1.1 We are KashFlow Software Limited. Our company number is 05674043 and our registered address is Edmund House, 27 St James’ Road, Dudley, West Midlands, DY1 3JD (“KashFlow“, “we“, “us“)
1.2 These terms and conditions (the “General Terms“) apply to you (the “Customer“, “you” and “yours”) when you use the online KashFlow account services (whether on a trial period or monthly paid subscription) (the “Services“) on our website kashflow.com (the “Site“).
2.1 In the General Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
2.2 All references to Clauses are, unless otherwise expressly stated, references to the Clauses of these General Terms.
2.3 The headings in the General Terms are inserted for convenience only and shall be ignored in construing the General Terms.
2.4 References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time.
3.1 The General Terms take effect from the date you begin using the Services and subject to Clause 7 (Termination) shall continue in effect for the duration of your use of the Services.
4.1 The Customer shall:
4.1.1 comply with any and all instructions provided to the Customer by KashFlow relating to the Service;
4.1.3 not use the Services for any immoral or illegal purpose or in any way that would bring KashFlow into disrepute;
4.1.4 procure that its officers and employees co-operate with KashFlow, its agents and sub-contractors in carrying out the Services; and
4.1.5 be responsible for any and all applicable sales, use, excise, value added or other taxes and duties and any other fees, charges or payments payable to any governmental or regulatory authority, body or organisation incurred as a result of or in connection with the use by the Customer of the Services.
5.1 For the purposes of these General Terms references to “Fees” shall mean the fee as posted on our Site from time to time and applicable in respect of your subscription to KashFlow’s Services.
5.2 In consideration of the supply of the Service, the Customer agrees to pay KashFlow the Fee in accordance with the payment terms advertised on the Site at the relevant time. Unless otherwise expressly stated, all prices are exclusive of value added tax.
5.3 KashFlow shall send an electronic receipted invoice to the Customer upon receipt by KashFlow of the relevant payment.
5.4 Without prejudice to any other right or remedy it may have, KashFlow reserves the right to set off any amount owing to it at any time from the Customer against any amount payable by KashFlow to the Customer under or in connection with the General Terms.
5.5 If the Customer fails to pay any amount payable by it under the General Terms then KashFlow reserves the right to restrict access the Services until payment is made.
5.6 No refund of any Fees shall be given under any circumstances.
6.1 For the purposes of these General Terms references to the “Intellectual Property Rights” shall mean all patents, rights to inventions, copyright and related rights, trade marks and trade names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including without limitation know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
6.2 The Customer acknowledges and agrees that all Intellectual Property Rights existing or arising in any materials, know-how, specifications, inventions, processes, software, data or information supplied by KashFlow under or in connection with the General Terms shall at all times belong to and remain vested in KashFlow or its licensors and, save as expressly provided hereunder, no proprietary rights or any other rights whatsoever are assigned, granted or shall otherwise pass to the Customer.
6.3 KashFlow shall indemnify the Customer against any claim (including, without limitation, any losses and liabilities arising out of such claim but excluding any indirect, special or consequential loss or loss of profits, revenue or goodwill) that the Customer’s use of the Service in accordance with the General Terms infringes the Intellectual Property Rights of any third party, provided the Customer:
6.3.1 promptly notifies KashFlow in writing of any such claim and not making any admissions of liability or settling any such claim without KashFlow’s prior written consent;
6.3.2 allows KashFlow (at KashFlow’s request and expense) to solely conduct all negotiations and litigation resulting from any such claim; and
6.3.3 at the request and expense of KashFlow, gives all reasonable assistance with such negotiations or litigation.
6.4 Clause 6.3 sets out KashFlow’s entire liability to the Customer in respect of the infringement of the Intellectual Property Rights of any third party.
6.5 If any claim is made against KashFlow or the Customer alleging that the Customer’s use of the Service infringes the Intellectual Property Rights of a third party and the Customer’s use of the Services is not in accordance with the General Terms, KashFlow shall not be responsible and shall be entitled:
6.5.1 to require the Customer to cease using the Service until otherwise notified by KashFlow in writing, and
6.5.2 to require the Customer to indemnify KashFlow against any direct or consequential claim which may be brought against KashFlow by a third party under Clause 6.5.
6.6 The Customer undertakes to notify KashFlow promptly of any infringement of the Intellectual Property Rights referred to in Clause 6.5 of which the Customer is or becomes aware and to render to KashFlow and/or KashFlow’s relevant licensors all reasonable assistance in relation to any action, suit or proceeding taken by KashFlow and/or its relevant licensors in respect of such infringement.
7.1 The Customer shall be deemed to have terminated the General Terms if:
7.1.1 The Customer does not elect to subscribe to the Services at the end of any trial period advertised on the Site; and/or
7.1.2 The Customer cancels their subscription to the Service or fails to pay KashFlow for a subsequent renewal.
7.2 KashFlow may terminate the General Terms at any time by giving the Customer not less than one (1) month’s prior notice by email.
7.3 Without prejudice to its other rights and remedies, either party may, by written notice to the other, terminate the General Terms with immediate effect if the other party:
7.3.1 Subject to Clause 7.4, commits a material breach of the General Terms and shall, in the case of any remediable breach, fail to remedy the same within 14 business days of receipt of a written notice from the non-breaching party requiring such remedy; and/or
7.3.2 is unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986) or otherwise becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other party (other than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the other party’s assets or the other party enters into or proposes any composition or arrangement with its creditors generally or anything analogous to the foregoing occurs in any applicable jurisdiction or if it ceases to trade or threatens to cease to trade.
7.4 For the avoidance of doubt, failure by the Customer to pay any Fees due to KashFlow in full in cleared funds by the due date shall constitute a material breach of the General Terms. Failure by the Customer to pay the Fees to KashFlow in cleared funds by the due date on more than two occasions shall entitle KashFlow to terminate the General Terms forthwith on giving written notice to the Customer.
8.1 Upon termination of the General Terms, KashFlow shall cease to make the Service available to the Customer.
8.2 Upon termination of the General Terms for any reason, the Customer shall promptly return (or at KashFlow’s request destroy) all copies in any form (including in any human or machine readable form) of any materials relating to the Services which have been provided to the Customer by KashFlow as part of the Services and which are in the possession, custody or control of the Customer or its officers, employees or agents.
9.1 KashFlow warrants that it has all requisite power and authority to execute, deliver and perform its obligations under the General Terms.
9.2 The Customer warrants that
9.2.1 it shall comply with all applicable laws and regulations relating to the Service and with all applicable rules, regulations and guidelines (whether or not having the force of law) of any regulatory organisations or bodies of which it is a member or by which it is bound; and
9.2.2 it has all requisite power and authority to execute, deliver and perform its obligations under the General Terms.
9.3 KashFlow does not warrant that the Service will meet the Customer’s requirements nor that the Services provided through the Site will be error-free or uninterrupted.
9.4 The Services are provided on an “as is” basis. Save as expressly set out in the General Terms, all conditions, representations, warranties, undertakings or terms whether express or implied, statutory or otherwise, including in particular any implied warranty of satisfactory quality or fitness for any particular purpose or use are excluded from the General Terms to the fullest extent permitted by law.
9.5 The Customer confirms that neither KashFlow nor any of its representatives has made any claims or representations of guaranteed or anticipated profits that may result from the use of the Service and KashFlow expressly disclaims liability for any profit projections which may have been provided to the Customer.
10.1 Save in respect of liability for death or personal injury arising as a result of KashFlow’s negligence, the total aggregate of KashFlow’s liability howsoever arising under or in connection with the Services, whether in respect of a single occurrence or a series of occurrences, shall not exceed in any year the sum of the Fees paid by the Customer from the 12 month period preceding the date when the claim arose.
10.2 Subject to Clause 10.1, KashFlow shall not be liable to the Customer for any loss of profits or goodwill or any other type of special, indirect or consequential loss or revenue of any nature whatsoever (including loss or damages suffered as a result of an action brought by a third party) whether arising from negligence, breach of contract or otherwise, even if such loss was reasonably foreseeable or KashFlow had been advised of the possibility of the Customer incurring the same, and such liability is hereby excluded to the fullest extent permitted by law.
10.3 The Customer hereby undertakes and agrees to indemnify KashFlow and keep it fully indemnified from and against any costs, losses, damages, expenses and/or liabilities (including without limitation any legal fees and expenses) which may be suffered or incurred by KashFlow arising out of or in connection with (i) any claims, proceedings, demands or actions by third parties arising out of or in connection with KashFlow’s supply of and/or the Customer’s use of the Service (including without limitation claims under the Data Protection Act 1998) and/or any breach of the Customer’s undertakings or obligations set out in the General Terms, and/or (ii) any breach by the Customer of its obligations under the General Terms, and/or (iii) the Customer’s negligence or wilful misconduct.
10.4 The Customer agrees that all the limitations and exclusions of liability in favour of KashFlow in the General Terms are reasonable in the circumstances under which the Service is to be performed.
11.1 The parties recognise that under these General Terms they may receive each other’s trade secrets and/or confidential or proprietary information of the other party. All information belonging to or relating to a party including without limitation information concerning business plans, customers, supplies, services, intellectual property and/or financial results received by the other party as a result of entering into or performing the General Terms which is designated as confidential by the disclosing party or is otherwise clearly confidential in nature constitutes “confidential information”.
11.2 Each party agrees not to use confidential information for any purpose other than the purpose for which it is supplied under the General Terms and agrees not to divulge confidential information received from the other party to any of its employees who do not need to know it, and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party except to its professional advisers or as may be required by law or any legal or regulatory authority.
11.3 Each party will use a reasonable degree of care which in any event will not be less than the same degree of care which the receiving party uses to protect its own confidential information to keep and ensure its employees and agents keep any and all such information confidential. This obligation will survive the termination of the General Terms, in respect of a particular item of confidential information, until such earlier time as that item of confidential reaches the public domain other than through the receiving party’s own default.
13.1 Subject to Clause 13.2, the Customer agrees that KashFlow may use the Customer’s logo, name and trade marks in connection with KashFlow’s advertising and marketing materials but only in accordance with Clause 13.2.
13.2 KashFlow shall submit all advertising and marketing materials which incorporate the Customer’s logo, name and/or trade marks to the Customer before publication. The Customer shall have a period of seven (7) business days commencing on the date on which KashFlow sends the materials in which to notify KashFlow as to whether the Customer approves or disapproves the materials, such approval not to be unreasonably withheld or delayed. If the Customer does not communicate its approval or disapproval to KashFlow within such seven day period, the Customer shall be deemed to have approved the materials.
Neither party will be liable to the other for any delay or non-performance of the other party’s obligations under this Agreement arising from any cause or causes beyond its reasonable control.
15.1 The Customer shall not, without the prior written consent of KashFlow, sub-licence, assign or otherwise transfer or dispose of all or any part of the Customer’s rights or obligations under the General Terms.
15.2 KashFlow shall be entitled to delegate or sub-contract the performance of all or any part of its obligations under or in connection with the General Terms to any third parties as is necessary to provide the Services.
All Clauses intended by their nature to survive termination (including but not limited to Clause 8) shall survive the termination of the General Terms.
If any provision of these General Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain unaffected and in force.
18.2 Each of the parties acknowledges and agrees that in entering into these General Terms and the documents referred to in them, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to these General Terms or not) other than as expressly set out in this these General Terms.
Each party will, at the request of the other party and at its own cost, do (or procure others to do) everything necessary to give the other party the full benefit of these General Terms.
No person who is not a party to these General Terms is intended to receive a benefit under, or be entitled to enforce, this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.
No forbearance or delay by either party in enforcing its rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
22.1 All notices shall be made in writing and sent by prepaid first class post, by facsimile, e-mail or delivered by hand to, in the case of KashFlow, the address set out at the beginning of the General Terms and, in the case of the Customer, to the address notified to KashFlow by the Customer (or to such other address as each party may from time to time notify in writing to the other party).
22.2 Any notice served by facsimile or e-mail shall be deemed served at the time of transmission provided the sender can show satisfactory transmission and posts a hard copy of the notice within 24 hours of service provided that if any such notice would otherwise be deemed to be served outside working hours, such notice shall be deemed to be served at the start of working hours on the next business day. Any notice served by post shall be deemed served two business days after the date of posting and any notice delivered by hand, upon delivery.
KashFlow may change these General Terms from time to time at its absolute discretion without prior notice to the Customer. The Customer agrees that such changes will be binding on it. Any changes will be posted on KashFlow’s Site and will amend and form part of these General Terms. The Customer is responsible for reviewing the KashFlow Site on a regular basis to obtain timely notice of any such changes. The General Terms and any new agreement entered into after such changes have been posted will include those changes.
Nothing in these General Terms will be construed as constituting or evidencing any partnership, contract of employment or joint venture of any kind between either of the parties or as authorising either party to act as agent for the other. Neither party will have authority to make representations for, act in the name or on behalf of or otherwise to bind the other party in any way.
The General Terms shall be governed by and construed in accordance with English law and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.
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