Terms & Conditions
Fluent Technology, Flexi-Grant® Subscription Agreement
(Version Date 21 February 2018)
These terms and conditions (the Agreement) outline the terms upon which Fluent Technology Limited (Fluent) supplies the Flexi-Grant software and services to its customers (Customers).
Flexi-Grant is an innovative grant software solution designed specifically for organisations administering and allocating grants and funds. Nearly all of Fluent’s Customers will find that Flexi-Grant as provided will meet their organisational needs. However, if a Customer requires an enhanced service, Fluent is always happy to discuss any such requests. For more information on enhanced services, please see the following:
- Additional Licences e.g. additional concurrent users (clause 3);
• Enhanced support (clause 4.5);
• Bespoke implementation or training services (clause 5.1); and
• Any other enhanced services or bespoke customisation of the Software (clause 3.5)
Please note that annual fees for Flexi-Grant® are due from the date identified as the Commencement Date for this contract; initial implementation fees are due on a monthly basis, in and around the end of each calendar month. For more information on payment terms, please see clause 6 – Prices, Taxes and Payments.
1.1 This Agreement uses a number of terms which have a specific meaning. The initial letter of each term is capitalised to indicate that there is a specific meaning. This clause 1 sets out an explanation of those terms. In this Agreement the following words shall have the following meanings:
Additional Licence means any further Flexi-Grant licences purchased in addition to the licences recorded in the User Subscription section of the Contract Information Sheet at the end of this document.
Applicant Users means end users of the Software, who use the Software to apply for grants and funding offered or managed by the Customer (and who have not been registered by the Customer as Registered Users). A maximum of 500 concurrent applicant users is permitted at any time.
Bespoke ImplementationServices means the services described at clause 5.1.
Commencement Date means the date stated as such in the Contract Information Form, upon which Fluent commences the implementation and set up of the Software. This is not the same as the Go Live date; in all likelihood it will be in advance of the Go Live date.
Confidential Information shall have the meaning given at clause 9.1.
Configuration Document means the description of the solution detailed on completion of the discovery phase of the project and will include process flowcharts, descriptions of any functions required in the solution and Fluent’s ITT response.
Contract Information Form means the contract information form agreed by Fluent and each Customer, which incorporates the terms of this Agreement (in the format as detailed in Schedule 1 of this Agreement, as the same format may be changed by Fluent from time to time).
Core user means end users of the Software, with access to the private contact and grant management modules of Flexi-Grant®. These are typically customer staff involved in administering grants. The maximum number of concurrent core users permitted on the system is defined on the Contract Information Sheet later in this agreement.
Customer IPRs means any Intellectual Property Rights belonging or licensed to the Customer, the use of which by Fluent is required in order to enable Fluent to provide the Flexi-Grant® Services. Customer IPRs do not include any Intellectual Property Rights licensed to the Customer by Fluent under the terms of this Agreement.
Data Controller shall have the meaning given to it in the GDPR.
Data Processor shall have the meaning given to it in the GDPR.
Discloser means a Party disclosing Confidential Information, as described at clause 9.1.
Documentation means the document made available to the Customer by Fluent from time to time which sets out a description of the Flexi-Grant Services and the user instructions for the Flexi-Grant® Services.
Data Protection Legislation shall mean the Data Protection Act 1998 (for so long as it is in force) and the General Data Protection Regulation (EU Regulation 2016/679) (GDPR).
Extra Services means the services described at clause 3.5.
Fees means the fees payable by the Customer to Fluent in accordance with this Agreement, as set out in the Contract Information Form.
Flexi-Grant® Services means the User Subscription, Implementation Services and Bespoke Implementation Services provided by Fluent to the Customer under this Agreement and summarised in the Contract Information Form. The term Flexi-Grant Services shall include, and shall be deemed to refer to, the Documentation.
Go Live Date means the date upon which the implementation and set up of the Software is complete.
Implementation Services means the services described in clause 5.1.
Initial Term means the period of one calendar year from the Commencement Date.
Intellectual Property Rights means patents, patent applications, and patent rights, copyrights, copyright applications, and copyright registrations, trademarks, trademark applications, trademark registrations, and trademark rights, trade secrets, and all other intellectual property and proprietary information rights as may exist now or hereafter come into existence, all modifications, continuations, renewals, and extensions of any of the foregoing, and all claims, actions, causes of action, damages, costs, expenses, profits, penalties, recoveries, and remedies relating to any past, present, or future infringement of any of the foregoing, arising under the laws of any country, state, or jurisdiction in the world.
Normal Business Hours means Monday to Friday, 9am – 5pm (UK time), excluding UK public and bank holidays.
Parties means the parties to this Agreement and Party shall mean either of them.
Personal Data shall have the meaning given to it in the GDPR.
Recipient means a Party to whom Confidential Information is disclosed in accordance with clause 9.
Registered User means someone authorised by the Customer to use the Flexi-Grant Services as a registered and accredited User in accordance with clause 2.4.
Renewal Period means the 12-month period described in clause 10.1.
Reviewer user means any user who has solely been granted access to the Flexi-Grant® software so they can complete external reviews of applications via the reviewer dashboard. A maximum of 500 concurrent reviewer users is permitted at any time.
Schedule means a schedule to this Agreement.
Software means the online software applications provided by Fluent as part of the Flexi-Grant® Services.
Standard Implementation Services means the services described at clause 5.1.
Standard Rates means the standard rates charged by Fluent from time to time for work done on a time and material basis.
Term means the term of this Agreement, being the Initial Term and any subsequent Renewal Periods.
Third Party means any third party licensing or providing directly or indirectly to Fluent any element of the Software (including any component service, software, hardware or facility).
Third Party IP means any intellectual property in any element of the Software (including any component service, software, hardware or facility), belonging to or licenced to Fluent by a Third Party.
Third Party Licence means any agreement between Fluent and a Third Party
User shall mean any user of the Software (and shall include Registered Users and Applicant Users).
User Subscription means the usage restrictions (e.g. permitted number of concurrent users) on the Customer’s subscription to the Flexi-Grant Services, as stipulated in the Contract Information Form.
1.2 In this Agreement (except where the context otherwise requires) a reference to a clause means a reference to a clause of this Agreement. The clause headings are included for convenience only and shall not affect the interpretation of this Agreement. Use of the singular includes the plural and vice versa and use of any gender includes the other genders. Any reference to a statute, statutory provision or subordinate legislation (legislation) shall (except where the context otherwise requires) be construed as referring to such legislation as amended and enforced from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation and any former legislation which it re-enacts, consolidates or enacts in rewritten form. Any phrase introduced by the term including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. SOFTWARE LICENCE TERMS
2.1. Provided that the Customer complies with this Agreement, Fluent:
2.1.1. gives the Customer a personal, non-exclusive, non-transferable and non-assignable licence for the Term to allow Users to access the Flexi-Grant® Services;
2.2. The Customer shall be solely responsible for its actions and the actions of all Registered Users while using the Flexi-Grant® Services. The Customer shall (and shall procure that any and all Registered Users shall):
2.2.1. not attempt to duplicate, modify or distribute any portion of the Software or Documentation;
2.2.2. not reverse engineer, de-compile, disassemble, or adapt any portion of the Software, except as specifically permitted by applicable law (but then only if and to the extent that the Customer first notifies Fluent of the Customer’s requirements regarding the inter-operability or functional compatibility before engaging in any such activity, and gives Fluent the opportunity to provide the Customer with the information necessary to achieve such inter-operability or compatibility);
2.2.3. not use the Software to provide software related services to third parties (including in the operation of a service bureau);
2.2.4. not attempt to obtain, or assist others in obtaining, unauthorised access to the Software;
2.2.5. not remove any proprietary notices from the Software;
2.2.6. abide by all local and international laws and regulations applicable to the Customer’s use of the Software, including all laws regarding the transmission of technical data exported from the United Kingdom through the Software;
2.2.7. not upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Software or another’s computer;
2.2.8. ensure that the administration functionality of the Software is used in a proper manner by competent trained employees only or by persons under their supervision;
2.2.9. not transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability;
2.2.10. not in any circumstances use, nor allow any third party to use, any “webcrawler”, “crawler”, “spider” or similar technology in relation to the Software; or
2.2.11. comply with all regulations, policies and procedures of networks connected to the Software.
2.3. The Customer acknowledges and agrees that Fluent neither endorses the contents of any User communications nor assumes any responsibility for any threatening, libellous, obscene, harassing or offensive material contained in the Flexi-Grant® Services, any infringement of third party intellectual property rights arising from, or any crime facilitated by the Flexi-Grant® Services.
2.4. Fluent and the Customer acknowledge that the following terms shall apply in relation to any User (who is not an Applicant User) who the Customer authorises to use the Flexi-Grant® Services as a registered and accredited User with a log-in ability and an account and/or reviewer privileges as applicable (this type of User shall be referred to as a Registered User):
2.4.1. the licence granted in clause 2.1.1 is subject to the Customer complying with the usage restrictions provided by the User Subscription;
2.4.2. Fluent shall issue to the Customer, or shall authorise a Customer administrator to issue, a password for each Registered User and will keep such passwords confidential and will not disclose them to third parties, provided that:
220.127.116.11. the Customer shall procure that each Registered User shall keep its password confidential, and the Customer shall ensure that each password is used only by the authorised Registered User;
18.104.22.168. the Customer is entirely responsible for any and all activities of Registered Users;
22.214.171.124. the Customer agrees immediately to notify Fluent upon becoming aware of any unauthorised use of any password of a Registered User or any other breach of security known to the Customer;
126.96.36.199. the Customer shall permit Fluent to audit the Customer’s use of the Flexi-Grant Services in order to establish the Customer’s compliance with clause 2.4.1. If any such audit reveals that the Customer has exceeded the User Subscription, the Customer agrees it may be required, to purchase Additional Licences in accordance with Clause 3.4.
188.8.131.52. Fluent shall have no liability for any loss or damage arising from the Customer’s failure to comply with the requirements detailed in this paragraph 2.4.2.
3. EXTRA SERVICES AND ADDITIONAL LICENCES
3.1 The Customer may, from time to time during the Term, increase the permitted number of concurrent users accessing Flexi-Grant at any time by purchasing an upgrade to its User Subscription (i.e. Additional Licences). If the Customer wishes to purchase Additional Licences, the Customer shall notify Fluent in writing and Fluent will confirm the cost of the Additional Licences in writing.
3.2 If the Customer accepts the cost of the Additional Licences, the Customer shall, within thirty (30) calendar days on receipt of Fluent’s invoice, pay Fluent the relevant fees. If such a request is purchased by the Customer part way through the Initial Term or any Renewal Periods), such fees shall be pro-rated for the remainder of the Initial Term or the then current Renewal period, as applicable.
3.3 Subject to clause 184.108.40.206, if the Customer exceeds the User Subscription without purchasing an upgrade in accordance with clause 3.1, Fluent reserves the right to evaluate the Customer’s requirement for an Additional Licence. The Customer will then have the option to either:
3.3.1 pay Fluent’s invoice calculated in accordance with clause 3.2, as if the Customer has requested such an Additional Licence; or
3.3.2 decrease its User numbers to comply with the original User Subscription.
3.4 Notwithstanding clause 3.3, if the Customer repeatedly exceeds the User Subscription, Fluent reserves its right to either terminate or suspend the Flexi-Grant® Services until the invoice at 3.3.1 is paid. Fluent may exercise this right entirely at its own discretion and is without prejudice to any other remedies or damages to which Fluent may be entitled.
3.5 Fluent encourages the Customer to use the Flexi-Grant® Services as provided. Where the Customer requires any extra services e.g. additional training, bespoke reports etc which falls outside the scope of the Flexi-Grant® Services detailed on the Contract Information form, the Customer shall issue a written request to Fluent. If Fluent accepts the request, it shall provide the Customer with a cost estimate and timetable for the services required (such services, Extra Services). Extra Services may also be described in the Contract Information Form.
3.6 Upon notification of the Customer’s approval, Fluent shall commence the provision of the Extra Services in accordance with the timetable. The Customer shall pay Fluent in accordance with the agreed cost estimate and the terms of this Agreement. The rates shall not be in any case more than Fluent’s Standard Rates.
4.1 Fluent shall, from the Commencement Date and for the duration of the Term, provide the Flexi-Grant® Services to the Customer on and subject to the terms of this Agreement.
4.2 Fluent will use commercially reasonable endeavours to ensure that the Service is available to the Customer 99.5% of the time during Normal Office Hours in any one calendar month.
4.3 From time to time Fluent may need to carry out scheduled maintenance on the Service, which may require its temporary suspension. Any such suspension shall not constitute non-availability for the purposes of clause 4.2 above, provided that Fluent uses reasonable endeavours to keep disruption to a minimum, provide reasonable notice to the Customer and to carry out work during periods of low activity.
4.4 Fluent will, as part of the Flexi-Grant® Services, provide the Customer with Fluent’s standard customer support services during Normal Business Hours. Such support comprises of email support to the Customer’s system administrators to provide help and assistance with both technical queries and system functional queries. For the avoidance of doubt Fluent shall not provide support services to Applicant Users, unless specifically agreed in writing by Fluent and paid for in full by the Customer. Fluent will respond to all support requests as quickly as is reasonably possible and aims to support the following target response times (unless otherwise agreed by Fluent and the Customer) once a request from the Customer has been recorded:
|Priority||Initial Target Response||Target Resolution|
|A – Critical||Within 30 mins||Within 2 hours thereafter|
|B – Significant impact||Within 2 hours||Within 4 hours thereafter|
|C – Minor impact||Within 4 hours||Within 24 hours thereafter|
|D – Low priority||Within 8 hours||By agreement.|
‑ Critical (major business impact)
|Hosted System Defect (e.g. Hosted System down) with most serious business-critical impact requiring urgent resolution via a Workaround or Patch.
‑ Major (significant business impact)
|Hosted System Defect (e.g. major features are unavailable) with significant business critical-impact requiring resolution via a Workaround or Patch until a Permanent Fix can be applied.
|Hosted System Defect with significant but not business critical-impact that can be addressed via a Workaround or in the next planned release.
|Hosted System Defect with some business impact (e.g. important features unavailable but can be resolved via a Workaround or in a future Release).
4.5 If the Customer requires support outside of Normal Business Hours or outside the scope of clause 4.4, the Customer may purchase enhanced support services separately at Fluent’s Standard Rates.
5.1. As part of the Flexi-Grant® Services, Fluent offer standard implementation and training packages to the Customer (Standard Implementation Services) to deliver the Flexi-Grant® software as defined in the agreed configuration document. If the Customer requires any implementation or training services outside of the scope of the Standard Implementation Services, Fluent will agree with the Customer, the scope, timing and content of any additional implementation services required by the Customer. Any such non-standard implementation services which are agreed by both parties in writing shall be referred to as the Bespoke Implementation Services and the scope and cost of these will be defined using the agreed change control procedure. The Standard Implementation Services, together with any agreed Bespoke Implementation Services shall be referred to as the Implementation Services.
5.2. The Customer acknowledges that Fluent’s ability to provide the Implementation Services is dependent upon:
5.2.1. the reasonably full and timely co-operation of the Customer (which the Customer agrees to provide);
5.2.2. the Customer’s fulfilment of any requirements imposed on it as part of the agreement of the scope of the Implementation Services; and
5.2.3. the accuracy and completeness of any information and data the Customer provides to Fluent.
5.3. The Customer acknowledges and agrees as reasonable that:
5.3.1. where the Customer’s failure to perform any task required of it by clause 5.2, and/or the Customer’s delay or unreasonable withholding of approval, prevents Fluent from fulfilling the Implementation Services, Fluent shall be relieved from its obligation to provide the Implementation Services. Upon the Customer’s subsequently remedying any such failure, delay or unreasonable withholding of approval the parties will act in good faith and use all reasonable endeavours to agree a new timetable for the provision of the Implementation Services. Upon such new timetable being agreed, Fluent and the Customer shall use all reasonable endeavours to comply with it provided that to the extent that Fluent, in meeting the requirements of the new timetable, reasonably determines that it needs to deploy extra resources to meet such timetable, the Customer shall pay Fluent in full for such extra resources on a time and materials basis at Fluent’s Standard Rates applicable at that date; and
5.3.2 where the Customer requires Fluent to provide any resources or services as part of the Bespoke Implementation Services, Fluent shall charge for any such resources or services on a time and materials basis at Fluent’s Standard Rates applicable at that date.
6. PRICES, TAXES AND PAYMENT
6.1. The Customer shall pay the Fees to Fluent in accordance with this clause 6. Fees for any Extra Services will be paid in amounts and frequency as agreed in accordance with clause 3.6.
6.2. Fees are fixed for the Initial Term. Fluent may increase the rates for subsequent Renewal Periods by notification to the Customer no later than one month before the end of the Initial Term or Renewal Period, provided that any price adjustments are subject to a cap of the increase (if any) in the all-items retail price index published by the Office for National Statistics. Fluent reserves the right to increase its Standard Rates at any time during the Term of the Agreement.
6.3. The Customer will pay each invoice for Fees and expenses within thirty (30) calendar days on receipt of the invoice. Time shall be of the essence in relation to the Customer’s obligation to pay, and in the event that the Customer fails to pay any sum when due:
6.3.1. Fluent may with prior written notice suspend its obligations under this Agreement (and any such suspension will not constitute a termination of the Agreement). Fluent may require the Customer to pay a re-connection fee to recommence the provision of the Flexi-Grant® Services and Documentation, together with all relevant Fees); and/or
6.3.2. Fluent may by written notice immediately terminate the licence granted at clause 2.1.1 of this Agreement, whereupon the Customer will promptly cease use of the Flexi-Grant® Services and return any Fluent property to Fluent. Fluent shall have no liability for any such termination; and/or
6.3.3. Fluent may charge the Customer interest on sums due in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, compounded monthly, from the due date for payment until payment has been made, together with any additional costs and expenses (including any reasonable legal costs) incurred by Fluent in recovering the sums due from the Customer.
6.4. All Fees and any additional charges shall be exclusive of value added tax or any other tax, duty, levy, fee or charge which shall be added to invoices at the rate applicable at the date of invoice and which shall be payable by the Customer.
7. INTELLECTUAL PROPERTY RIGHTS
7.1. Fluent shall licence the use of the Flexi-Grant® Services to the Customer in accordance with the provisions of clause 2 of this Agreement. The Customer acknowledges that it hereby acquires only the right to access and use the Flexi-Grant® Services in accordance with this Agreement, and that all Intellectual Property Rights in the Flexi-Grant® Services (including the source code of the Software) and (save to the extent expressly agreed by Fluent) all Intellectual Property Rights in the provision of any Extra Services shall remain vested in Fluent or where relevant Fluent’s licensors. Nothing in this Agreement shall confer on the Customer or any User any right, title or interest in the Flexi-Grant® Services (except the rights of use as set out in this Agreement), or to any source code within the Software.
7.2. Fluent warrants that the Customer’s use of Software, excluding any Third Party IP, will not infringe the Intellectual Property Rights of any third party.
7.3. For the avoidance of doubt, Fluent shall have no liability in this regard in the event of any claim of infringement arising from:
7.3.1. Fluent’s compliance with the designs, specifications, instructions, or technical information of the Customer or any third party expressly authorised by the Customer to provide such instruction or information to Fluent;
7.3.2. modifications made by the Customer or a third party to the Flexi-Grant Services; or
7.3.3. the Customer’s non-compliance with this Agreement.
7.4 .The Customer warrants that it is able to grant to, and hereby grants to, Fluent for the Term a non-exclusive, world-wide, royalty-free licence to use the Customer’s IPRs to the extent necessary for Fluent to perform its obligations under the Agreement. Customer warrants that Fluent’s use of the Customer’s IPRs shall not infringe the IPR of any third party.
8. WARRANTIES AND LIABILITY
8.1 Fluent shall not be liable for any breach of this Agreement (including any breach of the warranties in this clause 8) for any breach or loss suffered by the Customer or other third party if and to the extent that such breach and/or loss arises from the following:
8.1.1 the incorrect use, abuse or corruption of the Software by the Customer;
8.1.2 any use of or access to the Flexi-Grant Services by the Customer which is not expressly permitted by this Agreement;
8.1.3 the act or omission of any third party provider of any product, service or solution, provided that Fluent shall have the obligation to use commercially reasonable efforts to mitigate the effect of such act or omission as far as possible;
8.1.4 any failure of the internet and/or any software or equipment of the Customer or any third party which enables access to the Software; and/or
8.1.5 for any loss, expense, cost, liability or sum incurred (whether directly or indirectly) by the Customer and/or any third party as a result of:
220.127.116.11 the performance or failure to perform of any third party provider of any product, services or solution, provided that Fluent shall have the obligation to use commercially reasonable efforts to mitigate the effect of such performance or failure to perform as far as possible;
18.104.22.168 any act or omission, or operation failure, of any website (including any software used in such website) which is co-hosted with the Software and/or with any website through which the Customer accesses the Software; and/or
22.214.171.124 any unauthorised access to and/or use of any of Fluent’s websites and/or the Software by third party (whether by automated means or not), provided that Fluent has taken all commercially reasonable security precautions to prevent unauthorised access to the Flexi-Grant® Services.
8.2 Fluent warrants to the Customer that:
8.2.1 Fluent will perform the Flexi-Grant® Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;
8.2.2 the Flexi-Grant® Services will conform with the configuration document as agreed between the Customer and Fluent; and
8.2.3 the Flexi-Grant® Services will be provided in accordance with all applicable legislation from time to time in force.
8.3 Without prejudice to any other remedy, if any part of the Flexi-Grant® Services is not performed in accordance with this Agreement then the Customer shall be entitled where appropriate to require Fluent promptly to re-perform or replace the relevant part of the Flexi-Grant® Services without additional charge to the Customer.
8.4 Fluent makes no warranty or representation not expressly set forth in this Agreement. To the maximum extent permitted by law, and except for the warranties expressly set forth herein, Fluent disclaims any and all other warranties and conditions, whether express, implied, or statutory, including but not limited to implied warranties (if any) of merchantability, fitness for a particular purpose and satisfactory quality.
8.5 Fluent’s liability will be limited as follows:
8.5.1 nothing in this Agreement shall limit Fluent’s liability for death or personal injury caused by the negligence of Fluent or its employees, or for any liability which may not be limited under governing law;
8.5.2 subject to clause 8.5.1 above:
126.96.36.199 Fluent shall not be liable in contract, tort, or in relation to breach of statutory duty or any other right of action for the losses, damages, costs or expenses for any special, incidental, indirect or consequential losses (whether or not of the type specified in 188.8.131.52 below); and
184.108.40.206 Fluent expressly excludes the following:
220.127.116.11.1 loss of revenues, profits, contracts, goodwill, reputation, business, use of money and/or anticipated savings;
18.104.22.168.2 loss of use of downtime; and
22.214.171.124.3 damages relating to the procurement by the Customer of any substitute products or services.
8.5.3 subject to clause 8.5.1 above, the aggregate liability of Fluent in respect of any loss, expenses or damage suffered by the Customer and arising out of or in connection with this Agreement shall not exceed four times the amount of the total Fees actually paid in year 1 and 2.5 times the amount of the total fees in subsequent years in accordance with this Agreement by the Customer to Fluent (and for the avoidance of doubt the Customer will act at all times to mitigate any such loss or damage).
8.6 The Customer agrees and acknowledges:
8.6.1 that it is in a better position than Fluent to foresee and evaluate any potential damage or loss which the Customer may suffer in connection with the Software and/or the Flexi-Grant® Services;
8.6.2 that the Fees payable by the Customer have been calculated on the basis that Fluent shall exclude liability in accordance with the provisions of this clause 8;
8.6.3 the Customer assumes sole responsibility for results obtained by the use of the Flexi-Grant® Services by the Customer and any User, and for the conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Fluent by the Customer in connection with the Flexi-Grant® Services, or any actions taken by Fluent at the Customer’s direction; and
8.6.4 the Flexi-Grant Services are provided to the Customer on an “as is” basis.
8.7 In relation to Third Parties, the Customer acknowledges and accepts as reasonable that:
8.7.1 Fluent excludes all liability to the maximum extent permitted by applicable law for any loss whatsoever incurred by the Customer as a result of any act or omission of any Third Party, or of the failure, suspension and/or termination of any facility or service provided by any Third Party, or the breach by any Third Party of any relevant Third Party Licence (each such act, omission, failure, suspension or termination a Third Party Breach); and
8.7.2 any Third Party Breach shall not constitute a breach by Fluent of the provisions of this Agreement.
8.8 Each provision of this clause 8 shall be construed separately and shall continue and survive even if for any reason one or other of those provisions is held invalid or unenforceable in any circumstances.
9. CONFIDENTIALITY AND DATA PROTECTION
9.1 In relation to either Party, Confidential Information as used in this Agreement shall mean any and all information relating to that Party (or to any holding company and/or subsidiary of that Party, as those terms are defined by the Companies Act 2006) which is disclosed before or after the Commencement Date by that Party (Discloser) to the other Party (Recipient), and which is provided, either directly or indirectly, in writing, orally or by inspection, and being any and all information which is specified as confidential or which a reasonably prudent person should know is expected to be treated as confidential (including financial information, grant applications, reports, the proceedings of either party’s business, documentation, notes, customer lists, business forecasts, sales and merchandising, and marketing plans and information). For the avoidance of doubt Fluent’s Intellectual Property Rights (to the extent disclosed to the Customer) constitute Confidential Information of Fluent.
9.2 Each Party agrees that:
9.2.1 it will not use any Confidential Information of the other Party for any purpose other than the fulfilment of obligations imposed by this Agreement, nor disclose any such Confidential Information to any third party without the other Party’s prior consent (and in the event that such consent is given, the Recipient will ensure, prior to such disclosure, that each such third party is made aware of the confidential nature of the Confidential Information and agrees in writing to be bound by conditions of secrecy no less strict than those set out in this Agreement);
9.2.2 it shall disclose Confidential Information of the other Party only to those of its employees who need to know such information, and that it will procure that such employees agree, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement;
9.2.3 without affecting any rights or remedies that the Discloser may have, that damages would not be an adequate remedy for any breach by Recipient of the provisions of this Agreement. Consequently, Discloser shall be entitled to apply for the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the provisions of this clause 9 by Recipient. No proof of special damages shall be necessary for the enforcement of this Agreement;
9.2.4 the Recipient will give notice to Discloser of any unauthorised use or disclosure of the Confidential Information by it, and/or any employee of it and/or any third party to whom it has disclosed Confidential Information, as soon as reasonably practicable after becoming aware of the same, and that it will provide all reasonable assistance to Discloser in remedying any such unauthorised use or disclosure of the Confidential Information; and
9.2.5 that its obligations hereunder shall survive for a period of six years from the date of last disclosure to it of Confidential Information of the other Party.
9.3 Information shall not be deemed to be Confidential Information to the extent that:
9.3.1 it was in the public domain at or subsequent to the time it was communicated to Recipient by Discloser through no fault of Recipient;
9.3.2 it was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser;
9.3.3 it was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence; or
9.3.4 the communication was in response to a valid order by a court or other governmental body or was otherwise required by law.
9.4 As part of this Agreement, each of the Customer and Fluent may be required to collect and/or process Personal Data relating to the Customer (its employees, contractors, representatives and sub-contractors), any such data Customer Data, and relating to Applicant Users, any such data, Applicant Data. In respect of any such Personal Data, each party shall in the performance of their obligations imposed by this Agreement at all times comply with any provision of the Data Protection Legislation which binds them.
9.5 Fluent may use Customer Data:
9.5.1. for the provision of the Flexi-Grant® Services (which may include Fluent accessing data to respond to service or technical problems with the Software);
9.5.2. for the purpose of investigating any disputes which might arise in respect of this Agreement and/or the provision of the Flexi-Grant® Services; and
9.5.3. to notify the Customer of any changes to the Flexi-Grant® Services.
9.6 Fluent may transfer the Customer Data to third parties in the following circumstances:
9.6.1. to its employees, agents and subcontractors for the provision of the Flexi-Grant® Services;
9.6.2. if it sells its business or assets as part of a business transfer; and/or
9.6.3. if it is under a duty to disclose or share the data to comply with a legal obligations or to enforce or apply this Agreement.
9.7 The Customer acknowledge that the uses and transfers set out in clauses 9.5 and 9.6 are either necessary to enable Fluent to perform this Agreement or are reasonable to protect a legitimate business interest. The Customer also consents to these uses and transfers and warrants and represents that the Customer has obtained all necessary third party consents and permissions (including from Registered Users) as may be required by applicable law for use of such data for those purposes.
9.8 Notwithstanding any other provision herein, the Customer expressly agrees that Fluent may collect user statistical information (from use of the Software by a User, which may include pseudonymised Applicant Data – provided Fluent does not retain the means to re-identify the data) such as usage or traffic patterns in aggregate form and use it for its own business purposes or transfer it to third parties, provided that such information will not include any Personal Data.
9.9 The Customer acknowledges that it is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data uploaded by or on behalf of the Customer.
9.10 Fluent reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of data that the Customer may (or may permit or authorise a third party to) store, post or transmit on or through the Software provided that notice is given to the Customer by Fluent no less than ninety (90) calendar days before such maximum amount is likely to be reached. For the avoidance of doubt, the ninety (90) calendar day period required in this clause 9.10 will be calculated on the basis of the average amount of storage or memory used or data stored, posted or transmitted on or through the Software by the Customer.
9.11 Fluent is a data processor in respect of any Applicant Data collected or held by it pursuant to this Agreement. Fluent will only use the Applicant Data for the sole purpose of providing the Flexi-Grant Services.
9.12 In accordance with its obligations as a data processor under the GDPR, Fluent shall:
9.12.1. implement adequate security measures and appropriate technical and organisational measures to safeguard the Applicant Data held by it and ensure the protection of the rights of the Applicant Users who can be identified from the Applicant Data;
9.12.2. not disclose or transfer the Applicant Data to any third party unless necessary for the provision of the Services and/or proper compliance with any legal requirement;
9.12.3. not engage a sub-processor to process the Applicant Data without prior written consent from the Customer;
9.12.4. only process the Applicant Data in accordance with the Customers documented instructions (including with regard to transferring such data outside the EEA);
9.12.5. ensure that any persons Fluent authorises to process the Applicant Data shall be bound by terms of confidentiality;
9.12.6. take all reasonable steps to ensure the reliability and integrity of any Fluent employees who have access to the Applicant Data;
9.12.7. provide such assistance to the Customer as may be required under the GDPR to respond to requests for exercising the rights of Applicant Users in respect of the Applicant Data held by Fluent (or on Fluent’s behalf);
9.12.8. provide such assistance to the Customer as may be required under the GDPR to ensure compliance with Articles 32 to 36 thereunder (taking into account the nature of the processing and information available to Fluent as the processor);
9.12.9. notify the Customer without undue delay and in any event without 72 hours of becoming aware of a breach of Fluent’s security measures in respect of the Applicant Data;
9.12.10. (subject to clauses 10.6.1 and 10.8) promptly delete or return to the Customer (at the Customer’s discretion) any Applicant Data held by Fluent (or on Fluent’s behalf) on termination of this Agreement for any reason; and
9.12.11. make available to the Customer all information necessary to demonstrate compliance with Fluent’s obligations under the GDPR, which shall include the right for the Customer (or an independent auditor engaged on the Customer’s behalf) to carry out audits and inspections on reasonable notice.
9.13 The Customer consents to Fluent’s use of the Applicant Data to provide the Customer with Fluent’s Services, and acknowledges and agrees that this may include the transferral of Applicant Data to a third party host service provider.
9.15 The Customer shall indemnify Fluent for any damages suffered by Fluent as a result of a breach by the Customer of this clause 9.
10. TERM AND TERMINATION
10.1 This Agreement shall commence on the Commencement Date and continue, subject to earlier termination in accordance with this clause 10, for the Initial Term. Thereafter, the Agreement may be renewed on each anniversary with the parties’ prior written agreement. The parties agree that ninety (90) days prior to any renewal date, the parties will discuss in good faith whether the Agreement will be renewed. If the Customer fails to pay the Fees before the beginning of a Renewal Period, Fluent reserves the right to terminate/suspend the Flexi-Grant Services until the Fees are paid.
10.2 If either Party materially breaches or materially fails to observe (together Breach) any provision of this Agreement, the other Party may (if the Breach is capable of remedy) give notice of the Breach and the Party in breach shall have twenty-eight (28) calendar days from receipt of the notice in which to remedy the Breach. If the Breach is not remedied in this period, or is incapable of remedy, then the Party not in breach may terminate the Agreement with immediate effect.
10.3 If either Party becomes insolvent or bankrupt or (being a company) makes an arrangement with its creditors or has an administrative receiver or administrator appointed or commences to be wound up (other than for the purpose of amalgamation or reconstruction) (in any such circumstance, such Party, the Insolvent Party and such event, Break Event) then the following provisions shall apply:
10.3.1 the Insolvent Party shall notify the other party of the likelihood of a Break Event as soon as reasonably practicable after becoming aware of the same; and
10.3.2 the other Party may without replacing or reducing any other of its rights terminate the Agreement with immediate effect by written notice.
10.4 Upon expiration or the earlier termination of this Agreement the licence granted in accordance with clause 2.1.1 of this Agreement will terminate, unless expressly otherwise agreed by Fluent in writing.
10.5 The provisions of clauses 7, 8, 9, 10 and 11.7 of this Agreement will survive expiration or termination of this Agreement.
10.6 Upon the expiration or termination of this Agreement and provided that this Agreement has not been terminated by Fluent due to Customer’s failure to pay any amount due to Fluent, Fluent will provide to Customer and / or to the supplier selected by Customer (such supplier shall be known as the Successor), upon Customer’s written request:
10.6.1 a reverse migration and a full dump of the hosted Applicant Data in an MS SQL format or MS Excel format (including the data model), within one month of receipt of the Customer’s written request. Such migration will be provided free of charge for a single occasion. If a repeat migration is required, or if a data migration is required in any other format, this shall be at the Customer’s cost. Fluent shall delete the Applicant Data, including back-ups, and provide a written statement to this effect, following receipt of written confirmation from the Customer that the Applicant Data is complete and has been well received by the Customer;
10.6.2 at Customer’s sole cost and expense, assistance reasonably requested by Customer in order to effect the orderly transition of the applicable Services, in whole or in part, to Customer or to Successor. (Termination Assistance Services). Termination Assistance Services may be supplied during a ninety (90) calendar days period (Termination Assistance Period) commencing not earlier than ninety (90) calendar days prior to, and not later than the date of, the expiration or termination of this Agreement. Fluent and Customer shall act all times in good faith and use all reasonable endeavours to agree in advance as to the price and scope of Fluent’ s providing of Termination Assistance Services, which may include:
10.6.2.1 developing a plan for the orderly transition of the terminated or expired Services from Fluent to Customer or to the Successor;
10.6.2.2 providing reasonable training to Customer staff or to the Successor in the performance of the Services then being performed by Fluent;
10.6.2.3 using commercially reasonable efforts to assist Customer, at Customer’s sole cost and expense, in acquiring any necessary rights to legally and physically access and use any third party technologies and documentation then being used by Fluent in connection with the Flexi-Grant Services;
10.6.2.4 using commercially reasonable efforts to make available to Customer, pursuant to mutually agreeable terms and conditions, any third party services then being used by Fluent in connection with the Flexi-Grant Services; and
10.6.2.5 such other activities upon which the Parties may agree.
10.7 Where the Termination Assistance Period continues beyond the termination date of this Agreement, the provisions of this Agreement shall survive such termination for the purposes of the supply of Termination Assistance Services.
10.8 Fluent shall give Customer reasonable notice of its intention not to keep any or all data stored in connection with the Customer’s account on the Software if the outstanding fees are not paid within an additional thirty (30) calendar days grace period from the date of the notice, and unless legally prohibited, delete all such data in its systems, possession or control when (i) Customer fails to pay Fluent for Termination Assistance Services within ninety (90) calendar days from the due date of payment; or (ii) if this Agreement has been terminated by Fluent due to Customer’s failure to pay any fees due to Fluent.
11.1 Except for a Party’s payment obligations, neither Party shall be liable for delay in performing the obligations or for the failure to perform obligations if the delay or failure results from any cause beyond its reasonable control (including acts of God, fire, explosion, war, terrorism, embargo, and any governmental action (Force Majeure Event)). The Party claiming a Force Majeure Event shall take all action which is reasonable under the circumstances to overcome any such cause of prevention or delay and to proceed with the performance of its obligations hereunder. Notice of any Force Majeure Event and any abatement thereof shall forthwith be given to the other Party by the Party claiming the benefit of this clause 11.1.
11.2 A person who is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
11.3 The Customer may not transfer, assign or novate the whole or any part of the Agreement or the benefit of it or any right under it without Fluent’s prior written approval.
11.4 A failure at any time to enforce any provision of the Agreement shall in no way affect the right at a later date to require complete performance of the Agreement, nor shall the waiver of the breach of any provision be taken or held to be a waiver of any subsequent breach of the provision, or be a waiver of the provision itself.
11.5 Nothing in this Agreement shall create or shall be deemed to create a partnership or the relationship of employer and employee between the Parties.
11.6 The terms of this Agreement may only be modified if agreed by both parties in writing. If any provision of this Agreement or part thereof should be found to be invalid, ineffective or unenforceable under any applicable statute or regulation, the remainder of the provisions shall stand in full force and effect.
11.7 The Agreement is governed by the laws of Northern Ireland. All disputes, claims or proceedings between the parties relating to the validity construction or performance of this Agreement shall be subject to the jurisdiction of the courts of Northern Ireland to which the parties hereto irrevocably submit.