Floww Pool Limited Terms of Service
1. ACCEPTANCE OF THESE TERMS
1.1 You (the “Company”) are a company that intends to make use of the Introduction Services (as defined below) provided by Floww Pool Limited (the “Introducer”) in order to be introduced to one or more of the venture capital firms, independent financial advisers, accelerators, family offices, brokers and/or other investors (“Investors”) on the Floww platform (“Floww”).
1.2 This agreement will be deemed to have been entered into by the Company and Introducer upon the execution of an engagement agreement between the Company, Introducer and Floww Markets (the “Engagement Agreement”)
1.3 The terms and conditions set out in Schedule 1 (Engagement Terms) shall apply and be incorporated into this Agreement.
2. INTRODUCTION SERVICES
2.1 The Company hereby appoints the Introducer to facilitate the introduction of Investors to a fundraising round being carried out by the Company (a “Fundraising Round”) on Floww in accordance with the terms of service entered into between Floww Markets Limited (“Floww Markets”) and the Company (the “Floww Markets Terms”), and hereby consents to all relevant information uploaded to Floww by the Company to be shared with the Introducer. The Company acknowledges that the Introducer may introduce the Fundraising Round to other third party introducers.
2.2 Pursuant to the Company’s appointment of the Introducer in respect of the Fundraising Round:
(a) the parties shall agree (using the functionality available on Floww from time to time) a minimum number of shares that may be allocated via the Introducer in the Fundraising Round (the “Minimum Allocation”). Where the Investment Offers made by introduced Investors in respect of the Fundraising Round meet or exceed the Minimum Allocation, the Company shall make an allocation for not less than the Minimum Allocation in accordance with the Floww Markets Terms. For the avoidance of doubt, the Company may allocate more shares than the Minimum Allocation and, where the Investment Offers do not meet or exceed the Minimum Allocation, the Company will not allocate shares in excess of the Investment Offers received;
(b) the Introducer shall facilitate the introduction of the Company’s Fundraising Round to Investors by sharing details of the Fundraising Round with Investors or other approved introducers using the functionality available on Floww from time to time (the “Introduction Services”);
(c) the aggregate value of all Investment Offers (as defined in the Floww Markets Terms) made by Investors through the Introducer in respect of the Fundraising Round shall be displayed to the Company by Floww Markets Limited using the functionality available on Floww from time to time. The Company acknowledges and agrees that the relevant Investors shall remain anonymous until Settlement (as defined in the Floww Markets Terms); and
(d) subject to Clause 2.3, any Settlement of all Investment Offers from introduced Investors shall take place in accordance with the Introducer’s allocation methodology (as may be updated from time to time).
2.3 The Introducer shall make its allocation methodology for the Fundraising Round available to the Company on request using the functionality available on Floww from time to time. The Introducer may also elect to make available a summary of such allocation methodology using the functionality on Floww from time to time (and the Company acknowledges and agrees that such summary is provided for convenience purposes only and shall not affect the interpretation of the full form methodology).
2.4 In performing or procuring the Introduction Services, the Introducer shall:
(a) have absolute discretion to choose whether to act in the Company’s Fundraising Round and the Investors to introduce to the Fundraising Round;
(b) use reasonable care and skill; and
(c) comply with all laws applicable to the Introducer in its capacity as a provider of the Introduction Services.
2.5 The Introducer makes no representations or warranties regarding the competency or suitability of any Investor, and shall have no liability, of whatever nature, under this Agreement or otherwise for any losses incurred by the Company arising out of or in connection with any act or omission of any Investor.
2.6 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.
3. INTRODUCTION CHARGES
3.1 In consideration of the provision of the Introduction Services by the Introducer and the rights granted to the Company under this Agreement, the Company shall pay the Introducer the fees, costs and disbursements set out on Floww from time to time or as agreed between the parties in writing (the “Introduction Charges”).
3.2 The Company acknowledges and agrees that the Introducer has appointed Floww Markets or its Affiliate (as defined in the Floww Markets Terms) to accept the Introduction Charges on behalf of the Introducer and deduct such Introduction Charges from the Subscription Amount (as defined in the Floww Markets Terms) paid by the Investor prior to the Company’s receipt of such amounts, subject to and in accordance with the terms of service entered into between the Company and Floww Markets, and acknowledges and agrees that payment of such Introduction Charges as set out in this Clause 3.1 will be deemed to constitute completion of provision of the Introduction Services and full discharge of the Company’s payment obligation to the Introducer.
4. NON-SOLICITATION
4.1 Unless otherwise specifically agreed in writing between the parties, the Company shall not, directly or indirectly, solicit or engage any Investor that has been introduced in accordance with this Agreement in order for such Investor to make a direct investment in respect of the Fundraising Round other than via the Introducer on Floww from the date the Company issued the Teaser (as defined in the Floww Markets Terms) in respect of the Fundraising Round until twelve (12) months following such date.
4.2 Breach of the condition in Clause 4.1 will render the Company liable to pay the Introducer liquidated damages equal to two (2%) per cent of the total value of shares allocated to such Investors by the Company. Such payment shall not limit any other rights or remedies otherwise available to the Introducer and shall not operate to cap the Company’s liability in respect of the relevant violation, provided that if the Introducer 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.
5. THIRD PARTY RIGHTS.
5.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
5.2 The parties agree that they may vary, rescind or terminate this Agreement (whether or not in a way that varies or extinguishes rights or benefits in favour of the Company) without Floww Markets’ consent.
Schedule 1 – Engagement Terms
1. INTRODUCTION
1.1 Unless expressly agreed otherwise, these engagement terms (the “Terms”) shall apply to and be incorporated in the terms set out on the preceding pages (the “Covering Pages”) entered into between the client entity identified therein (“you”, “your”) and the introducing entity identified therein (“we”, “us”, “our”) (together, the “parties”).
1.2 These Terms and the Covering Pages (together, the “Agreement”) set out the terms on which we will provide you with the services set out in the Covering Pages (the “Introduction Services”).
2. SCOPE OF USE, SERVICES AND LICENCES
2.1 We shall perform, or procure the performance of, the Introduction Services.
2.2 Nothing in this Agreement shall operate to transfer ownership of any intellectual property rights: (a) belonging to you or us prior to the Engagement Effective Date (defined below); or (b) in any items that are independently developed by you or us otherwise than under this Agreement.
2.3 Subject to your continuing compliance with the terms of this Agreement, we hereby grant to you a non-exclusive, worldwide, non transferable, non sublicensable, revocable licence for the duration of this Agreement to access and use the Introduction Services solely for your internal business purposes.
2.4 To the extent that you provide us with any data relating to your business in connection with our provision of the Introduction Services (“Your Data”), you hereby grant to us a non-exclusive, worldwide, transferable, sub-licensable, irrevocable, perpetual licence to use, adapt, translate, copy and analyse Your Data for the purposes of providing the Introduction Services, improving and delivering our products and related services (including the Introduction Services) and undertaking analysis and research. You represent and warrant that such use of Your Data will not infringe or violate the rights (including intellectual property rights) of any third party.
2.5 You agree to use the Introduction Services solely in accordance with all applicable laws and regulations and to not do, or omit to do, anything that would put us in breach of applicable laws or regulations.
3. INTRODUCTION CHARGES
3.1 You agree to pay the amounts identified in the Covering Pages in accordance with this Clause 3 and the Covering Pages.
3.2 If requested by you, we shall provide you with a written invoice for the Introduction Charges deducted in accordance with the Covering Pages.
3.3 The Introduction Charges are exclusive of any taxes, levies or fees that may apply to the Introduction Services, and which will be borne by you and paid on demand.
4. LIMITS OF LIABILITY
4.1 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.
Subject to clause 4.1, neither party shall have any liability to the other party, 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.
4.2 Subject to Clauses 4.1, each party’s total liability to the other party, 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 other party shall be limited for all claims in aggregate to the greater of: (a) a sum equal to fifty (50%) per cent the total Introduction Charges paid under this Agreement; and (b) ten thousand (£10,000) Pounds Sterling.
4.3 Any action against under this Agreement must be brought within ninety (90) days of the relevant cause of action arising.
5. CONFIDENTIAL INFORMATION
5.1 Subject to Clause 5.2 and 5.3:
(a) both parties (each, as applicable, the “Recipient”) shall, for the duration of this Agreement and thereafter, keep confidential any confidential information (whether or not marked as such) (“Confidential Information”) disclosed to it by or on behalf of the other party (the “Disclosing Party”) or otherwise obtained, developed or created by the Recipient; and
(b) the Recipient shall: (i) only use the Confidential Information in connection with the performance of its obligations or exercise of its rights under this Agreement; and (ii) take all action reasonably necessary to secure the Disclosing Party’s Confidential Information against theft, loss or unauthorised disclosure.
5.2 The restrictions on use or disclose of information in Clause 5.1 shall not apply to information that: (a) is generally available in the public domain, other than as a result of a breach of an obligation under this Clause 5; (b) is already in the Recipient’s lawful possession at the time of disclosure; or (c) subsequently comes lawfully into the possession of the Recipient from a third party.
5.3 The Recipient may disclose the Confidential Information to its professional advisors or if, and to the extent that, such information is required to be disclosed in accordance with applicable laws and regulations or to a regulator.
5.4 You may at your discretion state on its website that it makes use of the Introducer as part of its business.
5.5 Subject to Clauses 5.4, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by applicable laws and regulations or to a regulator (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
6. TERM AND TERMINATION
6.1 This Agreement shall commence on the date it is accepted in accordance with Clause 1.1 (Acceptance of these terms) (the “Engagement Effective Date”) and continue in full effect until the date of completion of the Fundraising Round, unless terminated earlier in accordance with this Clause 6.
6.2 This Agreement shall terminate with immediate effect where the introducer framework agreement entered into between the Introducer and Floww Markets (under which this Agreement was entered into) terminates.
6.3 We may terminate this Agreement immediately by written notice to you if you: (a) fail to pay any amounts due under this Agreement within thirty (30) days of the due date; (b) suffer an insolvency event; or (c) are in material breach of any term of this Agreement and either that breach is incapable of remedy or you have failed to remedy that breach within thirty (30) days after receiving written notice requiring you to remedy such breach.
6.4 You may terminate this Agreement immediately by written notice to us if we are in material breach of any of our obligations under this Agreement and either that breach is incapable of remedy or we have failed to remedy that breach within thirty (30) days after receiving written notice requiring us to remedy such breach.
6.5 On termination or expiry of this Agreement for any reason, all rights granted to you under this Agreement shall cease and you shall immediately cease using the Introduction Services.
6.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement that have accrued up to the date of termination or expiry. 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.
6.7 Unless mutually agreed otherwise in the Covering Pages, this Clause 6 sets out the only grounds on which this Agreement may be terminated prior to its expiry.
7. NOTICES
7.1 Any notice given to a party under or in connection with this Agreement shall be in writing, in the English language and shall be delivered by hand, registered post, or e-mail to the contact details submitted using the functionality available on Floww from time to time.
7.2 Any notice shall be deemed to have been received: (a) if delivered by hand, on written acknowledgment or receipt by an officer or an employee of the receiving party; (b) if sent by pre-paid post or prepaid recorded or special delivery, three (3) business days after the date of posting; (c) if sent by courier, on production of evidence from the relevant courier that the notice was successfully delivered; and (d) if sent by e-mail, two (2) hours after it was sent provided that no notification informing the sending that the message has not been delivered is received by the sender.
7.3 This Clause 7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
7.4 A party may notify the other party of a change to its name, relevant person or address for the purposes of Clause 7.1, 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.
8. MISCELLANEOUS
8.1 Interpretation. In this Agreement, any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
8.2 Precedence. Unless expressly agreed otherwise in the Covering Pages, if there is any inconsistency between these Terms and the Covering Pages, these Terms shall prevail.
8.3 Force Majeure. The Introducer shall not be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or delay result from events, circumstances or causes beyond its reasonable control.
8.4 Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this Clause 8.4, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
8.5 Entire Agreement. These Terms, together with the Covering Pages, set out the entire agreement and understanding between the parties in respect of the subject matter of this Agreement, and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any statement, undertakings, representations, warranties, promises or assurances (whether made innocently or negligently) other than as expressly set out in this Agreement.
8.6 Assignment. Neither party may assign, novate, subcontract or otherwise dispose of any or all rights and obligations under this Agreement without the prior written consent of the other party, provided that the Introducer may at any time and without requiring the Company’s consent: (a) assign its rights under this Agreement to any other provider of Introduction Services which has entered into an introducer framework agreement with Floww Markets; and/or (b) subcontract its obligations under this Agreement to any third party.
8.7 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
8.8 Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
8.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered (as appropriate) shall constitute a duplicate original, but all the counterparts together shall constitute the one agreement.
8.10 No Agency or Partnership. 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
8.11 Further Assurance. 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.
8.12 Variation. No amendment to this Agreement will be effective unless it is made in writing and signed by or on behalf of the parties.
8.13 Governing Law and Jurisdiction. This Agreement and any non-contractual rights or obligations arising out of, relating to, or having any connection with it shall be governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with the foregoing.