1.1 These terms and conditions (the “Agreement“) apply to you when you use, install, display, copy or otherwise access:
1.1.1 the Orbit Accounts software and any content contained within the Orbit Accounts Software (such as templates, clipart, photo images, video and/or audio media files (“Orbit Accounts“); and
1.1.2 any other software we own or license and make available on kashflow.com (the “Site“) from time to time including any software applications and any content contained within the Software (such as templates, clipart, photo images, video and/or audio media files (the “Software“).
1.2 Orbit Accounts and the Software are owned by or licensed to us (“KashFlow Software Limited“), our company number is 05674043 and our registered address is Edmund House, 27 St James’ Road, Dudley, West Midlands, DY1 3JD.
1.3 It is important that you, either as an individual or a single entity, (the “Partner“) read these terms carefully before using Orbit Accounts and/or the Software. By clicking “I accept”, you agree to be bound by the Agreement. If you do not agree to the terms of the Agreement, do not install display, access or use the Orbit Accounts or the Software.
2.1.1 a personal, non-exclusive, non-transferable licence to use the Orbit Accounts and the offline desktop data entry system called RapidFire, as either a single individual or single entity; and
2.1.2 a personal, non-exclusive, non-transferable licence to incorporate any content contained within the Orbit Accounts or the Software (such as templates, clipart, photo images, video and/or audio media files which are collectively referred to as the “Digital Content“) into the Partner’s own original work and publish, display, or distribute that work.
3.1 Subject to the terms of the Agreement, a Partner may:
3.1.1 Manage a Partner Account through Orbit Accounts; and
3.1.2 Use any function or facility within the Partner Account provided by KashFlow Software Limited, who reserves the right to limit or remove entirely any function or facility at any time, without notice and without giving any reason.
4.1 The Partner shall not:
4.1.1 modify or alter the whole or any part of Orbit Accounts or the Software nor merge any part of it with other software nor separate any components of Orbit Accounts or the Software nor, save to the extent and in the circumstances permitted by law, create derivative works from, or, reverse engineer, decompile, disassemble or otherwise derive source code from Orbit Accounts or the Software or attempt to do any of these things;
4.1.2 copy Orbit Accounts or the Software, including but not limited to, graphics, image, script or code;
4.1.3 assign rent, transfer, sell, disclose, deal in, make available or grant any rights in Orbit Accounts or the Software or the Digital Content in any form to any person without the prior written consent of KashFlow Software Limited;
4.1.4 remove alter, obscure, interfere with or add to any proprietary notices, labels, trade marks, names or marks on, annexed to, or contained within the Orbit Accounts or the Software;
4.1.5 use Orbit Accounts or the Software in any manner that infringes the intellectual property or other rights of KashFlow Software Limited or any other party;
4.1.6 use Orbit Accounts or the Software to provide on-line or other database services to any other person;
4.1.7 use Orbit Accounts or the Software in a manner that may bring KashFlow Software Limited into disrepute;
4.1.8 create scandalous, obscene, defamatory, or immoral works using the Digital Content nor use the Digital Content for any purpose prohibited by law;
4.1.9 use or permit the use of the Digital Content or any part thereof as a trademark or service mark, or claim any proprietary rights of any sort in the Digital Content or any part thereof;
4.1.10 use the Digital Content in electronic format, on-line, or in multimedia applications unless (a) the Digital Content is incorporated for viewing purposes only and (b) no permission is given to download and/or save the Digital Content for any reason; or
4.1.11 Partner may not sell, supply, resell, sublicense, or otherwise make available the Digital Content for use or distribution separately or detached from a product or web page created by Partner. For example, the Digital Content may be used as part of a web page design, but may not be made available for downloading separately or in a format designed or intended for permanent storage or re-use by others.
KashFlow Software Limited is under no obligation to undertake any upgrade at any particular time and any upgrade is at the discretion of KashFlow Software Limited. KashFlow Software Limited will endeavour to undertake any maintenance to Orbit Accounts or the Software within a reasonable time and KashFlow Software Limited makes no guarantee that any maintenance will be carried out within a specified time or within any duration. KashFlow Software Limited will carry out any upgrading or maintenance with the minimum disruption as possible.
6.1 Upon acceptance by KashFlow Software Limited of the Partner, the Partner may immediately subscribe to use Orbit Accounts or the Software on an annual basis at the published rate at the time of applying for a licence, using a valid credit or debit card.
6.2 The Partner acknowledges that any promotion is subject to any additional terms and conditions of that promotion which shall be published on the Site and KashFlow Software Limited reserves the right to withdraw any promotion at any time for any reason without notice.
6.3 Upon the opening of the Partner Account, the Partner will be required to input any subscription details to fully activate the Partner Account, including but not limited to credit or debit card details.
6.4 In the event of non-payment of any sums due, howsoever accrued, the Partner agrees for KashFlow Software Limited to debit any amounts due from the stored credit or debit card when such amounts fall due, or any time thereafter.
6.5 The Partner acknowledge that any payments made by credit or debit card are subject to any additional terms and conditions of the third party payment processor and any payment will constitute an acceptance of those terms.
7.1 The Partner acknowledges that:
7.2 Orbit Accounts and the Software are protected by copyright laws and international copyright treaties, as well as other intellectual property laws. All rights not expressly granted to the Partner in the Agreement are reserved to KashFlow Software Limited or its licensors. Orbit Accounts or the Software are licensed to the Partner, not sold.
7.3 All title to the copyright and all other intellectual property rights in and to Orbit Accounts or the Software, any data (including but not limited to, username, passwords) its accompanying documentation and any copy made by a Partner are the exclusive property of and remain with KashFlow Software Limited and/or its licensor(s).
7.4 Orbit Accounts and the Software are KashFlow Software Limited’s exclusive property and constitute confidential information and a valuable trade secret of KashFlow Software Limited and any unauthorised copying of Orbit Accounts or the Software (including but not limited to, any data), or failure to comply with any of the provisions of the Agreement (each, a “Terminable Event“), will result in automatic termination of the Agreement and all licences and sub-licences granted under the Agreement. If a Termination Event occurs Partners must destroy all copies of any data required to gain access to the Software.
7.5 The Digital Content is owned by KashFlow Software Limited or licensed to KashFlow Software Limited from a third party. Subject to adhering to the terms of the Agreement and to the restrictions in this clause unless expressly granted to Partners all rights to the Digital Content are reserved to KashFlow Software Limited and/or its licensors.
8.1 To the extent that KashFlow Software Limited gets access to any personal data (as defined in the Data Protection Act 1998) from the Partner or during the provision of any services (e.g. support services) to the Partner, the Partner agrees that KashFlow Software Limited acts as a data processor (as defined in the Data Protection Act 1998) for such personal data. The Partner authorises KashFlow Software Limited to appoint sub-contractors as further data processors on the Partner’s behalf provided that such further data processors are engaged on terms providing equivalent protections in relation to such personal data to those set out in the Agreement.
8.2 KashFlow Software Limited will process such personal data only in accordance with the Agreement and the Partner’s instructions and will ensure that it has taken steps to ensure the reliability of those of its employees who are used to process such personal data.
8.3 KashFlow Software Limited warrants that it has appropriate technical and organisational processes and procedures in place to safeguard against any unauthorised or unlawful processing and against accidental loss or destruction of, or damage to the personal data.
9.1 The parties recognise that under the Agreement 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 Agreement which is designated as confidential by the disclosing party or is otherwise clearly confidential in nature constitutes “confidential information”.
9.2 Each party agrees not to use confidential information for any purpose other than the purpose for which it is supplied under the Agreement 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, group companies, auditors or as may be required by law or any legal or regulatory authority.
9.3 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 Agreement.
9.4 This Clause 9 shall survive termination of the Agreement, however arising.
10.1 KashFlow Software Limited makes no warranty that at any time Orbit Accounts or the Software and the servers it is hosted on, under normal use, be free from any defects, including but not limited to, any periods of inactivity, slow performance, bugs, viruses, worms or any defect that prevent any Partner from any access to or use of Orbit Accounts or the Software;
10.2 KashFlow Software Limited makes no warranty that at any time Orbit Accounts or the Software will be accessible by any internet browser (or any particular version) on any internet or network connection;
10.3 Subject to the Partner having paid for all subscriptions to Orbit Accounts or the Software in full and upon termination of any access accounts of Orbit Accounts or the Software, KashFlow Software Limited may, at its absolute and final discretion, refund any subscriptions. KashFlow Software Limited will not have any liability to, or any obligation to, make any refunds for whatever reason.
10.4 KashFlow Software Limited does not warrant that the operation of Orbit Accounts or the Software will be uninterrupted or error free or that Orbit Accounts or the Software will meet a Partner’s specific requirements. Nothing in the Agreement shall exclude or limit any statutory rights which cannot be excluded or limited due to a Partner acting as a consumer.
11.1 Subject to the provisions of Clause 11.3, this Clause 11 sets out the entire financial liability of KashFlow Software Limited (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Partner for:
11.1.1 any breach of the Agreement;
11.1.2 any use made by the Partner of Orbit Accounts, the Software or the Digital Content or any part of them; and
11.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
11.2 Except as expressly and specifically provided in the Agreement:
11.2.1 The Partner assumes sole responsibility for results obtained from the use of Orbit Accounts and the Software and the Digital Content by the Partner, and for conclusions drawn from such use. KashFlow Software Limited shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to KashFlow Software Limited by the Partner in connection with Orbit Accounts or the Software, or any actions taken by KashFlow Software Limited at the Partner’s direction;
11.2.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement; and
11.2.3 Orbit Accounts, the Software and the Digital Content are provided to the Partner on an “as is” basis.
11.3 Nothing in the Agreement excludes the liability of KashFlow Software Limited:
11.3.1 for death or personal injury caused by KashFlow Software Limited’s negligence; or
11.3.2 for fraud or fraudulent misrepresentation.
11.4 Subject to Clauses 11.2 and 11.3:
11.4.1 KashFlow Software Limited shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
11.4.2 KashFlow Software Limited’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total fees paid for the Software during the 12 months immediately preceding the date on which the claim arose.
11.5 The Partner acknowledges that the limitations contained in this Clause 11 are necessary to enable KashFlow Software Limited to provide the Software at its current prices. If special modification to these limitations is required KashFlow Software Limited will agree appropriate amendment for payment of a higher than current price for the Software.
12.1 The Partner shall defend, indemnify and hold harmless KashFlow Software Limited against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Partner’s use of Orbit Accounts, the Software and/or Digital Content, provided that:
12.1.1 the Partner is given prompt notice of any such claim;
12.1.2 KashFlow Software Limited provides reasonable co-operation to the Partner in the defence and settlement of such claim, at the Partner’s expense; and
12.1.3 the Partner is given sole authority to defend or settle the claim.
12.2 KashFlow Software Limited shall, subject to Clause 12.5, defend the Partner, its officers, directors and employees against any claim that Orbit Accounts, the Software or Digital Content infringes any worldwide patent effective as of the date of the Partner’s first use of the Orbit Accounts, the Software or Digital Content, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Partner for any amounts awarded against the Partner in judgment or settlement of such claims, provided that:
12.2.1 KashFlow Software Limited is given prompt notice of any such claim;
12.2.2 the Partner provides reasonable co-operation to KashFlow Software Limited in the defence and settlement of such claim, at KashFlow Software Limited’s expense; and
12.2.3 KashFlow Software Limited is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, KashFlow Software Limited may procure the right for the Partner to continue using the Services, replace or modify the services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 (two) business days’ notice to the Partner without any additional liability or obligation to pay liquidated damages or other additional costs to the Partner.
12.4 In no event shall KashFlow Software Limited, its employees, agents and sub-contractors be liable to the Partner to the extent that the alleged infringement is based on:
12.4.1 a modification of Orbit Accounts, the Software or the Digital Content by anyone other than KashFlow Software Limited; or
12.4.2 the Partner’s use of Orbit Accounts, the Software or the Digital Content in a manner contrary to the instructions given to the Partner by KashFlow Software Limited; or
12.4.3 the Partner’s use of Orbit Accounts, the Software or the Digital Content after notice of the alleged or actual infringement from KashFlow Software Limited or any appropriate authority.
12.5 The foregoing states the Partner’s sole and exclusive rights and remedies, and KashFlow Software Limited’s (including KashFlow Software Limited’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13.1 The Agreement shall, unless otherwise terminated as provided in this Clause 13 commence on the date the Partner first uses Orbit Accounts (“the Effective Date“) and shall continue for the initial term referred to on the Site (the “Initial Subscription Term“) and, thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a ”Renewal Period”), unless:
13.1.1 either party notifies the other party of termination, in writing (notice given by email to be acceptable as writing for the purposes of this clause), at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
13.1.2 as otherwise terminated in accordance with the provisions of the Agreement.
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the ”Subscription Term”.
13.2 Limited term for Trial Version of the Software
13.2.1 The Licence pertaining to any trial, locked, demonstration or other non-standard version of Orbit Accounts or the Software (all referred to as a “Trial Version“) shall expire in accordance with the terms set out in such Trial Version. On the expiration of the licence for the Trial Version, a Partner will need to purchase a full licence of Orbit Accounts or the Software (as applicable at the time) and upgrade it to continue use.
13.2.2 KashFlow Software Limited may terminate the Agreement if a Partner fails to comply with any of the terms of the Agreement. In such event all licences and sub-licences granted under the Agreement shall end immediately and a Partner must destroy all data necessary for the Partner to gain access to and use of the Software.
13.3 Suspension of access to Orbit Accounts/the Software
13.3.1 KashFlow Software Limited reserves the right to immediately suspend (without notice) any access to and use of Orbit Accounts or the Software, for any period determined by KashFlow Software Limited where:
(a) An outstanding debt, of any amount, remains unpaid, or under dispute;
(b) Any chargeback is made on any credit or debit card;
(c) The account is inactive for a period of seven days or more;
(d) Any suspension is required to enable compliance with any terms of the Agreement; and
(e) There has been a breach of any terms of the Agreement.
14.1 Each party agrees to comply with any and all applicable laws and regulations. The Agreement (and any dispute, controversy, proceedings or claims of whatever nature arising out of or in any relation to the Agreement or its formation) shall be governed by English law.
14.2 Each party hereby irrevocably and unconditionally accepts the exclusive jurisdiction of the courts of England over any claim or matter arising under or in connection with the Agreement.
15.1 If any provision of the Agreements held invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed and if possible revised to the extent necessary to cure the invalidity, illegality or non-enforceability, and the remainder of the Agreement shall continue in full force and effect.
15.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
KashFlow Software Limited reserves the right to make any variation to the Agreement with immediate effect and the Partner acknowledges and accepts the variation by notice on the Site from time to time. The Partner further acknowledges that each access and use (whether continuous or not) of Orbit Accounts, the Software or the Digital Content will constitute an acceptance of any terms in the Agreement, whether varied or not.
A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
The Partner shall not, without the prior written consent of the KashFlow Software Limited, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
Apart from KashFlow Software Limited’s licensors and authorised suppliers, a person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Agreement.
20.1 The Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
20.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in the Agreement.
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