means all applicable laws relating to the processing, privacy and/or use of personal data, as applicable to you or us, or the Flow Services, including: (i) the Data Protection Act 2018; (ii) the General Data Protection Regulation, Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018; (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; (iv) any laws which implement any of the foregoing laws; (v) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing laws; and
- Protected Data means the personal data that you and/or we process in connection with any Flow Agreement.
Data protection roles. You and we agree and acknowledge that for the purposes of the Data Protection Legislation, each party to the Flow Agreement acts as an independent data controller in relation to the Protected Data.
Compliance with Data Protection Legislation. You warrant to us that you will process the Protected Data in compliance with the Data Protection Legislation.
Right to disclose Protected Data. You warrant to us that you have the legal right to disclose all Protected Data that you do in fact disclose to us under or in connection with the relevant Flow Agreement, and that the processing of that Protected Data by us for the purposes of providing the Flow Services to you and your Provider (if you are a Buyer) or to you and your Buyer (if you are a Provider) will not breach any Data Protection Legislation.
Parties’ obligations. Each party to the relevant Flow Agreement agrees that it will:
- ensure that it has appropriate technical and organisational measures in place to protect the Protected Data under its control;
- ensure that it will transfer the Protected Data provided to it by the other party between jurisdictions only where such transfer is undertaken in accordance with the Data Protection Legislation;
- notify the other party without undue delay in the event that it receives a request, complaint or other communication from a data subject of the Protected Data or a regulatory authority that is addressed to or intended for the other party, and provide reasonable assistance to that other party where required unless prevented from doing so by law or regulation;
- notify the other party without undue delay if they are required to notify a supervisory authority or data subject of the Protected Data under the Data Protection Legislation of any personal data breach affecting the Protected Data; and
- provide such information as may reasonably be requested by the other party from time to time concerning the measures that it has taken to ensure compliance with its obligations under the relevant Flow Agreement and the Data Protection Legislation.
LIMITATION OF LIABILITY
Scope of limitations in this clause. The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the relevant Flow Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
Deliberate default. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
Unlimited liability. Nothing in these Terms shall limit any liability:
- which cannot be legally limited, including liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- clause 3.3(c) (Your default) or clause 13 (Indemnity); or
- your Flow Commission payment obligations under the relevant Flow Agreement.
Liability cap. Subject to clause 12.2 (Deliberate default) and clause 12.3 (Unlimited liability), the total liability of a party to a Flow Agreement to the other party in contract, tort or otherwise, for any loss or damage suffered by the innocent party arising from or in connection with that Flow Agreement, however the loss or damage is caused (including our negligence but not fraud or other deliberate breach of duty) shall not exceed the Flow Commission paid or due and payable to us under that Flow Agreement in the period of 12 months prior to the first event giving rise to the claim or in the first 12 months of that Flow Agreement if the event giving rise to the claim occurs in the first 12 months of that Flow Agreement.
Specific heads of excluded loss. Subject to clause 12.2 (Deliberate default) and clause 12.3 (Unlimited liability), this clause specifies the types of losses that are excluded:
- loss of profits (other than the Flow Commission due under the relevant Flow Agreement);
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
Exclusion of statutory implied terms. To the maximum extent permitted by applicable law and subject to clause 12.2 (Deliberate default) and clause 12.3 (Unlimited liability), we exclude all representations and warranties relating to the subject matter of these Terms.
You hereby indemnify us, and undertake to keep us indemnified, against:
- any and all losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) incurred or suffered by us and arising directly or indirectly out of:
- any breach by you of any provision of these Terms; and
- any claim brought against us for infringement of a third party’s rights (including any Intellectual Property Rights arising out of or in connection with our receipt of use of Your Materials in accordance with clause 8.2 (Grant of licence));
- all losses, claims, damages, costs, liabilities, fines, sanctions, demands, compensation paid to data subjects (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute) arising out of or in connection with any breach by you of your obligations under clause 11 (Data protection); and
- any VAT liability or other tax liability that we may incur in relation to your failure to pay or to register to pay any VAT or other tax properly due in any jurisdiction.
DURATION AND TERMINATION OF THE FLOW AGREEMENT
Duration of the Flow Agreement. Unless terminated early in accordance with this clause 14, the Flow Agreement between you and us shall continue until all Provider Services under a Provider Agreement have been supplied and invoiced upon which the Flow Agreement will automatically expire.
Termination by either party for cause. Without affecting any other right or remedy available to it, either you or we may terminate a Flow Agreement with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of that Flow Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of that Flow 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 that Flow Agreement;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(c) or 123(2) of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
- an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
- the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- 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 14.2(c) to clause 14.2(j) (inclusive);
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of that Flow Agreement is in jeopardy.
Termination by us for cause. Without limiting the generality of clauses 14.2(a) and 14.2(b) above, and without affecting any other right or remedy available to us, we may terminate a Flow Agreement with immediate effect by giving you written notice if:
- you fail to pay any amount due under that Flow Agreement on the due date for payment and remain in default not less than 14 days after being notified in writing to make such payment; and/or
- the Buyer or Provider terminate the relevant Provider Agreement before the expiry of its duration as set out in the Minimum Terms shared with us.
Termination by us for convenience. We may terminate a Flow Agreement with you at any time in our sole discretion for convenience by giving to you at least 30 days’ written notice of termination. If we terminate a Flow Agreement under this clause, you will not be liable to us for any Flow Commission accrued after the date of our notice of termination and clauses 15.2 (Early termination payments), 15.3 (Buyer’s non-dealing covenants) and 15.4 (Provider’s non-dealing covenants) will not apply.
CONSEQUENCES OF TERMINATION
Obligations on termination or expiry. On termination or expiry of a Flow Agreement for any reason you must immediately pay to us all of our outstanding unpaid invoices (including for the avoidance of doubt, in respect of Provider Charges) and, in respect of the Flow Commission which has accrued on or before the date of the expiry or termination of that Flow Agreement for which no payment has been received and no invoice has been submitted, we may submit an invoice, which shall be payable immediately on receipt.
Early termination payment. You confirm and acknowledge that we agreed to structure our charges for the Flow Services on a commission basis with payments due at the frequency and/or on the dates aligned with those due under the relevant Provider Agreement to assist the Buyer and the Provider with their cash flow. As such, you agree that we have a legitimate business interest in the Flow Agreement and the relevant Provider Agreement remaining in place for their agreed duration (including, for the avoidance of doubt, any extensions, renewals and replacements of the relevant Provider Agreement between the relevant Buyer and Provider). Consequently, you agree that if you terminate the Flow Agreement and/or the relevant Provider Agreement early in breach of the terms of that Flow Agreement or that Provider Agreement (as applicable), you will remain liable to us for:
- all Flow Commission payments due to us under clause 6 (Provider Charges and Flow Commission); and
- by way of compensation, all Flow Commission payment that would have been due to us under clause 6 (Provider Charges and Flow Commission) over a period equal to the unexpired residue of the relevant Flow Agreement and/or Provider Agreement less such discount as we may reasonably apply to such balance in our discretion to reflect savings in our overheads.
Buyer’s non-dealing covenants. If you are a Buyer, you covenant with us that you shall not procure or receive any e-commerce services from any Provider (Introduced by us to you or to whom we Introduced you) within the period of 12 months after the date on which the last (in terms of duration) Flow Agreement between you and us expires or is terminated:
- by you otherwise than in accordance with clause 14.2 (Termination by either party for cause) or clause 16.2 (Force majeure); or
- by us under clause 14.2 (Termination by either party for cause), clause 14.3 (Termination by us for cause) or clause 16.2 (Force majeure),
- save that you and we shall be free to negotiate your exit from this covenant on such terms as you and we may mutually agree in writing.
Provider’s non-dealing covenants. If you are a Provider, you covenant with us that you shall not offer or provide any e-commerce services to any Buyer (Introduced by us to you or to whom we Introduced you) within the period of 12 months after the date on which the last (in terms of duration) Flow Agreement between you and us expires or is terminated:
- by you otherwise than in accordance with clause 14.2 (Termination by either party for cause) or clause 16.2 (Force majeure); or
- by us under clause 14.2 (Termination by either party for cause), clause 14.3 (Termination by us for cause) or clause 16.2 (Force majeure),
save that you and we shall be free to negotiate your exit from this covenant on such terms as you and we may mutually agree in writing.
- On termination or expiry of a Flow Agreement, the following clauses shall continue in force: clause 3.3 (Your default), clause 3.4 (Behaviour of users), clause 5.2 (No representations),), clause 7.6 (Financial compliance), clause 7.7 (Set-off rights), clause 9 (Publicity and promotion), clause 10 (Confidentiality), clause 11 (Data protection), clause 12 (Limitation of liability), clause 13 (Indemnity), clause 15 (Consequences of termination of a Flow Agreement), clause 16.2 (Force majeure), clause 16.4 (Waiver), clause 16.6 (Entire agreement), clause 16.11 (Governing law), clause 16.12 (Jurisdiction), and clause 17 (Definitions and interpretation).
- Termination or expiry of a Flow Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of that Flow Agreement which existed at or before the date of termination or expiry.
Further Assurance. You must from time to time, at your own cost, do or procure the doing of all such acts and things, and execute or procure the execution of all such documents in a form reasonably satisfactory to us, which we may reasonably require for the purpose of giving full effect to the Flow Agreement.
Force majeure. Neither party to the Flow Agreement will be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the party so delaying (Delaying Party), and the Delaying Party shall be entitled to a reasonable extension of time for the performance of such obligations. If the Delaying Party is prevented, by such circumstances beyond its reasonable control, from performance of its obligations for a continuous period in excess of 3 months and such prevention substantially affects the operation of the Flow Agreement, the other party shall have the right to terminate the Flow Agreement upon giving 30 days’ written notice of such termination to the Delaying Party, in which case neither party shall have any liability to the other except that rights and liabilities accrued prior to such termination shall continue to subsist.
Variation. Save as provided in clause 1.5 (Changes to these Terms), no variation of the Flow Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- A waiver of any right under the Flow Agreement is only effective if it is in writing and it applies only to the party to the Flow Agreement to whom the waiver is addressed and to the circumstances for which it is given.
- Unless specifically provided otherwise, rights arising under the Flow Agreement are cumulative and do not exclude rights provided by law.
- If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties to these Terms.
- These Terms represent the whole agreement and understanding between the parties to the Flow Agreement and supersedes and extinguishes all other arrangements, agreements, understandings, statements, representations, warranties, undertakings or promises (whether in writing or not) made between, by or on behalf of the parties prior to entering into the Flow Agreement except to the extent expressly repeated in these Terms (pre-contractual statements) including any heads of agreement related to the subject matter hereof.
- Without prejudice to clause 16.6(a), each party to the Flow Agreement warrants to the other that, in entering into the Flow Agreement, it has not relied on and shall have no remedy in respect of any pre-contractual statement. Nothing in this clause 16.6 is intended to limit either party’s liability for fraud or fraudulent misrepresentation.
- We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Flow Agreement.
- You must not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Flow Agreement.
No partnership. Nothing in the Flow Agreement is intended to or shall operate to create a partnership or joint venture between the parties to the Flow Agreement, and neither party shall have the authority to legally bind the other in any way.
Third-party rights. The Flow Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
- Any notice given under the Flow Agreement must be in writing and must be: delivered personally or sent by recorded first-class post to the party to whom it is being given at its registered office (if a company) or its principal place of business (in all other cases), or sent by email to our email address at firstname.lastname@example.org or to the user at the email address provided by the user on the Registration Form or such other email address as one party may notify to the other in writing from time to time.
- A notice shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- Governing law. The Flow 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 law of England.
- Jurisdiction. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Flow Agreement or its subject matter or formation (including non-contractual disputes or claims).
DEFINITIONS AND INTERPRETATION
Definitions. In these Terms:
- Business Day means any day which is not a Saturday, Sunday or public holiday in England;
- Buyer has the meaning given in clause 1.4 (Buyers and Providers);
- Flow Agreement has the meaning given in clause 1.2 (Flow Agreement);
- Flow Commission means the commission payments due by you to us under clause 6 (Provider Charges and Flow Commission);
- Flow Services has the meaning given in clause 3.1 (Flow Services);
- Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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;
- Introduction means any of the following, whether verbally or in writing: the provision of the Buyer’s name and/or contact details to the Provider; the provision of the Provider’s name and/or contact details to the Buyer; and/or the provision of the Provider’s Proposal to the Buyer, and Introduce, Introducing and Introduced should be construed accordingly;
- Minimum Terms has the meaning given in clause 4.3 (Terms of supply of the Provider Services);
- Project Management Tool means Basecamp or such other online or offline project management tool as we may agree with the users to use for the purpose of project managing the Provider Services (including sharing and tracking project progress, communication, milestones and sign-off);
- Proposal has the meaning given in clause 4.1 (Proposal);
- Provider has the meaning given in clause 1.4 (Buyers and Providers);
- Provider Agreement means an agreement (whether written or verbal) between a Buyer and a Provider for the purchase by the Buyer and supply by the Provider of the Provider Services by the Provider to the Buyer;
- Provider Charges means all amounts (fees, commission payments, and any other charges) payable by the Buyer to the Provider under the Provider Agreement in respect of the supply of the Provider Services.
- Provider Services means the e-commerce services offered or supplied by a Provider to a Buyer following our Introduction of the Provider to the Buyer or of the Buyer to the Provider;
- Registration Form means either the enquiry form on our website which Buyers complete to submit their Provider Service requirements to us (in accordance with clause 1.2 (Flow Agreement)); or the registration form which Providers complete on our website if they wish to be Introduced to Buyers (in accordance with clause 1.2 (Flow Agreement));
- Terms has the meaning given in clause 1.1 (What these Terms cover);
- user, you, yours has the meaning given in clause 1.4 (Buyers and Providers);
- we, us, our has the meaning given in clause 1.3 (Who we are); and
- Your Materials means all materials, drawings, information, data, requirements, proposals, and specifications, supplied by you to us in connection with a Flow Agreement.
Interpretation. In these Terms:
- Clause headings are for convenience only and shall not affect the interpretation of these Terms.
- Unless the context otherwise requires, words in the singular shall include the plural, and in the plural shall include the singular.
- References to writing or written shall include emails (but not faxes),
- References to a person include any company, partnership or unincorporated association (whether or not having separate legal personality) and references to a company include any company, corporation or other body corporate (wherever and however incorporated or established). The expression subsidiary has the meaning given in the Companies Act 2006;
- Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- Unless expressly provided otherwise, all covenants, undertakings and other obligations given or entered into by the Provider or the Buyer under this agreement for the provision of the Flow Services are given or entered into on a joint and several basis. Specifically, the Provider and the Buyer shall be jointly and severally liable to pay to us the Flow Commission. We may seek payment of any Flow Commission due to us under these Terms against the Buyer, or the Provider, or both the Buyer and the Provider, in our sole discretion. Without limiting the generality of the foregoing, if for any reason the Buyer fails to pay to us any invoiced Provider Charges when they become due, we reserve the right to invoice the Provider for the Flow Commission, and any such invoice shall be payable on delivery