Terms and Conditions

May 1 2021

 

 

Table of contents

 

1. Definitions

2. Scope

3. Offers and Formation of the Agreement

4. Right of Use and Intellectual Property Rights

5. Obligations on the part of FlowSets

6. Project Leader

7. Other Obligations and Responsibilities on the part of the Customer

8. Price, Invoicing and Payment

9. Term and Termination

10. Suspension and Dissolution

11. Exit Procedure, Continuity

12. Complaints

13. Major Force

14. Liability

15. Processing of Personal Data

16. Confidentiality

17. Transfer

18. Penalty

19. Amendment to the Terms and Conditions

20. Final Provisions

21. Contact Details 

 

 

1. Definitions

 

App: Abbreviation of application. FlowSets has applications so-called web applications that can be used in the browser, which together form the Software. 

Services: all activities undertaken by FlowSets for performance of the Agreement. 

Customer : the natural person or legal entity that has concluded and/or wishes to conclude the Agreement with FlowSets. 

FlowSets : FlowSets is a trade name of FlowSets………., registered with in the UK under number ……., and the provider of the Services. 

Agreement : the agreement concluded between FlowSets and the Customer regarding the provision of the Software. 

Party/Parties: FlowSets and/or the Customer. 

Software : the Software provided by FlowSets to the Customer, usually by way of Software as a Service.

T&C : the Terms and Conditions specified in this document. 

Website : “Flowsets.com”.

 

2. Scope

 

1. All FlowSets offers, quotations and Agreements are exclusively subject to these T&C. The Customer

with whom a contract has been concluded based on these T&C agrees to their applicability to future and/or follow-up agreements with FlowSets.

2. FlowSets explicitly rejects any general terms and conditions or terms and conditions of purchase used by the Customer as well as any provisions deviating from these T&C, unless these have been explicitly accepted by FlowSets in writing.

3. If, for whatever reason, any stipulation or a part thereof in the T&C has no binding effect or only a

partially binding effect, this shall not affect the validity of the remaining stipulations in the T&C or the

remaining part of the relevant stipulation. In that event, FlowSets will be permitted to apply a

replacement stipulation that is l equally permissible and that is as close as possible to the purpose and

content of the void or non-binding stipulation.

4. The T&C also serve for the benefit of third parties engaged by FlowSets for the Agreement or its

performance.

 

3. Offers and Formation of the Agreement

 

1. All offers made by FlowSets are subject to contract unless explicitly stated otherwise. Offers made by FlowSets may not be reproduced or disclosed to third parties without FlowSets’s consent.

2. Unless explicitly stated otherwise, documentation provided by or on behalf of FlowSets with the offer or after conclusion of the Agreement, including information and advice, is subject to contract.

3. Agreements as well as changes thereto are concluded by written or electronic confirmation or order

confirmation by FlowSets. Furthermore, an Agreement is concluded because FlowSets fully or partially

performs an assignment given by the Customer without prior confirmation and/or provides Software to

the Customer.

4. Arrangements made or Agreements concluded with FlowSets employees are not binding upon FlowSets unless they have been explicitly confirmed by FlowSets. An oral offer and/or promise made by FlowSets or one of its subordinates is also not binding unless it has been explicitly confirmed in writing by FlowSets.

5. FlowSets is at all times entitled to refuse orders and/or assignments or to attach further conditions to the delivery and/or performance. 

 

4. Right of Use and Intellectual Property Rights

 

1. All intellectual property rights to the Software and/or accessories, including but not limited to

advice, designs, documentation, quotations, etc., are noted exclusively in FlowSets or its

suppliers/licensors.

2. By concluding the Agreement, FlowSets grants the Customer the non-exclusive and non-transferable right to use the Software. This right of use is strictly personal, not transferable, not guaranteed and not sub-licensable.

3. The right of use ends upon termination of the Agreement.

4. The Customer has no right to and no access to the source code of the Software.

5. The data that the Customer stores or processes by means of the Software is and remains the

property of the Customer or its suppliers. The Customer grants FlowSets a right of use with regard to

these data for, among others, performance of the Agreement, development of the Software and in the

event that FlowSets is obliged to take cognizance of the data concerned under a statutory provision or a court order.

 

5. Obligations on the part of FlowSets

 

1. FlowSets has an obligation to perform to the best of its ability to make and keep the Software

available via the internet and to have it function properly, but can and will never guarantee that the

Software is always available, continuously and without malfunctions.

2. Target times specified by FlowSets for the provision of Services, delivery and/or provision of the

Software are always approximate and are never final target times for FlowSets, unless explicitly agreed otherwise in writing.

3. If FlowSets exceeds any target time, FlowSets will only be in default after written notice of default.

4. FlowSets has the right to temporarily decommission the Software or parts of it for maintenance,

modification or improvement. FlowSets will endeavor to have such decommissioning take place outside office hours as much as possible and will undertake to inform the Customer, if necessary, in a timely manner of the planned decommissioning and the expected duration, but cannot guarantee this and is never liable for damage in connection with such decommissioning.

5. FlowSets undertakes to keep the Software up to date. However, FlowSets may be dependent on its

supplier or suppliers for this. FlowSets is entitled to refrain from installing certain updates or patches if, in its opinion, this does not benefit the correct operation of the Software or is not in the interest of the Customer.

6. FlowSets will respond as quickly as possible to any request for support. A response is defined as a

confirmation of receipt of the request with substantive feedback and an announcement of the action

that FlowSets will take and the resolution time (if applicable). After the request has been received and

the response has been given, FlowSets will work on a solution to the request. The solution will be made available within a reasonable term.

7. A solution as referred to in the previous paragraph may concern a workaround. A workaround is a

solution that does not solve the problem permanently, but limits its impact or provides a route around

the problem. FlowSets will always endeavor to deliver a workaround as soon as possible, followed by a

real solution as soon as it is ready.

8. The times stated by FlowSets for responding or providing a solution are target times and indicative

only. Although FlowSets endeavors to meet these at all times, no guarantees are given that a response or solution will actually be delivered within these target times. There is no liability for damage resulting from failure to meet a target time.

9. FlowSets will make temporary backups of data stored by means of the Software for the purpose of

contingency management. Upon request and against payment of a reasonable fee, FlowSets will make a copy of these data available for use in other systems, to the extent that this is technically possible. 

 

6. Project Leader (IT experienced person)

 

1. The customer is obliged to appoint a Project Leader during the term of the Agreement. The Project

Leader must have the necessary experience, knowledge and expertise. In addition, the Project Leader

must be authorized to represent the Customer and make important configuration and other choices.

2. The Project Leader is the contact person for FlowSets. The Project Leader is also the person

maintaining contact with FlowSets in the event of incidents, defects and/or contingencies related to the Software and its operation.

3. The Customer is obliged to train and inform its employees about the correct operation of the

Software. The Project Leader is the first point of contact for the Customer’s employees. The Customer

is also obliged to instruct its employees in such a way that questions from users and other questions,

incidents, defects, etc. are first presented to the Project Leader. The Customer is obliged to first

consult the FlowSets knowledge base for a solution. If no solution is found there, the Project Leader will contact FlowSets.

4. If the conditions set out in Articles 6.1, 6.2 and 6.3 are not met, and no specific other written

agreements have been agreed on service levels that exclude this clause, FlowSets may charge the

Customer for support costs. The costs will be charged on a case-by-case basis, based on the

applicable hourly rate.

 

7. Other Obligations and Responsibilities on the part of the Customer

 

1. The Customer recognizes that they are jointly responsible for successful performance of the

Agreement.

2. At FlowSets’s request, the Customer will provide the cooperation and/or provide information desired

by FlowSets in a timely manner and in all reasonableness.

3. The Customer is responsible for the hardware and connections required for access to the Software.

FlowSets at all times reserves the explicit right to refrain from supporting or to only partially support

obsolete and unsafe hardware.

4. The Customer is responsible for the use of recent web browsers and operating systems supported

by FlowSets. FlowSets at all times reserves the explicit right to refrain from supporting or to only partially support obsolete and unsafe web browsers.

5. The Customer is responsible for the content, supply, control and migration of all data to be

implemented and processed in the Software.

6. The Customer is not permitted to:

a. allow third parties to use the Software.

b. use the Software for acts that violate UK or other applicable laws and regulations. This includes

storing or distributing information that is libelous, defamatory or racist.

c. use the Software in such a manner as to cause nuisance or inconvenience for other users.

d. cause malfunctions and/or damage in the Software.

e. use the Software in a punishable or unlawful manner.

f. infringe the intellectual property of FlowSets and/or third parties.

g. disclose, reproduce and/or otherwise share data, information and/or know-how of FlowSets with third parties.

7. If FlowSets discovers or reasonably suspects that the Customer is not complying with its obligations

under the Agreement or these T&C, FlowSets is entitled to block the use of the Software by the Customer until further notice and suspend the implementation of the Agreement, or to take any other required measures, without being obliged to pay any compensation. In that case, the Customer is explicitly obliged to continue to meet all contractual and outstanding obligations.

8. The Customer is obliged to protect its account against unauthorized access by third parties by

means of a username and password. In particular, the Customer is required to keep the password

strictly confidential. FlowSets may at all times assume that everything that happens after registration

with the username and password for the Customer's account will take place under the Customer’s

direction and supervision.

9. The Customer is required to inform FlowSets of any suspected unlawful use of the Software.

8. Price, Invoicing and Payment

 

1. FlowSets is entitled to increase prices, pricing models and other fees to compensate for developments such as inflation and other price increases, without explicitly informing the Customer.

2. FlowSets is also entitled to adjust prices, pricing models and other fees at its own discretion for other reasons. If the price increase does not fall within the percentage of 5%, or takes place more than once (1) a year, FlowSets will inform the Customer of the change at least two (2) calendar months before the change takes effect by means of an email and/or in-app notification.

4. If the Customer does not wish to accept the change as referred to in Article 8.2, they can terminate

the agreement with due observance of Article 9. Use of FlowSets after the date of entry into force shall

be considered acceptance of the amended or supplemented terms and conditions.

5. The periodic fee for the Software and its use is always payable prior to the term of one month or

one year agreed in the Agreement. The periodic fee will be invoiced electronically by FlowSets and, if

desired, collected by FlowSets by direct debit, unless otherwise agreed in the Agreement. The periodic

fee may fluctuate i f the composition of the Software and/or the number of users of the Software

changes.

6. Payments other than by direct debit must be made within 30 days from the date of invoice unless

agreed otherwise in writing. If payment is not received within the payment term, FlowSets is entitled to charge statutory interest.

7. All judicial and extrajudicial costs related to the collection of any claim against the Customer will be

at their expense without FlowSets having to notify them.

8. Without explicit written permission from FlowSets, the Customer is not permitted to suspend their

payment obligations towards FlowSets and/or set these off against a claim by the Customer against

FlowSets, for whatever reason.

9. Payments by or on behalf of the Customer will successively serve to pay the extrajudicial collection

costs owed, the judicial costs, the interest owed and then the outstanding principal amounts in order

of age, regardless of the Customer's instructions to the contrary.

 

9. Term and Termination

 

1. The Agreement is entered into for a term of one year, two years, three years, four years, five years

or an indefinite period as set out in the Agreement.

2. Upon expiry of the term set out in the Agreement, the Agreement will be automatically renewed

with the same term.

3. Unless otherwise agreed in the Agreement, the Agreement may always be terminated in writing by

the Parties at the end of the then-valid term, with a notice period of ninety (90) days.

4. If the Customer does not use the Software for a continuous period of six months, FlowSets has the

right to terminate the Agreement.

5. In the event of dissolution or termination as referred to in the previous articles, the following

obligations for Customer towards FlowSets will continue to apply:

- outstanding claims / payments.

- liability.

 

10. Suspension and Dissolution

 

1. In the following cases, FlowSets is entitled to immediately suspend the performance of the Agreement and/or the right to use the Software or to dissolve the Agreement in whole or in part without notice of default and without judicial intervention, without it being obliged to pay any compensation and without prejudice to its further rights:

a) if the Customer does not, not properly or in time, comply with any payment or other obligation

arising from the Agreement concluded with FlowSets or a related Agreement.

b) in the event of bankruptcy, suspension of payments, shutdown, liquidation or full or partial transfer

– as security or otherwise – of the Customer or its business, including the transfer of a significant part

of its claims.

2. In each of the cases referred to in the previous paragraph, all claims of FlowSets against the Customer will be immediately due and payable in full.

3. Obligations which by their nature are destined to continue even after termination or dissolution of

the Agreement will continue to be valid regardless of termination or dissolution of this Agreement.

 

11. Exit Procedure, Continuity

 

1. FlowSets provides standard export options within the Software to be able to export data upon

termination. If the Customer wishes additional assistance from FlowSets, this will, after consultation, be charged on the basis of the applicable hourly rate. FlowSets has the right to suspend the Customer’s data if the Customer does not meet its payment obligation within a reasonable period.

 

12. Complaints

 

1. The Customer is required to inform FlowSets immediately, at least within 10 days after discovery, if there is an incident, defect, damage and/or a shortcoming in the performance of the Agreement by

FlowSets, in default of which any claim against FlowSets in respect of that incident, defect, damage and/or shortcoming will lapse.

2. Complaints in connection with an invoice must be submitted within 30 days after the invoice date,

in default of which the invoice will be considered to be correct and complete and any claim against

FlowSets in that respect will lapse.

3. A complaint from the Customer with regard to performance of the Agreement by FlowSets does not

suspend the payment obligation and other obligations of the Customer towards FlowSets, nor does it

entitle the Customer to setoff.

 

13. Major Force

 

1. In the event of major force, FlowSets is entitled – at its own discretion – to immediately suspend

the performance of the Agreement for the duration of the major force or to dissolve the Agreement

in whole or in part without judicial intervention, without FlowSets being obliged to pay any

compensation.

2. Major force is defined as any circumstance beyond FlowSeta’s control – even if this was already

foreseeable at the time of concluding the Agreement – that permanently or temporarily prevents or

inconveniences the performance of the Agreement, as well as, in so far as not already included

therein, disruptions or outages of the internet, the telecommunication infrastructure, a (D)DoS attack,

power failures, war or risk of war, strikes, epidemics, lack of personnel and other similar events

and/or serious disruptions in the FlowSets company or the company of one of its suppliers, transport

problems and/or the cancellation or late performance by third parties of purchase or other contracts

concluded by FlowSets. This applies regardless of whether the circumstances that cause the major force occur in the UK or in another country.

 

14. Liability

 

1. FlowSets cannot be held liable for damages resulting from incorrect and/or incomplete cooperation

from and/or information provided by or on behalf of the Customer.

2. The FlowSets Software may make suggestions for / be used for the processing of documents and

other data. However, the responsibility for the correctness of everything that is processed by the

Customer with the FlowSets Software, including documents and data, remains noted in the Customer

and its users at all times.

3. Without prejudice to the limitations of FlowSets’s liability agreed elsewhere in the Agreement and

these T&C, FlowSets's liability is limited to the re-performance of the Services, or to compensation of

only the direct damage in connection with an attributable shortcoming in the performance of the

Agreement, up to a maximum of the monthly license value.

4. FlowSets can never be held liable for indirect damages or loss, including consequential damages, lost profits, lost savings, immaterial damage, trading loss or purely financial loss.

5. The Customer indemnifies FlowSets against all claims by third parties, by whatever name, that are

related to the Agreement or its performance by FlowSets for the Customer.

6. Any right of action of the Customer, including due to damage or loss or re-performance of the

Services, lapses if the shortcoming and/or damage is reported too late and in any case lapses one

year after the Services that caused the damage or loss, unless Parties have agreed a different term.

7. The limitation of liability under the T&C also extends to third parties engaged by FlowSets.

 

15. Processing of Personal Data

 

1. If a Customer enters personal data into the Software, both the Customer and FlowSets are subject to the General Data Protection Regulation (GDPR), where the Client is the controller and FlowSets the

processor. The Customer indemnifies FlowSets against any and all claims by third parties/data subjects under the GDPR.

2. Pursuant to the GDPR, the controller and processor must conclude a processing agreement with

regard to the processing of personal data carried out by the Customer or FlowSets. The processing

agreement between FlowSets and the Customer is agreed in a separate document.

3. FlowSets will ensure a level of security appropriate to the risks involved in the processing and the

nature of the personal data to be protected, but only if and in so far as they are located in the FlowSets Services or infrastructure.

4. FlowSets also guarantees that anyone who acts under the authority of FlowSets, in so far as they have access to personal data for which the Customer is responsible, only processes them on the instructions of the Customer.

5. The Customer guarantees that they will only enter personal data into the Services of FlowSets in a

fully lawful manner and bears full responsibility for this.

6. If, in the context of a legal obligation, for example under the GDPR, the Customer is required to

change, delete or hand over data stored in FlowSets's Software, FlowSets will assist with this to the extent possible. The costs of any work can be invoiced separately based on the applicable hourly rate.

 

16. Confidentiality

 

1. The Customer will make every effort to prevent confidential information relating to Software and its

operation being disclosed to or falling into the hands of third parties. Subject to prior written permission from FlowSets, the Customer will not disclose information and/or data provided to them by

FlowSets to third parties and will only disclose it to their staff in so far as this is necessary for use of the Software in accordance with the Agreement

2. The confidentiality obligation included in the previous paragraph does not apply to information in

respect of which the Customer can demonstrate that:

a. the information was already publicly known.

b. the information was generally known.

c. disclosure is based on a legal obligation or court order.

 

17. Transfer

 

1. The Customer is prohibited from assigning, pledging or transferring under any title its claims, rights

and/or obligations under the Agreement to a third party.

2. FlowSets is entitled to assign, pledge or transfer under any title its claims, rights and/or obligations

under the Agreement to a third party. 

 

18. Penalty

 

1. In the event of a breach of the provisions of Articles presented, the Customer forfeits to FlowSets, without notice of default or judicial intervention being required, a one-off, immediately due and payable penalty for each day or part thereof that the Customer is in violation.

2. A penalty payable by the Customer does not affect FlowSets's right to compensation for damage, costs and interest suffered by FlowSets.

 

19. Amendment to the Terms and Conditions

 

1. FlowSets reserves the right to amend or supplement these Terms and Conditions.

2. Amendments also apply to Agreements already concluded with due observance of a period of 30

days after announcement of the amendment by electronic notification. Changes of minor importance

may be made at any time.

3. If the Customer does not want to accept an amendment to these Terms and Conditions, they can

terminate the Agreement up to the date on which the new terms and conditions take effect by this

date or on the date of receipt of the cancellation if it is after the effective date of the change.

 

20. Final Provisions

 

1. UK law applies to all legal relationships between FlowSets and the Customer. Applicability of the

Vienna Convention and foreign legislation is explicitly excluded.

2. Changes in management or legal form do not affect the Agreement.

3. Only the court of the UK, has jurisdiction to hear disputes.

4. The version of any communication, measurements and monitoring by FlowSets that are received or

stored by FlowSets are considered authentic, subject to proof to the contrary to be provided by the

Customer.

5. Partial nullity: In the event that any of the stipulations in the Agreement and/or these T&C are null

and void, this will not affect the validity of the Agreement/Terms and Conditions as a whole. Parties

will draw up one or more new stipulations to replace the null and void ones, which reflect the intention

of the original Agreement/Terms and Conditions as far as possible by law.

 

21. Contact Details

 

If you have any questions, complaints or comments about these Terms and Conditions after reading

them, please do not hesitate to contact us in writing or by email.

FlowSets Kemp House 160 City Road London, United Kingdom.