Floww Markets Introducer Framework Agreement
1. ABOUT FLOWW
1.1 Floww Markets Limited (“Floww Markets”), with its principal place of business located at 107 Cheapside, London, United Kingdom, EC2V 6DN, is authorised and regulated by the Financial Conduct Authority (with firm reference number 980098).
1.2 Floww Markets is the provider of a platform that facilitates: (a) investments by venture capital firms, independent financial advisers, accelerators, family offices, brokers and/or other investors (each, an “Investor”) into companies (each, a “Company”) (such investments being “Investments”); and (b) bidding, allocation, settlement and subsequent administration in relation to such Investments (such platform being “Floww”).
1.3 You (the “Introducer”) wish to act as an introducer for Companies running Fundraising Rounds (as defined below) and/or Investors looking to make Investments into Companies.
1.4 Capitalised terms in this Agreement shall have the meanings set out in Paragraph 1 (Definitions) of Schedule 1 (Glossary of Terms) and this Agreement shall be interpreted in accordance with Paragraph 2 (Interpretation) of Schedule 1 (Glossary of Terms).
2. ACCEPTANCE OF THESE TERMS
2.1 This agreement will be deemed to have been entered into by the Introducer and Floww Markets upon execution of an introducer engagement agreement between the Introducer and Floww Markets (the “Introducer Engagement Agreement”), which should be read in conjunction with the terms of this Agreement.
3. ENGAGEMENT AGREEMENTS
3.1 If the Introducer wishes to provide introduction services to Investors or Companies (“Introduction Services”), it shall enter into an engagement agreement with such Investors or Companies in the form made available on Floww (an “Engagement Agreement”). For the avoidance of doubt, by entering into this Agreement, the Introducer is not obliged to provide any Introduction Services to any Companies or Investors, except as agreed in an Engagement Agreement.
3.2 Notwithstanding that Floww Markets is not a party to the Engagement Agreements, the Introducer shall:
(a) completely and properly perform or procure the complete and proper performance of; and
(b) be liable to Floww Markets for any failure of the Introducer to completely and properly perform,
the obligations set out in each Engagement Agreement.
3.3 Floww Markets may make available functionality permitting the Introducer to make use of a third party introducer, whereby the Introducer: (a) makes an introduction to the third party introducer in respect of a Company’s Fundraising Round (if the Introducer is party to an Engagement Agreement with a Company); or (b) receives an introduction in respect of a Company’s Fundraising Round (if the Introducer is party to an Engagement Agreement with an Investor). The use of a third party introducer by the Introducer shall be conditional on: (i) such third party introducer having entered into an introducer framework agreement with Floww Markets (or otherwise having been approved by Floww Markets in writing to act as an introducer on Floww); and (ii) the Introducer being jointly and severally liable with such third party introducer for that third party introducer’s acts, omissions or defaults.
3.4 The Introducer hereby appoints Floww Markets to accept payment of any fees due to it from Investors and/or Companies, as set out in the Engagement Agreements entered into with such parties under the terms of this Agreement.
4. COMMENCEMENT AND DURATION
4.1 This Agreement shall come into effect on the Effective Date and shall continue in force until terminated in accordance with its terms (or until such date as otherwise agreed in writing between the Parties) (the “Term”).
4.2 Each Engagement Agreement shall commence on the Engagement Effective Date and shall continue in force for the Engagement Term unless terminated in accordance with its terms.
4.3 The termination of this Agreement shall result in the termination of all Engagement Agreements then in force to which the Introducer is a party. The early termination of an Engagement Agreement shall not result in the early termination of this Agreement.
5. PROCESSING SERVICES
5.1 Floww Markets agrees that, in respect of any Company being introduced to Investors (“Introduced Company”) or Investor being introduced to Companies (“Introduced Investor”) pursuant to the Introducer’s provision of Introduction Services, it shall provide the following services (together, the “Processing Services”):
(a) Floww Markets will provide functionality on Floww to enable the Introduced Company or Introduced Investors (as applicable) to enter into an Engagement Agreement with the Introducer;
(b) any Investment Offer that is submitted by an Introduced Investor will be presented to the Company that is carrying out the Fundraising Round on an aggregated and anonymised basis via the functionality on Floww from time to time; and
(c) subject to Clause 5.2, any Investment Acceptance given by an Introduced Company or received by an Introduced Investor (as applicable) shall progress to Settlement in accordance with the methodology for allocating shares to Investors (“Allocation Methodology”), as may be updated from time to time and made available to the Investor and Company on request.
5.2 The Introducer shall provide a copy of its Allocation Methodology (and any subsequent updates) in respect of each Fundraising Round and agrees that the most recent Allocation Methodology received by Floww Markets when an Introduced Investor submits an Investment Offer shall apply to that Fundraising Round and be implemented by Floww Markets. For the avoidance of doubt, Floww Markets is not required to process an allocation to an Introduced Investor where it has not received an Allocation Methodology from the Introducer in respect of that Fundraising Round.
5.3 The Introducer acknowledges and agrees that Floww Markets may, at any time, update any Allocation Methodology where it deems it necessary (acting in its sole discretion) to avoid an unexpected, unforeseen or extraordinary allocation or where such Allocation Methodology contains a manifest error.
5.4 Floww Markets makes no representations or warranties regarding the competency or suitability of any Introduced Company or Introduced Investor (as applicable), and shall have no liability, of whatever nature, under this Agreement or otherwise for any Losses incurred by the Introducer arising out of or in connection with any act or omission of any Investor or Company (as applicable).
5.5 The Introduction Services will not involve the provision of any advice regarding the suitability of any potential or actual investment, or any other regulated investment advice.
6. PROCESSING CHARGES
6.1 Following Settlement, in consideration of the provision of the Processing Services by Floww Markets and the rights granted to the Introducer under this Agreement, the Introducer shall pay Floww Markets the fees, costs and disbursements, as further detailed on Floww from time to time or as agreed in writing between the parties (together, the “Processing Charges”).
6.2 Where the Company was introduced to Floww Markets by the Introducer (as determined by Floww Markets, acting reasonably) in order for the Company to initiate a specific Fundraising Round prior to the initiation of that Fundraising Round, certain of the Processing Charges shall not be payable by the Introducer in respect of that Fundraising Round, as detailed on Floww from time to time.
7. INVOICING AND PAYMENT
7.1 The Introducer hereby irrevocably authorises and instructs Floww Markets or its Affiliate to deduct the Processing Charges from the Introduction Charges (as defined by the Engagement Agreement), such charges having already been accepted by Floww Markets on behalf of the Introducer pursuant to any Engagement Agreements entered into under the terms of this Agreement and deducted by Floww Markets from the subscription amounts paid by Investors in respect of a Fundraising Round.
7.2 Following Settlement of a Fundraising Round, Floww Markets shall invoice the Introducer for the Processing Charges and, to the extent not already paid through a deduction made pursuant to Clause 7.1, the Introducer shall pay the invoiced amount within thirty (30) days after receiving the invoice.
8. REPORTING
8.1 The Introducer shall provide Floww Markets with such reports containing such information and in such format as may be reasonably requested by Floww Markets from time to time.
9. AUDIT AND COOPERATION
9.1 Floww Markets (and any of Floww Markets’ Regulators) and its or their authorised representatives shall have the right to audit the Introducer’s compliance with this Agreement on giving seven (7) days’ written notice to the Introducer, unless such audit is required for reasons of suspected fraud or criminal activity, required by a Regulator or where the Introducer or one of its Affiliates is non-compliant with its security obligations under this Agreement, in which case such audits may be at any time and without restriction. At Floww Markets’ option, this audit may cover documents only, or may include an onsite audit, subject to Floww Markets notifying the Introducer of the identity of any onsite auditors and giving confirmation that any external auditors have entered into appropriate confidentiality agreements with Floww Markets. The Introducer shall procure that Floww Markets is provided with such assistance as it requires for such audits.
9.2 The Introducer shall at all times cooperate with Floww Markets (and any Regulator) in connection with its provision of the Introduction Services, or its receipt of the Processing Services, and shall provide all such assistance as Floww Markets may require in dealing with Regulators as is relevant to such services.
10. CONFIDENTIAL INFORMATION
10.1 Each Party receiving Confidential Information (the “Recipient Party”) undertakes to the other Party (the “Disclosing Party”) to:
(a) hold all Confidential Information of the Disclosing Party which it obtains in relation to this Agreement in strict confidence;
(b) not disclose, or authorise the disclosure of, the Disclosing Party’s Confidential Information to any third party other than in accordance with Clauses 10.2 and 10.4;
(c) not allow unauthorised access to, or modification or deletion of, the Disclosing Party’s Confidential Information;
(d) not use, or authorise anyone to use, the Disclosing Party’s Confidential Information for any purpose other than the performance of the Recipient Party’s obligations or the exercise of its rights or the receipt of any benefits under this Agreement; and
(e) promptly notify the Disclosing Party of any suspected or actual unauthorised disclosure, access, modification, deletion or use of the Disclosing Party’s Confidential Information of which the Introducer becomes aware and promptly take all reasonable steps that the Disclosing Party may require in order to prevent, stop or remedy such unauthorised activity.
10.2 As long as the Disclosing Party remains responsible for its Representatives’ compliance with the obligations set out in this Clause 10, either Party may disclose the other Party’s Confidential Information to its Representatives, but only to the extent, and provided, that such persons:
(a) need to know the Confidential Information disclosed to them;
(b) have been informed in writing of the confidential nature of the Confidential Information and the purpose for which it may be lawfully used; and
(c) comply with the terms of this Agreement in respect of the Confidential Information disclosed to them.
10.3 Clause 10.1 shall not apply to Confidential Information to the extent that:
(a) the Confidential Information was, is or becomes available to the Recipient Party on a non-confidential basis from a person who, to the Recipient Party’s knowledge, is not bound by a confidentiality agreement with the Disclosing Party or otherwise prohibited from disclosing the information to the Recipient Party;
(b) such disclosure is required in order to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Agreement, or any novation or proposed novation of this Agreement which is permitted by Clause 12 (Assignment, Novation and Subcontracting).
(c) such Confidential Information has been independently developed by the Recipient Party without reference to the Confidential Information of the Disclosing Party; or
(d) the Disclosing Party has approved in writing the particular use or disclosure of the Confidential Information.
10.4 Each Party may disclose the other Party’s Confidential Information if, and to the extent that, it is required to do so by any governmental authority, court, relevant stock exchange or otherwise by Applicable Law, provided that, to the extent it is permitted to do so, it shall:
(a) notify the other Party as soon as practicable upon becoming aware of the obligation to disclose and, to the extent that it is prevented from notifying the other Party, it shall use commercially reasonable endeavours to challenge any restriction on disclosure of the request to the other Party, which shall include applying to the court for the removal of such restriction where applicable;
(b) at the other Party’s request, use commercially reasonable endeavours (and, where applicable, in cooperation with the other Party) to avoid or limit the disclosure and obtain assurances as to the confidentiality and use of the data from the body to whom the Confidential Information is to be disclosed.
10.5 The Introducer shall not, and shall procure that its Affiliates and subcontractors shall not, issue any public announcement concerning the existence, subject matter or terms of this Agreement, the wider transactions contemplated by it, the relationship between the Parties or any information which is disclosed to the Introducer as a result of or pursuant to this Agreement without the prior written approval of Floww Markets except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10.6 On expiry or termination of this Agreement, or earlier on Floww Markets’ request, each Party will:
(a) destroy (if so requested) or return to the other Party all documents and materials (and any copies) in its possession or the possession of its subcontractors containing, reflecting, incorporating the other Party’s Confidential Information;
(b) erase all the other Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) certify in writing to the other Party that it has complied with the requirements of this Clause 10.6,
provided that a Recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
10.7 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
11. NON-SOLICITATION
11.1 Unless otherwise specifically agreed in writing between the Parties, the Introducer shall not, directly or indirectly, solicit or engage any Company in order for it to run its Fundraising Round, nor any Investor in order for it to make an investment in a Fundraising Round, in each case, other than via Floww during the period from the Effective Date and ending twelve (12) months following the termination of this Agreement.
11.2 Breach of the condition in Clause 11.2 will render the Introducer liable to pay Floww Markets liquidated damages equal to two (2%) per cent of the total value of shares allocated in the non-Floww fundraising round. Such payment shall not limit any other rights or remedies otherwise available to Floww Markets and shall not operate to cap the Introducer’s liability in respect of the relevant violation, provided that if Floww Markets brings an action based on the same circumstances that gave rise to the payment, any future award of damages arising as a result of that action shall, to the extent that the award does not take such payment into account, be reduced by the amount of such payment.
12. ASSIGNMENT, NOVATION AND SUBCONTRACTING
12.1 The Introducer may not assign or purport to assign, sub-license, transfer (by way of novation), create any trust, create a charge over or otherwise dispose of or deal with any of its rights or subcontract, transfer (by way of novation) or otherwise dispose of or deal with any of its obligations under this Agreement without the prior written consent of Floww Markets.
12.2 Nothing in this Agreement shall prevent or restrict Floww Markets from assigning, sublicensing, transferring, creating a charge over or otherwise disposing of any of its rights or from subcontracting, transferring or otherwise disposing of any of its obligations under this Agreement or novating this Agreement to any Floww Markets Group member. Floww Markets shall not assign any part of its rights or obligations under this Agreement, other than to a Floww Markets Group member, without the consent of the Introducer (such consent not to be unreasonably withheld, conditioned or delayed).
12.3 If the Introducer subcontracts the provision of any of the Introduction Services pursuant to this Agreement (including where an Introducer uses a third party introducer in accordance with Clause 3.3 (Engagement Agreement)), then:
(a) the Introducer shall be liable to Floww Markets for the acts and omissions of such subcontractors as if they were the acts or omissions of the Introducer under this Agreement;
(b) such subcontracting shall not relieve the Introducer of its obligation to perform its obligations under this Agreement; and
(c) the Introducer shall remain the single point of contact for Floww Markets with respect to the subcontractors.
12.4 A subcontractor will only be entitled to further subcontract the performance of the Introduction Services with Floww Markets’ prior written approval. If Floww Markets does approve such subcontracting, then the provisions in this Agreement relating to subcontracting will also apply to this onward subcontracting.
13. REQUIRED CONSENTS
13.1 Subject to any express provision in this Agreement stating that Floww Markets shall obtain any third party or regulatory approval, licence, consent or right, the Introducer shall, or shall procure that the relevant subcontractor shall, obtain all third party and regulatory approvals, licences, consents, filings, registrations, permissions and rights necessary to meet its obligations under this Agreement or for Floww Markets to receive the benefit of the terms of this Agreement (including obtaining membership of any trade body or organisation necessary to be able to perform its obligations).
14. LIMITS OF LIABILITY
14.1 Nothing in this Agreement limits or excludes a Party’s liability:
(a) for death or personal injury arising out of its negligence or that of its Personnel;
(b) for Losses suffered by the other Party arising out of the first Party’s (or its Personnel’s) fraud or fraudulent misrepresentation; and
(c) to the extent that it cannot be legally limited or excluded by law.
14.2 Subject to Clause 14.1, Floww Markets shall have no liability to the Introducer, whether in contract (including under any indemnity or warranty), in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
(a) loss of profit;
(b) loss of revenue;
(c) loss of anticipated savings;
(d) loss of contract, business or opportunity;
(e) loss of goodwill; or
(f) wasted expenditure,
in each case whether direct or indirect, or any indirect or consequential Losses of any kind whatsoever and however caused.
14.3 Subject to Clause 14.1, Floww Markets’ total liability to the Introducer, whether in contract (including under any indemnity or warranty), in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for any Losses incurred or suffered by the Introducer shall be limited for all claims in aggregate to the greater of:
(a) a sum equal to fifty (50%) per cent the total Processing Charges paid to Floww Markets under this Agreement; and
(b) ten thousand (£10,000) Pounds Sterling.
14.4 Any action against Floww Markets must be brought by the Introducer within ninety (90) days of the relevant cause of action arising.
15. INSURANCE
15.1 The Introducer undertakes to obtain and maintain at its own expense a policy or policies of insurance (including professional indemnity, product liability, employer’s liability and cyber insurance) with a recognised and duly regulated insurance company authorised to offer insurance products within the United Kingdom. The insurance shall cover the Introducer against potential liabilities under or in relation to this Agreement, to an extent and to limits that would be reasonably expected under the standards of Good Industry Practice and Applicable Law (whichever is higher), provided that the requirements stated herein shall not be construed in any way as a limit of the Introducer’s liability under this Agreement or as constituting any waiver by Floww Markets of any of its rights or remedies under this Agreement.
16. SET OFF
16.1 Subject to Clause 16.2, all payments made by any Party under this Agreement, shall be made free from any set-off, counterclaim or other deduction or withholding of any nature whatsoever, except for deductions or withholdings required to be made by Applicable Law. If any deductions or withholdings are required by Applicable Law to be made from any such payments, the amount of the payment shall be increased by such amount as will, after the deduction or withholding has been made, leave the recipient of the payment with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding.
16.2 Floww Markets may at any time or times set off any liability of the Introducer to Floww Markets against any liability of Floww Markets to the Introducer, whether any such liability is present or future, liquidated or unliquidated, under this Agreement or not and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, Floww Markets may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Floww Markets of its rights under this Clause 16.2 shall be without prejudice to any other rights or remedies available to it under this Agreement or otherwise.
17. INTELLECTUAL PROPERTY RIGHTS
17.1 Nothing in this Agreement shall operate to transfer ownership of any Intellectual Property Rights:
(a) belonging to either Party prior to the Effective Date; or
(b) in any items that are independently developed by either Party otherwise than under this Agreement.
17.2 Subject to the Introducer’s continuing compliance with the terms of this Agreement, Floww Markets hereby grants to the Introducer a non-exclusive, worldwide, non-transferable, non-sublicensable, revocable licence for the duration of this Agreement to access and use the Processing Services solely for the Introducer’s obligations under this Agreement.
17.3 To the extent that the Introducer provides Floww Markets with any data relating to its business under or in connection with this Agreement (the “Introducer Data”), the Introducer hereby grants to Floww Markets a non-exclusive, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use, adapt, translate, copy and analyse the Introducer Data for the purposes of providing the Processing Services, improving and delivering Floww Markets’ products and related services (including the Processing Services) and undertaking analysis and research. The Introducer represents and warrants that such use of the Introducer Data will not infringe or violate the rights (including Intellectual Property Rights) of any third party.
17.4 The Introducer agrees to use the Processing Services solely in accordance with all applicable laws and regulations and to not do, or omit to do, anything that would put Floww Markets in breach of applicable laws or regulations.
18. TERMINATION
18.1 The Introducer may terminate this Agreement immediately upon notice to Floww Markets if Floww Markets:
(a) is subject to an Insolvency Event; or
(b) commits a material breach of this Agreement which is not capable of remedy or, if capable of remedy, is not remedied within thirty (30) days after the Introducer has given it written notice requiring such breach to be remedied.
18.2 Floww Markets may terminate this Agreement immediately upon notice to the Introducer:
(a) if the Introducer:
(i) is subject to an Insolvency Event; or
(ii) commits a material breach of this Agreement which is not capable of remedy or, if capable of remedy, is not remedied within thirty (30) days after the Introducer has given it written notice requiring such breach to be remedied; or
(b) for convenience at any time by giving not less than ninety (90) days’ notice to the Introducer.
18.3 Notwithstanding Clause 27 (Remedies Cumulative), the Introducer may not terminate this Agreement except as provided in Clause 18.1.
19. CONSEQUENCES OF TERMINATION
19.1 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement that existed at or before the date of termination or expiry.
19.2 On termination or expiry of this Agreement for any reason:
(a) Floww Markets shall cease to provide access to the Processing Services, and the Introducer may not make use of Floww unless it enters into a new agreement with Floww Markets;
(b) all rights granted to the Introducer under this Agreement shall cease and the Introducer will no longer be able to access the Processing Services;
(c) the Introducer shall cease all activities authorised by this Agreement; and
(d) the Introducer shall immediately pay to Floww Markets any sums due to Floww Markets under this Agreement.
19.3 Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
20. NOTICES
20.1 Any communication to be given in connection with this Agreement shall be in writing, in the English language and sent by a Permitted Method to a Notified Address.
20.2 The “Permitted Method” means any of the methods set out in column (1) below. A notice given by the Permitted Method will be deemed to be given and received on the date set out in column (2) below.
(1) Permitted Method | (2) Date on which notice deemed given and received |
Delivered by hand | on written acknowledgment or receipt by an officer or an employee of the receiving party |
Pre-paid post or prepaid recorded or special delivery | three (3) Business Days after the date of posting |
Courier | on production of evidence from the relevant courier that the notice was successfully delivered |
two (2) hours after it was sent provided that no notification informing the sender that the message has not been delivered is received by the sender | |
Only in the case of a communication or delivery of information from Floww Markets to the Company, via Floww to the relevant account and/or portal to which the relevant recipient has access (including where such account and/or portal is password protected) | at the time the communication is uploaded |
20.3 The “Notified Address” of each of the Parties (as amended in accordance with Clause 20.5) is as set out below:
(a) in the case of Floww Markets:
Address: Floww Markets Limited, 9th Floor 107 Cheapside, London, United Kingdom, EC2V 6DN
E-mail address: support@floww.io
Marked for the attention of: Floww Markets Team
(b) in the case of the Introducer, the contact details submitted via the functionality available on Floww from time to time.
20.4 If, under the preceding provisions of this Clause 20, a communication would otherwise be deemed to have been received outside normal business hours in the place of receipt, being 9:00 a.m. to 5:00 p.m. on a Business Day, it shall be deemed to have been received at 9:00 a.m. on the next Business Day.
20.5 A Party may notify the other Party of a change to its name, relevant person or address for the purposes of Clause 20.1, provided that such notification shall only be effective on:
(a) the date specified in the notification as the date on which the change is to take place; or
(b) if no date is specified or the date specified is less than five (5) Business Days after the date on which notice is deemed to have been served, the date falling five (5) Business Days after notice of any such change is deemed to have been given.
21. NO PARTNERSHIP OR AGENCY
21.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between either Party, constitute either Party the agent of the other Party, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
21.2 Unless specifically authorised in writing by Floww Markets, the Introducer shall not have any authority to incur expenditure in the name or for the account of Floww Markets or hold itself out in any way as having authority to bind Floww Markets.
22. NO EXCLUSIVITY
22.1 This Agreement does not constitute an exclusive arrangement and Floww Markets may perform or retain third parties to perform any of the Introduction Services or services similar to the Introduction Services during the Term.
23. ANTI-BRIBERY AND CORRUPTION
23.1 The Introducer and its Affiliates shall not accept or give any commission or gift or other financial benefit or inducement from or to any person or party in connection with this Agreement and shall ensure that its employees, agents and subcontractors shall not accept or give any such commission, gift, benefit or inducement, and shall immediately give Floww Markets details of any such commission, gift, benefit or inducement which may be offered.
23.2 The Introducer and its Affiliates shall be solely responsible for complying, have to their best knowledge complied, and shall comply, with Applicable Law regarding anti-bribery and corruption and have to their best knowledge not taken and shall not take or fail to take any actions, which act or omission would subject Floww Markets or its Affiliates to liability under such Applicable Law.
23.3 The Introducer and its Affiliates shall implement and maintain an effective and appropriate internal control system and a compliance program for the prevention of bribery and corruption, money laundering and other crimes.
23.4 Without prejudice to Floww Markets’ right to conduct audits in accordance with Clause 9.1 (Audit and Cooperation), Floww Markets shall be entitled to conduct regular due diligence surveys and audits, staffed as Floww Markets deems appropriate, to verify the Introducer and its Affiliates’ past and current compliance with Applicable Law and the Introducer shall cooperate fully with and respond in a timely manner and in good faith, including making relevant documents and Personnel available, to facilitate any such due diligence surveys or audits. The Parties agree that any non-compliance, even partial, with the abovementioned declarations and undertakings (including any change of circumstance without prior notice to Floww Markets), which Floww Markets reasonably believes may result in adverse consequences for Floww Markets, shall be considered a material breach that is incapable of remedy under this Agreement and, as a consequence, shall entitle Floww Markets to immediately terminate this Agreement and all obligations to pay consideration thereunder, by delivering notice, which shall include a brief summary of the circumstances or the legal proceedings demonstrating such non-compliance.
24. FURTHER ASSURANCE
24.1 Each Party shall, and shall procure that each of its Affiliates shall, at its own cost, promptly execute and deliver all such documents, or arrange for the execution and delivery of, and do all such things, as the other Party may from time to time reasonably require for the purpose of giving full effect to the provisions of this Agreement and to secure for the other Party the full benefit of the rights, powers and remedies conferred upon it under this Agreement.
24.2 The Introducer shall, upon request from Floww Markets, provide Floww Markets with evidence that the Introducer, its Affiliates, subcontractors and service personnel have satisfied, and/or are continuing to satisfy, their obligations in this Agreement.
25. WAIVER
25.1 A failure or delay by a Party to exercise any right or remedy provided under (or to enforce any provision of) this Agreement or by Applicable Law, whether by conduct or otherwise, shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by Applicable Law, whether by conduct or otherwise, shall preclude or restrict the further exercise of that or any other right or remedy.
25.2 A waiver of any right or remedy under this Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
26. VARIATION
26.1 Floww Markets may, in its discretion make changes to this Agreement from time to time. Any changes:
(a) to the duration of this Agreement;
(b) resulting in an increase in the Processing Charges; and/or
(c) that Floww Markets consider, in its sole discretion, to be sufficiently material so as to constitute a material change,
(each a “Material Change”) will be notified in writing to the Introducer no less than thirty (30) days prior to the proposed Material Change coming into effect. No later than the expiry of the thirty (30) day notice period, the Introducer must either: (i) accept the Material Change, and continue its use of the Processing Services on the terms of this Agreement (as amended by the relevant Material Change); or (ii) notify Floww Markets in writing that it does not accept the proposed Material Change, in which case this Agreement will terminate and Clauses 19.1 to 19.3 (Consequences of Termination) shall apply. Any failure by the Introducer to notify Floww Markets in writing that it does not accept the proposed Material Change within the thirty (30) day notice period will be deemed as acceptance of such Material Change. Any Material Change required to comply with Applicable Law will become effective on notification.
26.2 Any change that is not a Material Change will be notified on Floww. The Introducer shall be responsible for monitoring any such notification e-mails and variations to this Agreement regarding non-Material Changes.
26.3 The continued use of Floww by the Introducer following implementation of any variation to this Agreement will constitute acceptance of such variation.
26.4 Subject to the rest of this Clause 26, no variation or amendment of this Agreement shall be valid unless it is in writing and duly executed by or on behalf of all of the Parties to this Agreement. Unless expressly agreed, no variation or amendment shall constitute a general waiver of any provision of this Agreement, nor shall it affect any rights or obligations under or pursuant to this Agreement which have already accrued up to the date of variation or amendment, and the rights and obligations under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are varied or amended.
27. REMEDIES CUMULATIVE
27.1 The rights, powers, privileges and remedies of each of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as such Party (in its absolute discretion) considers appropriate and are in addition to its rights, powers, privileges and remedies under Applicable Law.
27.2 Without prejudice to any other rights or remedies that Floww Markets may have, the Introducer agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by the Introducer. Accordingly, Floww Markets shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.
28. FORCE MAJEURE
28.1 Neither Party shall be liable for failure or delay in performing any of its obligations under or pursuant to this Agreement if such failure or delay is due to a Force Majeure Event and it shall be entitled to a reasonable extension of the time for performing such obligations as a result of such Force Majeure Event.
28.2 A Party that is seeking to rely on Clause 28.1 can only do so provided that:
(a) it promptly notifies the other Party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c) it has used commercially reasonable endeavours to avoid or mitigate the effect of the Force Majeure Event to carry out its obligations under this Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
28.3 If the period of any resulting delay or non-performance continues for thirty (30) days, Floww Markets may terminate this Agreement immediately upon written notice to the Introducer. Such termination shall be without prejudice to the rights of Floww Markets in respect of any breach of this Agreement occurring prior to such termination.
29. INVALIDITY
29.1 Where any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, then such provision shall be deemed to be severed from this Agreement and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the Parties under this Agreement and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Agreement.
30. REPUTATION
30.1 The Introducer shall not do anything or engage in any activity which is likely to adversely affect or damage Floww Markets’ good name and/or reputation and shall procure that its employees, officers, consultants, contractors and agents and subcontractors do not do any such thing or engage in any such activities.
31. ENTIRE AGREEMENT
31.1 This Agreement sets out the entire agreement and understanding between the Parties in respect of the subject matter of this Agreement and, save to the extent expressly set out in this Agreement, supersedes and extinguishes any prior drafts, agreements, undertakings, representations, warranties, promises, assurances and arrangements of any nature whatsoever, whether or not in writing, relating thereto.
31.2 The Parties acknowledge that neither has entered into this Agreement in reliance upon, nor shall either Party have any claim or remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision made (whether made innocently or negligently) by or on behalf of the other Party, any of its Representatives or any other person which is not expressly set out in this Agreement.
31.3 Nothing in this Agreement shall exclude any liability for or remedy in respect of fraud, including fraudulent misrepresentation. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
32. COSTS
32.1 Except as otherwise provided in this Agreement, each Party shall bear its own costs arising out of or in connection with the preparation, negotiation and implementation of this Agreement.
33. THIRD PARTY RIGHTS
33.1 No third party entity will have the right to enforce any provision of this Agreement as a third party beneficiary
33.2 Each Party agrees to the other that their respective rights to terminate, rescind or agree any amendment, variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.
34. SURVIVAL
34.1 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
35. COUNTERPARTS
35.1 This Agreement may be executed in any number of counterparts. Each counterpart shall constitute an original of this Agreement but all the counterparts together shall constitute but one and the same instrument.
35.2 Delivery of a counterpart of this Agreement by e-mail attachment shall be an effective mode of delivery.
36. GOVERNING LAW AND JURISDICTION
36.1 This Agreement and any Dispute arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England.
36.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any Disputes, and waive any objection to proceedings before such courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum.
SCHEDULE 1
GLOSSARY OF TERMS
1. DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires:
“Affiliate” means, in relation to any company, any Subsidiary or Holding Company of that company or any Subsidiary of any such Holding Company;
“Agreement” means the Terms and Conditions, together with the Schedule attached hereto and any other documents expressly incorporated by reference;
“Allocation Methodology” has the meaning set out in Clause 5.1(c) (Processing Services);
“Applicable Law” means any of the following, to the extent that it applies to a Party:
(a) any applicable statute, directive, order, instrument, enactment, regulation, bylaw, ordinance, legislation, or any other legislative measures or decisions having the force of law, treaties, conventions and other agreements between states, or between states and supranational bodies, rules of common law, customary law and equity and all civil or other codes and all other laws in force from time to time;
(b) any binding court order, judgment, decision or decree;
(c) any applicable industry code, policy or standard enforceable by law; and
(d) any applicable direction, statement of practice, policy, rule or order that is set out by a Regulator that is binding on the Parties,
in each case in any jurisdiction;
“Business Day” means any day other than a Saturday, Sunday or public holiday in England;
“Company” has the meaning set out in Clause 1.2 (About Floww);
“Confidential Information” means, in respect of a Party or its Representatives, information in any form (whether written, electronic, graphic, oral or otherwise recorded or preserved) that falls within any of the following categories:
(a) it has been provided by the Party and was marked confidential (or a similar designation) or was stated to be confidential at the time of disclosure;
(b) it concerns the customers, finances, sales, marketing, products, the Introducer’s, employees, business operations, forecasts or management of, or it would ordinarily be deemed by a reasonable person to be confidential or proprietary to:
(i) in the case of Floww Markets’ Confidential Information: Floww Markets and/or its Affiliates; or
(ii) in the case of the Introducer’s Confidential Information: the Introducer, the subcontractors and/or the Introducer’s Affiliates;
(c) information contained in, or relating to, the items licensed to the other Party pursuant to this Agreement; or
(d) information identified in this Agreement as Confidential Information of a Party;
“Disclosing Party” has the meaning set out in Clause 10.1 (Confidential Information) of the Terms and Conditions;
“Dispute” means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with this Agreement, including a dispute regarding the existence, formation, validity, interpretation, performance or termination of this Agreement or the consequences of its nullity and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with this Agreement;
“Effective Date” means the date on which Floww Markets notifies the Investor in writing that it is authorised and regulated by the Financial Conduct Authority;
“Engagement Agreement” has the meaning set out in Clause 3.1 (Engagement Agreements);
“Engagement Effective Date” means, in relation to each Engagement Agreement, the date on which the Engagement Agreement becomes effective, as specified in that Engagement Agreement;
“Engagement Term” means, in relation to each Engagement Agreement, the period commencing on the Engagement Effective Date and ending on the termination or expiry of that Engagement Agreement in accordance with its terms;
“Floww” has the meaning set out in Clause 1.1 (About Floww);
“Floww Markets Group” means:
(a) Floww Markets and all its Affiliates; and
(b) any company which is directly or indirectly ten (10%) per cent or more owned by any company referred to in (a);
“Floww Markets Terms” means the terms of service agreed between Floww Markets and an Investor or Company (as applicable) for the provision certain investment and settlement services on Floww, as may be in force from time to time;
“Force Majeure Event” means an act of God (excluding pandemics), fire, flood, earthquake, war, armed conflict, act of terrorism, riot, civil commotion, governmental action (excluding regulatory change), labour dispute (save where such dispute involves Personnel of the non-performing Party or its Affiliates or subcontractors) and any similar event beyond the reasonable control of the non-performing Party;
“Formal Notices” means:
(a) notices invoking, or relating to, dispute resolution or any litigation between the Parties;
(b) notices invoking termination of this Agreement;
(c) notices given in connection with a Force Majeure Event pursuant to Clause 28 (Force Majeure) of the Terms and Conditions;
(d) a change to the contact details specified in Clause 20 (Notices) of the Terms and Conditions; or
(e) any other notices stated in this Agreement to be a Formal Notice;
“Fundraising Round” has the meaning set out in the Floww Markets Terms;
“Good Industry Practice” means the degree of skill, diligence, prudence and foresight which would ordinarily be expected to be observed by a skilled and experienced professional of international repute engaged in the same or similar type of undertaking as that of the Introducer under the same or similar circumstances;
“Holding Company” means a holding company as defined in section 1159 of the Companies Act 2006) or a parent undertaking (as defined in section 1162 of the Companies Act 2006) and in interpreting those sections for the purposes of this Agreement, a company is to be treated as the holding company or a parent undertaking (as the case may be) of another company even if its shares or interests in the other company are registered in the name of (i) a nominee, or (ii) any party holding security over those shares or interests, or (iii) that secured party’s nominee;
“Insolvency Event” in relation to a Party means:
(a) it 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 section 123 of the Insolvency Act 1986;
(b) it 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 any of its creditors other than for the 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;
(c) it applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(d) 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 the other party other than for the 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;
(e) it makes an application to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the such Party;
(f) the holder of a qualifying floating charge over the assets of such Party has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of such Party or a receiver is appointed over all or any of the assets of such Party; or
(h) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the such Party’s assets and such attachment or process is not discharged;
“Intellectual Property Rights” means any and all rights (including moral rights) available under patent, copyright, trade mark, service mark, trade name, product configuration, industrial design, rights in computer software, business names and domain names, database rights, or trade secret law or any other statutory provision or common law doctrine with respect to designs, formulas, algorithms, procedures, methods, techniques, ideas, know-how, programs, subroutines, tools, inventions, creations, improvements, works of authorship, other similar materials, and all recordings, graphs, drawings, reports, analyses, other writings, and any other embodiment of the foregoing, in any form, whether or not specifically listed herein, which may subsist in any part of the world, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights for their full term;
“Introduction Services” has the meaning set out in Clause 3.1 (Engagement Agreements);
“Investment” has the meaning set out in Clause 1.2 (About Floww);
“Investment Acceptance” has the meaning set out in the Floww Markets Terms;
“Investment Offer” has the meaning set out in the Floww Markets Terms;
“Investor” has the meaning set out in Clause 1.2 (About Floww);
“Losses” means all losses, liabilities, damages, costs, charges, and expenses (including management time, legal fees on a solicitor and own client basis, other professional advisers’ fees, and costs and disbursements of investigation, litigation, settlement, judgment, interest, fines, penalties and remedial actions);
“Material Change” has the meaning set out in Clause 26.1 (Variation);
“Notified Address” has the meaning set out in Clause 20.2 (Notices);
“Party” means Floww Markets or the Introducer (as applicable) (and “Parties” shall mean both of them);
“Permitted Method” has the meaning set out in Clause 20.2 (Notices);
“Personnel” means employees, workers, agents, consultants, other representatives, contractors and subcontractors (including subcontractors in the case of the Introducer), and each of their respective employees, workers, agents, consultants, other representatives, contractors and subcontractors;
“Processing Charges” has the meaning set out (i) in Clause 6.1 (Processing Charges) and (ii) under the Introducer Engagement Agreement;
“Processing Services” mean the services set out in Clause 5.1(a) (Processing Services);
“Recipient Party” has the meaning set out in Clause 10.1 (Confidential Information) of the Terms and Conditions;
“Regulator” means any supervisory or government agency, body or authority having regulatory or supervisory authority over Floww Markets or the Introducer, or Floww Markets’ or the Introducer’s assets, resources or business or over the Processing Services or Introduction Services;
“Representatives” means, in relation to a Party, its respective Affiliates and the directors, officers, employees, contractors, subcontractors, agents, legal advisers, lenders, accountants, consultants and financial advisers of that Party and/or any of its respective Affiliates;
“Settlement” means the allocation of shares by the Company in accordance with the Floww Markets Terms;
“Subsidiary” means a subsidiary (as defined in section 1159 of the Companies Act 2006) or a “subsidiary undertaking” (as defined in section 1162 of the Companies Act 2006) and in interpreting those sections for the purposes of this Agreement, a company is to be treated as shareholder or a member of a subsidiary or a subsidiary undertaking (as the case may be) even if its shares or interests are registered in the name of (i) a nominee, or (ii) any party holding security over those shares or interests, or (iii) that secured party’s nominee;
“Term” has the meaning set out in Clause 4.1 (Commencement and Duration); and
“Terms and Conditions” means the opening paragraphs, recitals and Clauses 1 (About Floww) to 36 (Governing Law and Jurisdiction) of this Agreement.
2. INTERPRETATION
2.1 In this Agreement, unless the context otherwise requires:
(a) every reference to a particular law shall, except where the context otherwise requires, be construed also as a reference to: (i) subordinate legislation made under it; and (ii) except to the extent that any liability of a Party is increased or extended, all such laws as amended, re-enacted, consolidated (with or without modification) or replaced or as their application or interpretation is affected by other laws from time to time;
(b) any reference to a “Schedule”, unless the context otherwise requires, is a reference to the relevant schedule to this Agreement, and any reference to a “Clause” or “Paragraph”, unless the context otherwise requires, is a reference to a clause in the Terms and Conditions and a paragraph in the relevant Schedule, respectively;(c) any reference to this “Agreement”, unless the context requires otherwise, includes the Terms and Conditions and the Schedule;
(d) the Clause, Section and Paragraph headings, sub-headings and the contents page in this Agreement are included for convenience purposes only and shall not affect the interpretation of this Agreement;
(e) use of the singular in this Agreement includes the plural and vice versa and references to one gender include any other gender;
(f) any reference to a Party or the Parties includes their successors and permitted assigns;
(g) references to a “person” includes any individual, partnership, body corporate, corporation sole or aggregate, state or agency of a state, and any unincorporated association or organisation, in each case whether or not having separate legal personality;
(h) references to a “company” includes any company, corporation or other body corporate wherever and however incorporated or established;
(i) references to times of the day are to London time unless otherwise stated, and any reference to “day” means a period of twenty-four (24) hours running from midnight to midnight;
(j) references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court official or any other legal concept or thing shall in respect of any jurisdiction other than England be deemed to include what most nearly approximates in that jurisdiction to the English legal term;
(k) unless otherwise defined, terms used in their relevant business context shall be interpreted in accordance with their generally understood meaning in that industry or business context;
(l) words introduced by the word “other” shall not be given a restrictive meaning because they are preceded by words referring to a particular class of acts, matters or things;
(m) the rule known as the ejusdem generis rule shall not apply, and accordingly general words shall not be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words and the words “includes”, “including”, “in particular” or any similar expression shall be construed as illustrative and without limitation;
(n) any reference to “writing” or “written” includes email; and
(o) any reference to any agreement or other instrument shall, except where expressly provided to the contrary, include any valid amendment, variation or novation (in whole or in part) of or to such agreement or other instrument.
2.2 If there is a conflict between parts of this Agreement, an Engagement Agreement and any other document incorporated by reference into this Agreement, then such conflict shall be resolved by giving precedence in the following order (unless expressly agreed otherwise by the Parties in any document incorporated by reference):
(a) first, the Terms and Conditions; then
(b) second, this Schedule 1; then
(c) any document attached to, or incorporated by reference into, this Agreement; then
(d) third, any Engagement Agreement; and then
(e) any document attached to, or incorporated by reference into, an Engagement Agreement.