Terms and Conditions

The terms in this document (“Terms”) set out how you, the Customer may use the Flowlens Subscription Service or Trial Period and the basis upon which we will provide you and your Permitted Users with our Services.

1.0       AGREEMENT

The software is provided by Flowlens, a Limited company, whose registered address is City East Business Centre, 68 – 72 Newtownards Road, Belfast, Northern Ireland, BT4 1GW, United Kingdom (“Flowlens, we, us, our”).

1.1       By signing the Proposal Summary you are agreeing to be bound by these terms, which together with the Proposal  Summary form a legally binding agreement between you and us (the Agreement).

1.2      Where applicable, by accepting a Permitted User access invitation to Flowlens for a free of charge Trial Period, you are agreeing to be bound by these terms and conditions.

1.3      If you instruct us to commence providing you with the services set out in the Proposal Summary before you have signed it, you will be deemed to have signed it when you instruct us to proceed.

1.4      Flowlens provides the Services and the Customer wishes to Purchase the Services as set out in the Proposal Summary.  The terms of this relationship and the rights and obligations of either Party are set out in the agreement below and the Documents referred to (as updated by Flowlens from time to time) which form a legally binding contract between the Customer and Flowlens (the “Agreement”)

1.5      The Parties agree as follows:

1.6      Definitions. In these Conditions, the following definitions apply:

2. SERVICES

2.1   Flowlens hereby grants to the Customer the right to access the Website and use the Software, the Services and the Intellectual Property Rights referred to in clause 6.1 for the duration of the Initial Term. This right applies solely to the use of the Intellectual Property Rights by the Customer’s for its internal business purposes only. The Customer shall not assign, transfer, mortgage, charge, subcontract, or declare a trust over the Intellectual Property Rights.

2.2   The Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Flowlens with respect to future functionality or features of the Product.

2.3   Platform. The Software is currently hosted on the Hosting Platform, Linode, which provides 99.9% uptime guarantee on hardware and network availability. Flowlens operates on the Hosting Platform service agreement under the Terms of Service set out at https://www.linode.com/legal. 

2.4 Flowlens Responsibilities. Flowlens shall:

(i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Permitted Users the Customer Data; 

(ii) to the extent the Customer Data comprises “personal data” within the meaning of applicable data protection laws and regulations, and in respect of which it is hereby acknowledged that Flowlens is acting as data processor only: (a) process the Customer Data in accordance with this Agreement, Customer’s instructions and applicable data protection laws and regulations(b) take appropriate technical, organisational and security measures against unauthorised access to or unauthorised alteration, disclosure, destruction or loss of Customer Data, and (c) take reasonable steps to ensure that Flowlens employees involved in providing the Software and the SLA are aware of and are suitably trained in such technical, organisational and security measures; 

(iii) assist you, at your cost, in responding to any request from a Data Subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(iv) maintain availability of the Software in accordance with the SLA as detailed in Appendix 1.

3 . CUSTOMER RESPONSIBILITIES

3.4. You are not permitted to authorise any individual or entity other than Permitted Users to access the Flowlens Software Service. You agree that:

3.4.1. any Permitted Users shall only be entitled to access the Flowlens Software via your unique Website address;

3.4.2. the maximum number of Permitted Users will be restricted to the number agreed in the Proposal Summary (or otherwise agreed between you and us from time to time); and

3.4.3. you shall be liable for all acts and/or omissions of any Permitted Users, including those if carried out by you would amount to a breach of this Agreement.

4.  USE OF THE FLOWLENS SOFTWARE:

4.1. You agree that you will not:

4.1.1. take any action that imposes, or may impose (in each case in our sole discretion) an unreasonable or disproportionately large load on our Hosting Platform;

4.1.2. copy, duplicate, reproduce, rent, lease, operate a service bureau, transfer, redistribute, sub-licence, loan, sell, trade, resell, modify, create derivative works, distribute or publicly display, all or any part of the Flowlens Software without our prior written consent;

4.1.3. interfere or attempt to interfere with the proper working of the Flowlens Software or any activities conducted via the Flowlens Software;

4.1.4. bypass any measures we may use to prevent or restrict access to the Flowlens Software (including any attempt to circumvent the maximum number of Permitted Users;

4.1.5. attempt to reverse engineer, decompile or otherwise seek to obtain access to the source code in the Flowlens Software;

4.1.6. engage in any activity that interferes with or disrupts the Flowlens Software, or the servers and networks which are connected to the Flowlens Software;

4.1.7. publish or disclose results of any benchmark or other test run on the Flowlens Software.

4.1.8 send or store malicious code.

4.2. You must not in any circumstances use, nor allow anyone else to use, any automated software, process, programme, robot, web crawler, spider, data mining, trawling or other “screen scraping” software (whether or not the resulting information is be used for your internal purposes) in respect of the Flowlens Software and you must not disclose your password to anyone else for the purposes of using any such technology.

4.3. It is your responsibility to ensure that any passwords and/or login details (whether relating to you or any other Permitted User) is kept confidential at all times. As such, you acknowledge and agree that you will be responsible for any activities carried out using your Website and/or your login details. If you know or suspect that someone else knows your password you agree to notify us by contacting us immediately.

4.4. You acknowledge and agree that we may monitor your (and/or any Permitted User’s) use of the Flowlens Software and all activities under your Website. Where, in our sole opinion, we suspect misuse of the Flowlens Software has occurred, we reserve the right to suspend or terminate your account.

 4.5     Storage space and deletion of data.

4.5.1 As a cloud-based internet application, delivered to the customer via web browser or application from a hosted, remote facility, there are no physical limitations on file storage. However, customers are required to stay within reasonable file limits, which are currently set at 20Gb of file transfers per month.

4.5.2 Flowlens reserve to negotiate charges for data transfer usage in excess of 20gb.

5. CHARGES AND PAYMENT

5.1 The Charges for the Software, Services, Maintenance Services and Hosting shall be on a fixed basis for the duration of the Initial Term:

5.1.1 the Charges shall be set out in the Proposal Summary

5.1.2 Flowlens shall be entitled to charge the Customer for Additional Services if the Customer requests such services and Flowlens and Customer agree the additional Services and associated costs in writing 

5.1.3 Flowlens shall be entitled to charge the Customer for any additional expenses reasonably incurred by the individuals whom Flowlens engages in connection with the Services including as agreed with the Customer.

5.1.4 the Customer shall pay the Service Fees as detailed in the  Proposal Summary, at which point access to the Software will be authorised.

5.1.5 If the Customer fails to pay the Service Fee, Flowlens will be entitled to either withhold delivery of the Product and provision of the Related Services until the payment of the Service Fee is received or terminate in accordance with clause 8.

5.1.6 Following the Initial Period of 30 days from signature, the Service Fee is non-refundable except where Flowlens fails to provide the Services and are solely at fault for such failure. 

5.2 Flowlens shall invoice the Customer on the invoice date(s) as agreed between the parties for the Services as agreed between Flowlens and the Customer.

5.3 The Customer shall pay each invoice submitted by Flowlens as agreed in the Proposal and any related documentation by Direct Debit except where stated.

5.4 Professional Services Fees paid during the Initial Period are non-refundable.

5.5 All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of any value added tax chargeable for the time being (“VAT“) or Sales Tax. Where any taxable supply for VAT or Sales Tax purposes is made under the Agreement by Flowlens to the Customer, the Customer shall, on receipt of a valid VAT or Sales Tax invoice from Flowlens, pay to Flowlens such additional amounts in respect of VAT or Sales Tax as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. 

5.6 If the Customer fails to make any payment due to Flowlens under this Agreement by the due date for payment, Flowlens may suspend any further provision of the Services.

5.7 Overdue Payments. If the Customer fails to make any payment due to Flowlens under the Agreement by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 12% per cent per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5.8 Flowlens reserves right to make a reasonable annual increase of 5% to subscription pricing to account for inflation based on RPI changes, cost increases, and where applicable, to make adjustments for significant currency fluctuations.

5.9 All payments must be made in the currency specified in Proposal Summary unless otherwise agreed in writing between the Parties.

5.10 Zynk license fees for Sage 50 integration are payable in advance for an annual license, and are non-refundable.

6.   INTELLECTUAL PROPERTY RIGHTS 

6.1 All Intellectual Property Rights in or arising out of or in connection with the Software and Services shall be owned by Flowlens or the applicable third party licensor with the exception of Intellectual Property Rights referred to in clause 6.2. 

6.2 Flowlens will not own any Intellectual Property Rights which arise from the Customer Data created by the Customer using the Services. These shall be owned by the Customer.

6.2.1 you hereby grant us a royalty-free, licence to use (and permit our employees and sub-contractors to use) the Customer Data for the purposes of providing our Services

6.3 Flowlens reserves all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. Flowlens reserves the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.

6.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights included in the Software or Services, Flowlens will ensure that this is licensed for the Customer.

7.    CONFIDENTIALITY

A party (“receiving party“) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party“), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Agreement. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 7 shall survive termination of the Agreement.

8.     LIMITATION OF LIABILITY

8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR UNDER AN INDEMNITY CLAIM, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

8.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PRODUCT AND SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE PRODUCT, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE PRODUCT, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. MUTUAL INDEMNIFICATION

9.1    Indemnification by Flowlens. Subject to this Agreement, Flowlens shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging i) a breach by Flowlens of its obligations under applicable data protection laws and regulations; or (ii) that the use of the Software as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to Flowlens; (b) gives Flowlens sole control of the defence and settlement of the Claim (provided that Flowlens may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Flowlens, at Flowlens’ cost, all reasonable assistance.

9.2    Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Flowlens harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Flowlens by a third party alleging(i) a breach by Customer of its obligations under applicable data protection laws and regulations; or (ii) that the Customer Data, or Customer’s use of the Service Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Flowlens (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defence and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Flowlens of all liability); and I provides to Customer, at Customer’s cost, all reasonable assistance.

10. TERMINATION

10.1 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

10.1.1 the other party commits a material breach of any term of the Agreement;

10.1.2 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 any applicable bankruptcy laws 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 its creditors;

10.1.3 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) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 

10.1.4 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 10.1.2 to clause 10.1.3 (inclusive);

10.1.5 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; 

10.1.6 the other party’s financial position deteriorates to such an extent that in Flowlens’s opinion the Customer’s capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

11.    CONSEQUENCES OF TERMINATION

11.1 On termination of the Agreement for any reason as per Clause 9 by the Customer:

11.1.1 All future monthly / annual charges for the remainder of the Contract Term shall become due and payable immediately.

11.2 On termination of the Agreement for any reason: 

11.2.1 the Customer shall immediately pay to Flowlens all of the outstanding invoices and interest and, in respect of Services supplied;

11.2.2 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and

11.2.3 clauses which expressly or by implication survive termination shall continue in full force and effect.

12.   FORCE MAJEURE

12.1 For the purposes of this Agreement, “Force Majeure Event” means an event beyond the reasonable control of Flowlens and the Customer including but not limited to power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

12.2 The parties shall not be liable to either other as a result of any delay or failure to perform their obligations under this Agreement as a result of a Force Majeure Event.

12.3 If the Force Majeure Event causes a delay of more than 90 days, either party shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the other party.

13 GENERAL

13.1 Assignment and other dealings.

13.1.1 Flowlens may assign, transfer, mortgage, charge all or any of its rights under the Agreement in the event of a disposal of the assets, or relevant part of the assets, of the business.

13.1.2 Flowlens may subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent so as to deliver specialist services including but not limited to hosting and back up of data.

13.1.3 The Customer shall not, without the prior written consent of Flowlens, assign or transfer any or all of its rights or obligations under the Agreement.

13.2 Notices.

13.2.1 Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.

13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission without receipt by the sender of a failure notice.

13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

13.3 Severance.

13.3.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

13.3.2 If either party gives notice to the other of the possibility that any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

13. 4 Waiver. A waiver of any right under the Agreement or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 

13.5 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

13.6 Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.

13.7 Variation. Except as set out in these Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Flowlens and the Customer.

13.8 Governing law. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of the United Kingdom. 

13.9 Jurisdiction. Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

APPENDIX 1 – Flowlens Maintenance Services and SLA

Overview of Maintenance Services Provided

• Use reasonable commercial efforts to correct errors.
• Updates, new versions and releases of the Software, but excluding New Generation Updates.
• Reasonable off-site advice and support on the use of the Software, excluding training, by email during normal business hours, of 9.00am to 5.00pm, at Licensor’s local office (i.e. the office primarily supporting the Location(s)), Monday through Friday.
• Use of Flowlens support is based on fair usage policy. We reserve the right to review charges for support services or additional training should usage exceed reasonable levels. Telephone support is provided by calling Flowlens local office directly.
• Flowlens call handling methodology is shown below:

Issue/Incident Reporting and Severity Levels

Flowlens will respond to each incident raised in accordance with this SLA.  Actual resolution times will depend on the nature of the incident and the requisite solution.

The Customer shall perform self-diagnosis of each incident and make a recommendation to Flowlens on the severity of the issue/incident at the time of logging. Flowlens may chose to re-categorise based on diagnosis or additional information. The categorisations are as follows, including response times:

• Priority 1 – System down or system unavailable to users for that customer- 2 hours max 
• Priority 2 – Business Critical area of system unavailable – 4 hours max 
• Priority 3 – Non-business Critical area of system unavailable – 1 working day
• Priority 4 – Minor Query/Routine Advice – 8 hours max – 2 working days

On-site Support

On-site advice and support is not included within the Maintenance Services but is available if required by the Customer at Flowlens’ then-current charges for such advice and support.

Conditions

• Maintenance Services shall be conditional upon the Customer or Permitted User having:
  • provided Flowlens with adequate information in respect of any malfunction in the Software
  • accepted all releases and amendments issued by Flowlens, and
• Maintenance Services are provided for the current release of the Software which is updated periodically.

Availability

Unplanned Downtime: Refer to clause 2.3 for the availability of the hosting platform. 

Planned Maintenance: Any planned maintenance will be undertaken at an agreed time normally outside working hours. 

Disaster Recovery

Please Refer to Hosting Platform disaster recovery policies. An automated backup of customer data is taken daily overnight, with weekly snapshots of the current and previous week kept for disaster recovery, with one-click restoration of this backup data available in such a scenario. Application provisioning uses an automated, repeatable process, allowing Flowlens to recreate an application server with a known configuration in a minimal amount of time.

Note: Flowlens does not provide Support for problems caused by using the Software in any way not described in the Documentation and which do not directly relate to the performance of the Software itself, for example problems which relate to the administration and maintenance of a computer system or network.

Change Control

If you require changes to the Services agreed in the Proposal Summary, such as additional users, or further training, please contact us. 

ENDS