(1) Fluxvo Inc., a company registered in England and Wales with its registered office at [Registered Office Address] (the "Provider"); and
(2) the person or entity that subscribes to or uses the Platform (the "Customer"),
each a "party" and together the "parties".
1.Definitions and Interpretation
1.1 In this Agreement, the following definitions apply:
- "Account" the account created for the Customer to access and use the Platform.
- "Authorised Users" the Customer's employees, agents and contractors who are authorised by the Customer to use the Platform under the Customer's Account.
- "Channels" the order intake channels through which the Platform captures inbound orders, which currently include email, voice and phone, WhatsApp, SMS, the Customer's web portal, fax, retailer portals, and sales representative apps, together with any other channels the Provider makes available from time to time.
- "Confidential Information" all information disclosed by one party to the other that is marked as confidential or that ought reasonably to be regarded as confidential, including the terms of this Agreement, the Platform, pricing, and business information.
- "Customer Data" all data, documents, order records, catalog, pricing and inventory data, and other content submitted to or processed by the Platform by or on behalf of the Customer or its Authorised Users, including orders received through the Channels.
- "Data Protection Laws" all applicable laws relating to the processing of personal data, including the UK GDPR, the Data Protection Act 2018, and, where applicable to the Customer, equivalent laws in other jurisdictions.
- "DPA" the data processing addendum made available by the Provider, which sets out the terms on which the Provider processes personal data on the Customer's behalf and which forms part of this Agreement.
- "Fees" the charges payable by the Customer for access to the Platform and Services, as set out on the Provider's website, in an Order Form, or in the Account.
- "Integrations" the connections between the Platform and the Customer's enterprise resource planning (ERP), warehouse management (WMS) or other systems of record (which may include systems such as SAP, NetSuite, QuickBooks, Microsoft Dynamics, or a custom system connected via API or EDI), through which the Platform matches, verifies and synchronises order and inventory data.
- "Order Form" any order, subscription confirmation, online checkout, or written statement that records the plan, Channels, Integrations, usage allowances and Fees selected by the Customer.
- "Platform" the Fluxvo FlowOrder AI software platform, including the Channels and Integrations, hosted and made available by the Provider on a software as a service basis.
- "Services" the provision of access to the Platform and any related support, configuration or onboarding services provided by the Provider under this Agreement.
- "Subscription Term" the period for which the Customer has subscribed to the Platform, as set out in the applicable Order Form or Account.
1.2 Clause headings do not affect interpretation. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. Words in the singular include the plural and vice versa. "Including" and "in particular" do not limit the generality of any preceding words.
1.3 In the event of conflict, the order of precedence is: (a) the applicable Order Form; (b) the DPA; and (c) the body of this Agreement.
2.The Platform and Services
2.1 Subject to the Customer's compliance with this Agreement and payment of the applicable Fees, the Provider grants the Customer a non-exclusive, non-transferable right to access and use the Platform during the Subscription Term for the Customer's internal business purposes.
2.2 The Provider will make the Platform available to the Customer in accordance with the plan and usage allowances set out in the applicable Order Form. Where allowances are expressed as credits or units (for example the number of orders processed per month, voice minutes, or messaging volumes), usage in excess of the included allowance may be charged at the Provider's then-current rates.
2.3 The Platform is provided on a software as a service basis. The Provider hosts the Platform and is responsible for maintaining and updating it. The Provider may from time to time improve, modify or add to the Platform, including the Channels and Integrations, provided that no such change materially reduces the core functionality of the Platform during the Subscription Term.
2.4 Channels, Integrations and features described as "coming soon" or in development are not warranted to be available during any particular Subscription Term and are made available only when released by the Provider.
3.Accounts, Access and Acceptable Use
3.1 The Customer is responsible for all activity that takes place under its Account and for ensuring that its Authorised Users comply with this Agreement. The Customer must keep its access credentials secure and notify the Provider promptly of any unauthorised use.
3.2 The Customer must not, and must ensure that its Authorised Users do not:
- (a) copy, modify, reverse engineer, decompile or create derivative works of the Platform, except to the extent permitted by law;
- (b) resell, sublicense, rent or otherwise make the Platform available to any third party except as expressly permitted in this Agreement;
- (c) use the Platform to store or transmit any unlawful, infringing or harmful material, or in a manner that infringes the rights of any third party;
- (d) introduce any malicious code, or attempt to gain unauthorised access to the Platform or its underlying infrastructure; or
- (e) use the Platform other than in accordance with applicable law, including Data Protection Laws and laws relating to the fair and lawful processing of personal data captured through the Channels.
3.3 The Customer is responsible for ensuring it has a lawful basis to submit Customer Data, including any personal data relating to its customers, drivers, sales representatives or other individuals, to the Platform, and for any decisions it takes on the basis of outputs generated by the Platform. Outputs generated by the Platform, including matched orders, picklists and fulfilment recommendations, are intended to assist the Customer and should be reviewed by the Customer before being relied upon.
4.Fees, Billing and Payment
4.1 The Customer will pay the Fees for the plan and any usage selected. Unless otherwise agreed in writing, Fees are charged in advance for each billing period through the Provider's nominated payment processor.
4.2 By providing payment details, the Customer authorises the Provider and its payment processor to charge the applicable Fees, including recurring subscription Fees and any usage-based charges, to the Customer's chosen payment method on each billing date.
4.3 All Fees are exclusive of value added tax or any other applicable sales tax, which the Customer will pay in addition at the prevailing rate where applicable.
4.4 The Customer may cancel at any time through its Account. Where the Customer has paid Fees in advance (for example on an annual plan), the Provider will refund, on a pro-rata basis, the portion of those Fees relating to the period after termination takes effect, except where termination results from the Customer's uncured material breach.
4.5 If any undisputed Fee remains unpaid for more than 30 days after the due date, the Provider may, after giving the Customer at least 14 days' written notice, suspend the Customer's access to the Platform until payment is received.
4.6 The Provider may change recurring Fees only with effect from a renewal, and will give the Customer at least 30 days' written notice of any change. If the Customer does not agree to the change, it may decline by giving notice before the renewal date, in which case the change will not take effect and the Customer may allow the subscription to end at the renewal date.
5.Term and Renewal
5.1 This Agreement begins when the Customer first accepts it or accesses the Platform and continues for the Subscription Term and any renewal periods, until terminated in accordance with this Agreement.
5.2 Unless an Order Form states otherwise, each Subscription Term renews automatically for successive periods of the same length. The Provider will give the Customer at least 14 days' notice before any renewal. The Customer may cancel or decline renewal at any time through its Account or by written notice, and will not be charged for any period after cancellation takes effect.
6.Suspension
6.1 The Provider may suspend the Customer's access to all or part of the Platform where: (a) the Provider reasonably believes the Platform is being used in breach of this Agreement; (b) suspension is necessary to protect the security, integrity or availability of the Platform; or (c) any undisputed Fee is overdue. The Provider will restore access promptly once the relevant cause has been resolved.
7.Termination
7.1 Either party may terminate this Agreement on written notice if the other party: (a) commits a material breach that it fails to remedy within 30 days of being asked to do so; or (b) becomes insolvent, enters administration, or ceases or threatens to cease to carry on business.
7.2 The Customer may terminate this Agreement at any time for convenience by cancelling through its Account or giving written notice, with effect from the end of the then-current billing period, and any Fees prepaid for the period after termination will be refunded on a pro-rata basis in accordance with clause 4.4.
7.3 On termination: (a) the Customer's right to access the Platform ends; (b) the Customer remains liable for any Fees accrued up to the date of termination; and (c) each party will return or destroy the other's Confidential Information on request, subject to any legal retention obligations.
7.4 For a period of 60 days after termination, the Provider will, at no additional charge and on the Customer's request, make Customer Data available for export in a commonly used format. The Provider will delete Customer Data promptly on the Customer's written request, and in any event within that 60-day period, in accordance with the DPA.
8.Intellectual Property Rights
8.1 The Platform, the Channels, the Integrations, and all related software, models, documentation and intellectual property rights in them are and remain the property of the Provider or its licensors. Nothing in this Agreement transfers any such rights to the Customer, other than the limited right to use the Platform set out in clause 2.
8.2 The Customer retains all rights in Customer Data. The Customer grants the Provider a non-exclusive licence to host, copy and process Customer Data to the extent necessary to provide the Services and as further described in clause 10 and the DPA.
8.3 Where the Customer provides feedback or suggestions about the Platform, the Provider may use them to improve its products and services without restriction or obligation to the Customer.
9.Confidentiality
9.1 Each party will keep the other's Confidential Information confidential, use it only for the purposes of this Agreement, and disclose it only to those of its personnel and advisers who need to know it and who are bound by equivalent obligations of confidence.
9.2 This clause does not apply to information that is or becomes public through no fault of the receiving party, was lawfully known to the receiving party before disclosure, or is required to be disclosed by law or a regulator, provided that, where lawful, reasonable notice is given before disclosure.
10.Customer Data and Data Protection
10.1 In respect of personal data contained in Customer Data, the Customer is the controller and the Provider is the processor. Each party will comply with its obligations under the Data Protection Laws, and the parties will comply with the DPA, which forms part of this Agreement.
10.2 The Provider is registered with the UK Information Commissioner's Office and processes personal data only on the Customer's documented instructions and as necessary to provide the Services.
10.3 The Provider will not use Customer Data to train, fine-tune or improve any general or third-party artificial intelligence model. Customer Data is processed solely to deliver the Services to the Customer and is retained only for as long as the Customer's subscription is active and reasonably necessary for that purpose.
10.4 The Provider will implement appropriate technical and organisational measures to protect Customer Data against unauthorised or unlawful processing and against accidental loss, destruction or damage, as further described in the DPA.
10.5 The Provider will notify the Customer without undue delay, and in any event within 72 hours, after becoming aware of any personal data breach affecting Customer Data, and will provide the Customer with the information and assistance it reasonably needs to meet its own obligations under the Data Protection Laws.
10.6 The Customer warrants that it has all necessary rights, consents and lawful bases to provide Customer Data, including personal data captured through the Channels, to the Platform for processing under this Agreement.
11.Warranties
11.1 The Provider warrants that it will provide the Services with reasonable skill and care and that the Platform will perform materially in accordance with its published documentation during the Subscription Term.
11.2 Except as expressly set out in this Agreement, the Platform and Services are provided on an "as is" and "as available" basis, and the Provider does not warrant that the Platform will be uninterrupted or error free, or that outputs generated by the Platform will be complete or accurate. All warranties, conditions and terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.3 If the Platform fails to perform materially in accordance with its documentation, the Provider will use reasonable endeavours to correct the issue promptly. If the Provider is unable to do so within a reasonable period, the Customer may terminate the affected Services and receive a refund of prepaid Fees relating to the period during which the Services were not provided as warranted.
12.Service Availability and Support
12.1 The Provider will use reasonable endeavours to keep the Platform available, but access may be interrupted for scheduled or emergency maintenance, or for reasons beyond the Provider's reasonable control. The Provider will seek to carry out planned maintenance at times likely to cause least disruption.
12.2 The Provider will provide support to the Customer through its standard support channels during normal business hours. Any enhanced service levels apply only where expressly agreed in an Order Form.
13.Limitation of Liability
13.1 Nothing in this Agreement limits or excludes either party's liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot be limited or excluded by law.
13.2 Subject to clause 13.1, neither party is liable to the other for any loss of profit, loss of revenue, loss of business, loss of anticipated savings, loss of or damage to data, or any indirect or consequential loss, in each case whether arising in contract, tort (including negligence) or otherwise.
13.3 Subject to clause 13.1, the Provider's total aggregate liability arising out of or in connection with this Agreement in any 12-month period is limited to the total Fees paid by the Customer to the Provider in that period.
13.4 The limit in clause 13.3 does not apply to the Provider's liability for breach of its data protection obligations under clause 10, breach of confidentiality under clause 9, or its indemnity under clause 14.2. In respect of those matters, the Provider's aggregate liability is instead limited to 150% of the total Fees paid by the Customer in the 12 months before the claim.
13.5 The Customer is responsible for reviewing and verifying outputs generated by the Platform before relying on them, and the Provider is not liable for decisions taken by the Customer on the basis of such outputs.
14.Indemnity
14.1 The Customer will indemnify the Provider against direct losses, liabilities and reasonable costs arising from a third-party claim to the extent caused by the Customer's breach of this Agreement or by Customer Data infringing the rights of a third party, provided that the Provider notifies the Customer promptly of the claim and allows the Customer to participate in its defence and settlement.
14.2 The Provider will indemnify the Customer against all losses arising from any claim that the Platform, when used in accordance with this Agreement, infringes the intellectual property rights of a third party, provided that the Customer notifies the Provider promptly and allows the Provider to control the defence and settlement of the claim.
15.Force Majeure
15.1 Neither party is liable for any delay or failure to perform its obligations (other than payment obligations) to the extent caused by events beyond its reasonable control, including failures of telecommunications or internet services, hosting or third-party platform outages, acts of government, or industrial action. The affected party will notify the other and use reasonable endeavours to resume performance.
16.General
16.1 Assignment. The Customer may not assign or transfer this Agreement without the Provider's prior written consent. The Provider may assign this Agreement to a successor in connection with a reorganisation or sale of its business.
16.2 Entire agreement. This Agreement, together with any applicable Order Form and the DPA, constitutes the entire agreement between the parties and supersedes all prior arrangements relating to its subject matter.
16.3 Variation. The Provider may update this Agreement from time to time. Where a change materially affects the Customer's rights, the Provider will give reasonable notice, and continued use of the Platform after the change takes effect constitutes acceptance of the updated terms.
16.4 Notices. Notices under this Agreement must be in writing and may be sent by email to the address associated with the Account or, in the case of the Provider, to its registered contact address.
16.5 Waiver and severance. A failure to enforce any provision is not a waiver of it. If any provision is held to be invalid or unenforceable, the remaining provisions continue in full force.
16.6 No partnership. Nothing in this Agreement creates a partnership, joint venture or relationship of employer and employee between the parties.
16.7 Third party rights. A person who is not a party to this Agreement has no rights to enforce it under the Contracts (Rights of Third Parties) Act 1999.
16.8 Governing law and jurisdiction. This Agreement and any dispute arising out of it are governed by the laws of England and Wales, and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
17.Acceptance
By creating an Account, accepting these terms electronically, signing an Order Form that incorporates this Agreement, or otherwise accessing or using the Platform, the Customer confirms that it has read, understood and agreed to be bound by this Agreement.