Terms & Conditions UK
1. INTERPRETATION
1.1. Definitions. In these Terms, the following definitions apply:
Account: the Merchant’s account with Floom, acting as agent for the Merchant. Agreed Purposes: for the processing, receipt and delivery of Orders and Third Party Orders and the completion of the other obligations under this Agreement.
Agreed Unit Price: the agreed unit price for the Goods, being the Retail Price less the Commission and Payment Processing Fees.
Consumer Service Fee: a fixed fee of £4.00 (or local currency equivalent, e.g. $5.00 in the US) that is added by Floom to the Retail Price set by the Merchant and included in the total product price displayed to the Customer. This fee is retained by Floom and is not included in the Agreed Unit Price payable to the Merchant.
Agreement: the legally binding agreement which will come into existence between Floom and the Merchant upon acceptance by the Merchant of these Terms.
Applicable Consumer Laws: shall include, without limitation, the Consumer Rights Act 2015, the Data Protection Legislation, the Consumer Customer Contracts Regulations 2013, the Electronic Commerce (EC Directive) Regulations 2002, the Consumer Rights (Payment Surcharges) Regulations 2012 and the Consumer Protection from Unfair Trading Regulations 2008.
Approved Packaging: the Floom “Sender’s note” card and envelope, as well as promotional packaging provided to the Merchant by Floom.
Business Day: a day (other than public holidays) when banks in London are open for business.
Commission: twenty five per cent (25%) of the Retail Price on all sales through the website or zero point nine nine per cent (0.99%) of the total transacted sales price of all sales through the Merchant Website unless otherwise agreed between Floom and the Merchant
Complaint Form: the form/information contained in Schedule 1 for submission regarding any complaint regarding goods & services supplied by a third party through the premium platform
Confidential Information: any information belonging to either party that is confidential in nature including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind, information relating to its business, affairs, plans, customers, clients, suppliers and products.
Customer: a person who places an Order for Goods from the Merchant on the Website or offline through Floom.
Customer Contract: the agreement for the sale of Goods entered into between a Customer and the Merchant, with Floom acting as agents as currently available at https://www.floom.com/pages/terms-and-conditions-sale and updated by Floom from time to time provided that material amends shall be approved by the Merchant, such approval not to be unreasonably withheld or delayed.
Data Protection Legislation: (i) the General Data Protection Regulation, Regulation (EU) 2016/679; (ii) the Data Protection Act 2018; (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; (iv) any laws which implement any such laws; and (v) any laws that that replace, extend, re-enact, consolidate or amend any of the foregoing.
Delivery Cost:
the delivery cost for the Goods that can be charged to Customers: 1. For all orders in the United Kingdom, delivery fees are charged per delivery. Only one delivery fee is incurred per Order regardless of the number of Goods purchased.
a) £9.99 per delivery for all standard weekday, same-day weekday and weekend deliveries; or
b) such other delivery cost as Floom may notify to the Merchant from time to time.
Floom: Floom Limited, incorporated in England and Wales with company number 09682018, whose registered office is at 1 New Fetter Ln, London EC4A 1AN
Force Majeure Event: as defined in clause 32 of these Terms.
FloomX premium features: features and services offered by floom on the FloomX platform to customers with a premium membership, including but not limited to hosting of the Merchant Website and use of FloomX website designs
Goods: the goods (or any part of them) set out in an Order.
Insolvency Event: where either party is dissolved, becomes insolvent, fails or is unable or admits in writing its inability to pay its debts, institutes or has instituted against it proceedings seeking a judgement of insolvency; has a resolution passed for its winding up or liquidation; seeks or becomes the subject of the appointment of an administrative receiver or similar official in respect of its assets or enters into any arrangement or composition with its creditors.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Local Regulations: laws and regulations applicable to the Goods in the United Kingdom and any jurisdiction in which the Merchant operates including Applicable Consumer Laws.
Merchant: the person or company supplying the Goods to a Customer as principal under the terms of this Agreement and the applicable Customer Contract.
Merchant Website: The merchant branded website, hosted and created by Floom for the Merchant
Monthly Subscription Fee: means the monthly fee agreed between the parties, paid by the Merchant to Floom in accordance with clause 14.2.
Order: an order for the Goods by the Customer made via the Website or an agreed upon offline order through Floom customer service as detailed in clause 3.
Order Confirmation: as defined in clause 3.2 of these Terms. Order Email: as defined in clause 3.2 of these Terms.
Payment Processing Fees: as to the sale of Goods, any amounts a payment processor charges Floom as a result of or in connection with that sale.
Permitted Recipients: the parties to this Agreement, the employees of each party, any Third Party selected to supply the Third Party Goods or Third Party Services, any third parties engaged to perform obligations in connection with this Agreement, and including without limitation delivery providers.
Photograph: any photograph of the Goods uploaded to the Website by the Merchant and/or Floom from time to time.
Photographic Guidelines: the guidelines provided by Floom to a Merchant regarding the Photographs of the Goods that will be displayed on the Website.
Premium Membership: as defined in clause 14.2 of these Terms. Price: the price due to the Merchant by Floom as detailed in clause 11.1.
Recipient: the person identified in the Order Confirmation to receive the
Goods. Retail Price: the retail price for each of the Goods as displayed on the Website.
Shared Personal Data: the personal data to be shared between the parties under clause 16 of this Agreement. Shared Personal Data shall be confined to the following categories of information relevant to the following categories of data subject:
2.a) the names of current and potential customers; 2.b) their geographical and email addresses, and
2.c) their home and mobile telephone numbers.
Specification: any specification for the Goods that is agreed in writing by Floom and the Merchant.
Studio Page: means the Merchant’s page on the Website where Floom will promote and offer the Goods for sale to Customers.
Studio Page Content: means any content uploaded by the Merchant onto their Studio Page, including any Photographs, or otherwise provided to Floom for the purposes of advertising the Merchant themselves or their Goods.
Term: the duration of the Agreement, as set out in clause 29.1. Terms: these terms and conditions.
Third Party: any third party selected by Floom at its sole discretion to provide Third Party Goods or Third Party Services through the Website to Merchants.
Third Party Fees: means the fees set out in clause 14.3.
Third Party Goods: the goods (or any part of them) set out in a Third Party Order.
Third Party Order: an order for the Third Party Goods or Third Party Services made via the Website or an agreed upon offline order through Floom customer service as detailed in clause 13.
Third Party Services: the services (or any part of them) set out in a Third Party Order. VAT: United Kingdom value added tax.
Website: www.Floom.com, www.FloomX.com or any other website from time to time where Floom shall offer the Merchant’s Goods for sale and allow the Merchant to purchase Third Party Goods or Third Party Services.
1.2. Construction
In these Terms, unless the context requires otherwise, the following rules apply: (a) 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.
(b) A reference to writing or written includes e-mails.
(c) References to indemnify and indemnifying any person against any circumstance include indemnifying and keeping that person harmless from all actions, claims and proceedings from time to time made against that person and all loss or damage and all payments, costs or expenses (including legal fees) made or incurred by that person as a consequence of or which would not have arisen but for that circumstance.
Part One – terms applicable to Merchant in appointing Floom as its agent to market and sell the Goods to Customers.
2. APPOINTMENT OF FLOOM AS EXCLUSIVE AGENT
2.1. The Merchant hereby appoints Floom as its agent to promote and offer the Goods for sale to Customers via the Website on these Terms and Floom hereby accepts the appointment on these Terms.
2.2. The Merchant hereby grants Floom authority to:
(a) promote and offer the Goods for sale to Customers on the Website; (b) accept or reject any Order for Goods placed by Customers, at Floom’s sole discretion;
(c) enter into and conclude the Customer Contract with the Customer on behalf of the Merchant acting as its agent;
(d) collect and process payments on behalf of the Merchant for the Goods ordered by Customers;
(e) if applicable, arrange for delivery of the Goods to Customers on behalf of the Merchant; (f) deduct its Commission from the Retail Price; and
(g) name the Merchant as ‘Merchant of the Week’ on the Website, at Floom’s sole discretion.
2.3. The Merchant shall not, offer the same Goods for sale to any third party via any other
third party eCommerce platform and Floom shall be its exclusive agent for online sales apart from any sales of Goods made by the Merchant through its own website.
2.4. The Merchant shall inform Floom of any planned holidays of staff members
reasonably necessary to implement the partnership during the first month of the partnership before they are live on www.floom.com.
3. ORDER PROCESS
3.1. An Order constitutes an offer by a Customer to purchase the Goods from the Merchant. 3.2. Following receipt of an Order from a Customer, Floom will send:
(a) an email to the Merchant containing details of the Order (including but not limited to the type and quantity of Goods ordered, the delivery postcode, the delivery date and time and any other specific instructions provided by the Customer) (“Order Email”); and
(b) an email to the Customer confirming the Order on behalf of the Merchant (“Order Confirmation”).
3.3. Upon receipt of an Order Email, the Merchant shall:
(a) dispatch the Goods to the Customer on the selected delivery days, in accordance with clause 8; and
(b) ensure the Goods are delivered to the Customer between 10:00am and 17:00pm on the chosen delivery day;
(c) mark each Order ‘on its way’ in their Account within five (5) minutes of dispatch; and (d) mark each Order ‘delivered’ in their Account within fifteen (15) minutes of delivery.
3.4. A legally binding Customer Contract between the Merchant and the Customer shall come into existence upon the issue of an Order Confirmation by Floom.
4. FLOOM’S OBLIGATIONS
4.1. Floom agrees with the Merchant that during the Term it shall:
(a) provide the Merchant with training to enable it to create a Studio Page, upload any Studio Page Content to the Studio Page and update their goods and stock on the Studio Page, and manage the status of their Orders via their Account;
(b) use reasonable endeavours to promote and offer the Merchant’s goods for sale to Customers on the Website;
(c) take payment for the Goods from Customers on behalf of the Merchant and shall remit the Agreed Unit Price (excluding the Consumer Service Fee) to the Merchant in accordance with clause 10;
(d) inform the Merchant of any complaint or after sales enquiry received by Floom concerning the Goods; and
(e) issue refunds on behalf of the Merchant to Customers in accordance with clause 9.
5. STUDIO PAGE CONTENT AND MERCHANT OBLIGATIONS
5.1. The Merchant undertakes, warrants and represents that it shall:
(a) include the following information and content on its Studio Page: its address(es), phone number(s), delivery post codes, a brief background about itself, Photographs of at least three (3) goods, the price and stock availability of each of the goods and its logo (if any);
(b) only include Photographs on its Studio Page that comply with the Photographic Guidelines;
(c) keep all Studio Page Content and Specifications at all times up to date, materially accurate, true and complete and compliant with all Local Regulations;
(d) always have a minimum of three (3) different goods displayed for sale on its Studio Page and in stock and available for purchase;
(e) ensure the goods listed as ‘available’ for purchase on the Website is at all times accurate and any goods that are no longer in stock are immediately listed as such on the Website;
(f) on a request by Floom, remove and replace any goods listed on the Website no more than every sixty (60) days;
(g) be open for trade through Floom at ‘Peak Times’ of the year. These include Valentine’s Day, Mother’s Day, and during reasonable Christmas retail opening hours;
(h) act at all times in its relations with Floom dutifully and in good faith;
(i) supply to Floom, at the Merchant’s own expense, sale samples (where applicable), sales literature and other documentation and information and such other support as Floom may from time to time reasonably require for the purposes of promoting and offering the Merchant’s goods for sale on the Website and to enable it to properly and efficiently discharge its duties under the Terms;
(j) perform its obligations under or in respect of all Customer Contracts in a timely and professional manner;
(k) make its ‘Floom merchant sticker’ visible, either on a shop window, counter, or elsewhere, where it can be seen by all visiting customers;
(l) at all times it have and maintain all the licences, permissions, authorisations, consents and permits that it needs to perform its obligations under the Agreement and any Customer Contract;
(m) comply with any terms of use governing the Website from time to time; and
(n) make its ‘Floom Florist Community Badge’ visible on its Website and link it to its Studio Page or the Website homepage.
5.2. Floom may, without notice and at its sole discretion, remove any Photographs and/or other Studio Page Content from a Merchant’s Studio Page, in particular if they do not comply with the Photographic Guidelines and/or any other instructions provided by Floom to a Merchant from time to time.
5.3. The Merchant may, at any time, request that promotional content is pushed to its Studio Page. Floom may, at its sole discretion, accept or reject such a request and if it accepts the request, subject to the parties ageing in writing any additional terms and conditions and/or additional fees payable in connection with its acceptance.
6. THE GOODS AND PACKAGING
6.1. The Merchant warrants that the Goods:
(a) correspond with their Photograph and description on the Website and any applicable Specification;
(b) are of satisfactory quality and fit for any purpose held out by the Merchant or made known to the Merchant by a Customer or by Floom expressly or by implication, and in this respect Floom relies on the Merchant's skill and judgement;
(c) comply with all applicable statutory and regulatory requirements relating to the labelling, packaging, storage, handling and delivery of the Goods, including all Local Regulations;
(d) shall be packaged in the Approved Packaging when they are delivered to a Customer in accordance with Floom’s written instructions.
(e) shall not include anything other than the Approved Packaging when delivered to a Customer unless written instruction are given by Floom.
6.2. The Merchant warrants that it shall not write anything other than the gift message and the Recipient’s name, address and contact number on the Approved Packaging unless written instructions are given by Floom.
7. AUDIT RIGHTS
7.1. Subject to not less than two (2) Business Days’ notice, Floom may visit any of the Merchant’s retail outlets and/or warehouses to:
(a) inspect the Merchant’s goods; and/or
(b) take such photographs of the Merchant’s goods as it may require for the purpose of promoting the Merchant’s goods on the Website.
7.2. Any such visit shall be during normal business hours and the Merchant shall procure that Floom is given access to such premises for these purposes.
7.3. If following such inspection Floom considers that any of the Merchant’s goods do not conform or are unlikely to comply with the Merchant's obligations in this Agreement, Floom shall inform the Merchant and the Merchant shall immediately take such remedial action as is necessary to ensure compliance.
7.4. Notwithstanding any such inspection, the Merchant shall remain fully responsible for the Goods and any such inspection shall not reduce or otherwise affect the Merchant's obligations under the Terms, and Floom shall have the right to conduct further inspections after the Merchant has carried out its remedial actions.
7.5. In addition to its rights in clause 7.1, the Merchant shall keep separate accounts and records giving correct and adequate details of all transactions conducted through the Website relating to its Goods and separate files of vouchers, invoices and receipts relevant to the Goods purchased through the Website and any other documents, records or information to enable Floom to verify the Merchants compliance with its obligations under this Agreement. On a written request from Floom, promptly provide copies of such records to Floom to verify the Merchant’s compliance with its obligations under this Agreement.
8. DELIVERY OF CUSTOMER GOODS
8.1. The Merchant shall deliver the Goods in accordance with the terms of the Order Confirmation and the terms of any Customer Contract. If there is any inconsistency the terms of the Order Confirmation shall take precedence.
8.2. The Merchant shall responsibly track deliveries of Goods by using the ‘On the Way’ and ‘Delivered’ Order status buttons in it’s Account.
8.3. The Merchant is responsible for the delivery of the Goods to the Recipient. Floom
shall have no liability in relation to any third party delivery provider engaged by the Merchant to deliver the Goods. Risk in the Goods shall remain with the Merchant until it passes to the Customer in accordance with the terms of the Customer Contract, or if not specified in the Customer Contract until the Goods are delivered to the Customer.
8.4. If the Goods are unable to be delivered to the Recipient then the Merchant shall ensure that:
(a) a calling card is put through the Recipients door to let them know where the Goods have been left; and
(b) it shall attempt to deliver any Goods a second time upon the Customer’s request and on a day requested by the Customer or the Recipient.
8.5. The Merchant shall notify Floom immediately in the event that: (a) its stock of the Goods becomes unavailable for any reason;
8.5.1. Notification Requirement: The Merchant is required to promptly communicate the unavailability of their stock to Floom as specified in this section.
8.5.2. Failure to Notify: In the event that the Merchant fails to notify Floom of the unavailability of their stock as required in section 8.5, a flat fee of £10 (GBP) will be charged to the Merchant for each occurrence.
8.5.3. Billing: The £10 notification failure fee will be deducted from any payments owed by Floom to the Merchant under or in connection with this Agreement.
8.6. If the Merchant fails to deliver Goods to a Recipient within the time stated in the Order Confirmation then Floom shall either:
(a) arrange for alternative Goods similar to the Goods ordered by the Customer to be delivered to the Recipient and in such circumstances, the Merchant shall be liable to pay:
(i) any difference between the Retail Price of the unfulfilled Order and the Retail Price of the replacement Goods;
(ii) any reasonable compensation offered to the Customer for any delay in the delivery and change in Goods; and
(iii) a flat fee of ten pounds (£10) to reflect the additional administration carried out by Floom as its agent; or
(b) refund the Customer in full for the Retail Price and any Delivery Costs and in such circumstances, Floom shall refund to the Merchant the Retail Price minus:
(i) the Commission;
(ii) any Payment Processing Fees that are charged;
(iii) a flat fee of £10 to reflect the additional administration carried out by Floom as its agent;
(iv) any reasonable compensation offered to the Customer for the failure to deliver the Goods.
9. REFUNDS TO CUSTOMERS
9.1. The parties agree and acknowledge that:
(a) the Merchant hereby also appoints Floom to act as its agent in respect of all after sale services, including but not limited to, dealing with any Customer’s request for a refund; and
(b) in respect of any Goods sold, Floom shall determine whether a refund shall be payable in accordance with the terms of the Customer Contract. If there is any ambiguity as to whether a refund is due and payable to the Customer then Floom shall have absolute authority to determine this on behalf of the Merchant.
9.2. Subject to Clause 8.6, if a refund is due to a Customer:
(a) Floom shall liaise directly with the Customer to arrange, where applicable, for the Goods to be returned to the Merchant;
(b) upon receipt of the returned Goods (if applicable), the Merchant shall notify Floom that the Goods have been returned;
(c) Floom shall be responsible for paying the refunded monies to the Customer; and
(d) the Merchant shall not issue any refund to the Customer directly.
10. FEES PAYABLE TO FLOOM BY THE MERCHANT
10.1. The following fees shall be paid by the Merchant to Floom:
(a) a subscription fee as outlined by the subscription type on FloomX.
(b) the Commission on each Order placed on the Website or the Merchant Website hosted by Floom;
(c) any Payment Processing Fees applicable to each Order; and
(d) if applicable any Delivery Costs if this is arranged by Floom acting as its agent.
10.2. Floom shall issue an invoice to a Customer on behalf of a Merchant upon receipt of an Order Confirmation.
11. PRICE PAYABLE TO THE MERCHANT BY FLOOM
11.1 Subject to clause 11.9, Floom shall pay to the Merchant:
(a) the Agreed Unit Price in respect of any Goods that are sold and where no refund is requested in accordance with this clause 11; and
(b) the relevant Delivery Cost in respect of each of the Goods sold to Customers.
(the “Price”). No extra charges shall be payable by Floom unless agreed in writing and signed by Floom.
11.2 The Agreed Unit Price of the Goods is calculated based on the Retail Price set by the Merchant, less the Commission and Payment Processing Fees. The Agreed Unit Price is exclusive of the Consumer Service Fee, which is retained by Floom. The Price is inclusive of VAT but exclusive of Delivery Costs.
11.3. The Price shall be paid to the Merchant by Floom no more than thirty (30) days after the date of delivery of the Goods to the location agreed in the applicable Order Confirmation and provided no refund has been made to the Customer in accordance with clause 9.
11.4. The Merchant shall be responsible for the costs of packaging and insurance of the Goods to the delivery location set out in the Order Confirmation which shall be included in the Agreed Unit Price.
11.5. Payment to the Merchant shall be made in sterling (or any other currency agreed between the parties in writing from time to time) to the bank account notified to Floom in writing by the Merchant.
11.6. The Merchant acknowledges and agrees that Floom shall be entitled to deduct its Commission and the Payment Processing Fees from the Retail Price actually charged to Customers for Goods through the Website.
11.7. The Merchant shall be responsible for paying any UK customs duty and excise on the import of the Goods into the UK.
11.8. The Merchant acknowledges and agrees that if Floom incurs any Payment Processing Fees in connection with a transaction for which Floom has already remitted
payment to Merchant of the Price, Floom may offset the amount of those Payment Processing Fees against future payments due to the Merchant. If no further payments are to be made to Merchant, Merchant shall pay Floom those Payment Processing Fees within thirty (30) days of the date of Floom’s invoice to Merchant for those Payment Processing Fees.
11.9. Floom shall be entitled to set off or deduct any monies owed by the Merchant to Floom in respect of any Orders, Third Party Orders, Delivery Costs, delivery costs in relation to the Third Party Goods or other costs in connection with this Agreement from any monies owned by Floom to the Merchant under or in connection with this Agreement.
Part Two – terms applicable to the Merchant in purchasing Third Party Goods and Third Party Services through its Account and utilising FloomX premium features
12. PREMIUM MEMBERSHIP
The Merchant must subscribe for Premium Membership (as defined in clause 14.2) in order to access and utilise FloomX premium features, and use the Website to purchase Third Party Goods or Third Party Services, subject to payment of the Monthly Subscription Fee.
13. ORDER PROCESS
13.1. The Merchant can use the Website to purchase Third Party Goods and Third Party Services through its Account.
13.2. The advertisement on the Website by the Third Party of any: (a) Third Party Goods as available and in stock; or
(b) Third Party Services as available, constitutes an offer to sell the Third Party Goods or Third Party Services.
13.3. The Merchant can place Third Party Orders to purchase the Third Party Goods or Third Party Services. The Third Party Order placed by the Merchant will confirm:
(a) details of the Third Party Goods or Third Party Services being purchased;
(b) the address to be used for delivery of the Third Party Goods or for the performance of the Third Party Services; and
(c) a selected delivery or performance date that is available.
14. FEES PAYABLE TO FLOOM BY THE MERCHANT
14.1. The Merchant must register card details on its Account to purchase Third Party Goods or Third Party Services from Floom.
14.2. The Merchant shall pay the Monthly Subscription Fee in order to use the Website to purchase Third Party Goods or Third Party Services and access FloomX Premium features(“Premium Membership”). The Merchant shall pay to Floom the first (3) months’ Monthly Subscription Fee when the Merchant subscribes for Premium Membership via its Account. After the initial three (3) month period of the Merchant’s Premium Membership the Monthly Subscription Fee shall be debited in advance from the card registered to the applicable Account on a monthly basis.
14.3. In addition to the Monthly Subscription Fee, the Merchant shall pay the following fees for the Third Party Goods or Third Party Services purchased from Floom:
(a) the price of the Third Party Goods or Third Party Services as listed on the Website; and
(b) the delivery costs for the Third Party Goods which will be a variable fee listed on the Website next to the Third Party Goods, (the “Third Party Fees”).
(c) The agreed commission on sales made through the Merchant Website
14.4. The Third Party Fees shall be debited from the card registered to the applicable Account at the point that the Merchant places a Third Party Order.
14.5. If the Third Party Fees are unable to be debited from the card registered to the Account for any reason then the Merchant shall be liable for the full cost of the Third Party Fees as a debt to Floom.
14.6. The Merchant shall indemnify Floom for any losses Floom incurs, including all reasonable administrative fees, as a result of any card that is registered with an Account not being valid or callable of being debited with any Third Party Fees.
15. PRICE PAYABLE TO THE MERCHANT BY FLOOM
15.1. Subject to clause 15.6, Floom shall pay to the Merchant:
(a) the Agreed Unit Price in respect of any Goods and services that are sold through the Merchant Website
No extra charges shall be payable by Floom unless agreed in writing and signed by Floom. 15.2. The Agreed Unit Price of the Goods is inclusive of amounts in respect of VAT but
exclusive of the Delivery Cost.
15.3. The Price shall be paid to the Merchant by Floom no more than seven(7) working days after the date the order is placed on the Merchant Website
15.4. Payment to the Merchant shall be made in sterling (or any other currency agreed between the parties in writing from time to time).
15.5. The Merchant acknowledges and agrees that Floom shall be entitled to deduct its Commission and the Payment Processing Fees from the Retail Price actually charged to Customers for Goods through the Merchant Website.
15.6. Floom shall be entitled to set off or deduct any monies owed by the Merchant to Floom in respect of any Orders, Third Party Orders, Delivery Costs, delivery costs in relation to the Third Party Goods or other costs in connection with this Agreement from any monies owned by Floom to the Merchant under or in connection with this Agreement.
16. THE THIRD PARTY GOODS
16.1. If any Third Party Goods are out of stock:
(a) these shall be exchanged for similar Third Party Goods in stock and Floom shall notify the Merchant of such exchange; or
(b) Floom shall refund the Third Party Fees of any of the Third Party Goods that are not in stock.
16.2. Any similar Third Party Goods supplied in accordance with clause 15.1(a) shall be considered to conform in all material respects to the Third Party Order for the purposes of clause 15.3(a).
16.3. Floom warrants that the Third Party Goods shall:
(a) conform in all material respects to the Third Party Order; and (b) be free from material defects.
16.4. Floom shall, at its option, replace any of the Third Party Goods or refund the Third Party Fees of any of the Third Party Goods that do not comply with clause 15.3, provided that the Merchant:
(a) notifies Floom of the defect or non-conformity within twenty-four (24) hours of the Third Party Goods being delivered;
(b) submits to Floom a Complaint Form which provides Floom with sufficient information as to the nature and extent of the defect or non-conformity; and
(c) gives Floom a reasonable opportunity to examine the defective Third Party Goods and such replacement or refund shall be the Merchant’s sole remedy in respect of a breach of clause 15.3.
16.5. The provisions of these Terms, including the warranties set out in clause 15.3, shall apply to any of the Third Party Goods that are replaced with effect from the date of delivery of the replaced Third Party Goods.
16.6. Floom shall not be liable for any failure of the Third Party Goods to comply with clause 15.3:
(a) where such failure arises by reason of willful damage or negligence by the Merchant;
(b) to the extent caused by the Merchant’s failure to comply with the Third Party’s instructions in relation to the Third Party Goods, including any instructions on care and storage; or
(c) where the Merchant uses any of the Third Party Goods after notifying Floom that they do not comply with clause 15.3.
16.7. Except as set out in this clause 15:
(a) Floom gives no warranties and makes no representations in relation to the Third Party Goods; and
(b) shall have no liability for their failure to comply with the warranties in clause 15.3; and all warranties and conditions (including the conditions implied by sections 13 to 15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
17. DELIVERY OF THIRD PARTY GOODS
17.1. The Third Party Goods shall be deemed delivered on arrival of the Third Party Goods at the address designated by the Merchant in the Third Party Order for delivery.
17.2. Time of delivery is not of the essence. Floom shall use its reasonable endeavours to ensure that the delivery is completed in accordance with any agreed delivery dates but such dates are approximate only.
17.3. Floom shall not be liable for any delay in or failure of delivery caused by:
(a) the Merchant’s failure to
(i) accept delivery of the Third Party Goods; or
(ii) provide Floom with adequate instructions for delivery; or
(b) a Force Majeure Event.
17.4. If the Merchant fails to comply with clause 16.316.3(a)(i) or 16.3(a)(ii): (a) the Merchant shall:
(i) promptly select via its Account an available alternative date for re-delivery of the Third Party Goods; and
(ii) pay the delivery costs incurred in relation to the failed delivery of such Third Party Goods; and
(b) Floom and/or the Third Party shall be entitled to re-sell such Third Party Goods to an alternative purchaser. If the Third Party Goods are re-sold Floom shall refund to the Merchant the price of the Third Party Goods (not including any delivery costs), subject to deductions to reimburse Floom for any losses incurred as a result of the failed delivery including reasonable administration fees.
18. RISK AND TITLE IN THE THIRD PARTY GOODS
Risk in and Title to the Third Party Goods shall pass to the Merchant on delivery.
19. THE THIRD PARTY SERVICES
19.1. Floom warrants that the Third Party Services shall conform in all material respects to the Third Party Order.
19.2. Floom shall use reasonable endeavours to ensure that Third Party Services shall (a) be free from material defects; and
(b) supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13.
19.3. Floom shall, at its option, remedy, re-perform or refund the Third Party Services that do not comply with clause 18.1, provided that the Merchant:
(a) notifies Floom no later than twenty-four (24) hours from performance in the case of a non-conformity discoverable by a physical inspection, or within a reasonable period of time from performance in the case of non-conformities which are not discoverable by physical inspection;
(b) provides Floom with sufficient information as to the nature and extent of the non conformity; and
(c) gives Floom a reasonable opportunity to examine the claim of the non conforming Third Party Services, and such remedy, re-performance or refund shall be the Merchant’s sole remedy in respect of a breach of clause 18.1.
19.4. The provisions of these Terms, including the warranties set out in clause 18.1, shall apply to any Third Party Services that are remedied or re-performed with effect from performance of the remedied or re-performed Third Party Services.
19.5. Except as set out in this clause 18:
(a) Floom gives no warranties and makes no representations in relation to the Third Party Services; and
(b) shall have no liability for their failure to comply with the warranty in clause 18.1, and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
20. PERFORMANCE OF THE THIRD PARTY SERVICES
20.1. The Third Party Services shall be deemed performed on completion of the performance of the Third Party Services as specified in the Third Party Order.
20.2. The Third Party may perform the Third Party Services in instalments. Any delay in performance or defect in an installment shall not entitle the Merchant to cancel any other installment.
20.3. Time of performance of the Third Party Services is not of the essence. Floom shall use its reasonable endeavors to ensure that performance is completed in accordance with any agreed performance dates but any such dates are approximate only.
20.4. Floom shall not be liable for any delay in or failure of performance caused by:
(a) the Merchant’s failure to:
(i) make the location selected for performance available;
(ii) prepare the location selected for performance as required for performance of the Third Party Services; or
(iii) provide adequate instructions for performance; or
(b) a Force Majeure Event; and Floom reserves the right to recover from the Merchant any charges incurred by Floom as a result of the Merchant’s failure to comply with clause 19.4(a)(i) to (a)(iii) including any delivery or return costs charged by Third Party couriers.
Part Three – terms that apply to any goods or services sold or purchased under or in connection with this Agreement
21. LICENCE
Subject to payment of all associated fees, Floom hereby grants to the Merchant on and subject to compliance with the terms and conditions of this Agreement a non-exclusive, non transferable, revocable licence to use the Website, including setting up and using its Account, Studio Page and Merchant Website solely for the Merchant's business purposes for the Term.
22. AVAILABILITY
22.1. Floom shall use commercially reasonable endeavours to make the Website available for the provision and receipt of Goods, Third Party Goods and Third Party Services under this Agreement.
22.2. The Merchant acknowledges that the Website may be unavailable if maintenance, upgrades, security updates or fixes are required to be undertaken on the Website.
22.3. Floom shall use reasonable endeavours to give the Merchant prior notification of any planned unavailability of the Website as a result of maintenance or otherwise.
23. ACCEPTABLE USE OF WEBSITE
23.1 The Merchant shall not:
(a) store, distribute or transmit any virus or any material through the Website that is racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability, or other illegal activities;
(b) attempt to copy, duplicate, modify, create derivative works of or distribute all or any portion of the Website except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of the Website, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties;
(d) use the Website:
(i) for any unlawful purpose;
(ii) in a way that could damage, disable, overburden, impair or compromise the Website, or the ordering of Goods, Third Party Goods or Third Party Services;
(iii) in a way that could cause damage to any third party; or
(iv) for any purpose which is offensive, indecent, obscene, menacing or defamatory;
(e) collect or harvest any information or data from the Website, provision of Goods or receipt of Third Party Goods or Third Party Services;
(f) access all or any part of the Website in order to build a product or service which competes with the Website or the services provided by Floom via the Website; and
(g) use the Website to provide services to third parties or allow third parties to purchase Third Party Goods or Third Party Services via the Website through the Merchant’s Account.
23.2 The Merchant shall use reasonable efforts to prevent any unauthorized access to, or use of, the Website or its Account and notify Floom promptly of any such unauthorized access or use.
24. INTELLECTUAL PROPERTY RIGHTS
24.1. The Merchant acknowledges that all Photographs, content, materials, Specifications, software, logos or trademarks and data supplied by Floom to the Merchant in accordance with this Agreement or uploaded to the Website (“Floom Materials”) and all Intellectual Property Rights in Floom Materials are and shall remain the exclusive property of Floom. The Merchant shall not copy, download or store Floom Materials other than in accordance with Floom's written instructions or in accordance with the terms of this Agreement.
24.2. Nothing in these Terms shall confer on the Merchant any interest of whatever
description or nature in the Floom Materials and/or any other Intellectual Property Rights owned or used by Floom and to the extent that, notwithstanding the foregoing, any such interest or rights are conferred, the Merchant hereby unconditionally and irrevocably assigns such interest and/or rights to Floom.
24.3. Floom acknowledges that al Photographs and materials provided by the Merchant to Floom or uploaded to the Website by the Merchant (“Merchant Materials”) and all Intellectual Property Rights in Merchant Materials are and shall remain the exclusive property of the Merchant.
24.4. The Merchant grants Floom a royalty-free, non-exclusive, worldwide, irrevocable right and licence to use, reproduce, perform, display and distribute on any media including without limitation the Website and in advertising and other communications any trademark, images, Merchant Materials, Specifications, and data source or business identifier or business property made available by a Merchant to Floom during the term of this Agreement and for a reasonable period after termination or expiry of the Agreement to enable Floom to remove or cease publication of any such content.
25. MERCHANT INDEMNITY
25.1. The Merchant shall indemnify Floom against any liabilities which Floom may incur as a result of:
(a) acting within the scope of its authority under the Terms as agent for the Merchant;
(b) any breach by the Merchant of the Customer Contract;
(c) any claim for actual or alleged infringement of a third party's Intellectual Property Rights or misrepresentation arising out of, or in connection with, the supply or use of the Goods or the Studio Page Content;
(d) any claim by a third party arising out of, or in connection with, the supply of the Goods; and
(e) any claim by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods.
References to the Merchant in this clause 24.1 shall include its employees, agents and subcontractors.
25.2. This clause 23 shall survive termination of the Agreement.
25.3. Floom’s rights and remedies under these Terms are in addition to its rights and remedies implied by statute and common law.
26. INSURANCE
26.1. The Merchant shall maintain product liability insurance and public liability insurance for the duration of this Agreement of not less than ten per cent (10%) of the Merchant’s turnover during the last twelve (12) month period during the Term with a reputable insurer and shall provide a copy of the insurance policy and proof of payment of the current premium to Floom on request by the latter.
27. CONFIDENTIAL INFORMATION
27.1. Both parties agree that it may use the Confidential Information only in the exercise of its rights and performance of its obligations under this Agreement and that during the Term and thereafter it shall not use or disclose the Confidential Information except in accordance with this clause 20.
27.2. Subject to clause 20, a party may only disclose the Confidential Information of the other party:
(a) to those of its employees, officers, professional advisers or representatives who need to know the Confidential Information in order to exercise its rights and perform its obligations under this Agreement, provided that it shall ensure that each of its employees, officers, professional advisers or representatives to whom such Confidential Information is disclosed is aware of its confidential nature and complies with this clause 20 as if it were a party; and
(b) to the extent required by law, to any court, any governmental, regulatory or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction.
27.3. To the extent any Confidential Information is Shared Personal Data, such Confidential
Information may be disclosed or used only to the extent such disclosure or use does not conflict with clause 28.
28. DATA PROTECTION
28.1. This clause sets out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
28.2. Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within thirty (30) days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.
28.3. Each party shall:
(a) ensure that it has all necessary notices and consents in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) give full information to any data subject whose personal data may be processed under this Agreement of the nature such processing. This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;
(c) process the Shared Personal Data only for the Agreed Purposes;
(d) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(e) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;
(f) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
(g) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
(i) complies with the provisions of Articles 26 of the GDPR (in the event the third party is a joint controller); and
(ii) ensures that (i) the transfer is to a country approved by the European
Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
28.4. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
(a) consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party about the receipt of any data subject access request;
(c) provide the other party with reasonable assistance in complying with any data subject access request;
(d) not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
(e) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this Agreement unless required by law to store the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
(i) maintain complete and accurate records and information to demonstrate its compliance with this clause 27; and
(j) provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.
28.5. Each party shall indemnify the other against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity
basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.
29. ALTERATIONS TO THE TERMS
29.1. Floom may update these Terms at any point, by providing not less than fourteen (14) days prior written notice to the Merchant. Such notification may be through the Website, the Account or an email notification.
29.2. Subject to clause 28.4, the Merchant may terminate the Agreement within fourteen (14) days of the date of such notification if it does not accept the change to these Terms by giving written notice to terminate to Floom.
29.3. If no termination notice is received in accordance with clause 28.2 then any such changes to these Terms shall be deemed accepted.
29.4. Any Orders confirmed prior to or after notice to terminate has been given by the Merchant shall be honoured and fulfilled by the Merchant in accordance with the Customer Contract and this Agreement.
30. TERM AND TERMINATION
30.1. The Agreement shall commence on the date on which the Account is activated by the Merchant by clicking the link in the email sent by Floom and accepting these Terms. The Agreement shall continue until terminated by either the Merchant or Floom upon written notice to the other (“Term”).
30.2. Either party may terminate this Agreement at any time by giving notice in writing to the other if:
(a) the other party commits a material breach of this Agreement and such breach is not remediable;
(b) the other party commits a material breach of this Agreement which is not remediated within ten (10) days of receiving written notice of such breach, or
(c) the other party is subject to an Insolvency Event.
30.3. Floom may remove a Merchant’s Studio Page and terminate the Account and this Agreement at any time without notice.
30.4. The Merchant may terminate this Agreement at any time by giving not less than three (3) months’ written notice to Floom.
30.5. On termination of this Agreement by either party:
(a) all rights and licences granted to Floom under this Agreement shall cease and Floom shall deactivate the Account and remove the Merchant’s Studio Page within seven (7) Business Days of acknowledging receipt of the Merchant’s termination request;
(b) the Merchant shall immediately destroy or return to Floom all Floom Materials, Floom Confidential Information and any other documents or information that have been supplied by or generated by Floom in connection with this Agreement or otherwise. If any Floom Materials are stored in electronic form, the Merchant shall permanently erase all such Floom Materials from its computer and communications systems and devices used by it; and
(c) the Merchant shall fulfil any Orders placed prior to the date of termination and otherwise comply with the terms of this Agreement as to those Orders, including paying Floom Commissions and Payment Processing Fees in connection with those Orders.
30.6. Termination of the Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Terms shall continue in full force and effect.
31. LIMITATION OF LIABILITY
31.1. Notwithstanding any other provision of this Agreement, the liability of the parties shall not be excluded or limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other losses which cannot be excluded or limited by applicable law.
31.2. Subject to clause 30.1, 15.4 and 18 the total liability of Floom under or in connection with this Agreement and regardless of whether such liability arises in tort (including negligence), contract, breach of statutory duty or in any other way (including under any indemnity) shall not exceed the Commission received in respect of the applicable Order that is the subject of any claim.
31.3. Subject to clause 28.1, if the Merchant has entered into a separate contractual agreement with a Third Party which relates to the provision of Third Party Goods or the performance of Third Party Services, Floom shall not be liable for the performance or non
performance of such Third Party.
31.4. Subject to clause 30.1, Floom shall not be liable for consequential, indirect or special losses.
31.5. Subject to clause 30.1, Floom shall not be liable for any of the following (whether direct or indirect):
(a) loss of profit;
(b) loss or corruption of data;
(c) loss of use;
(d) loss of production;
(e) loss of contract;
(f) loss of opportunity;
(g) loss of savings, discount or rebate (whether actual or anticipated); or (h) harm to reputation or loss of goodwill.
32. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Merchant shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Agreement (a Force Majeure Event). If any Force Majeure Event prevents the Merchant from carrying out its obligations under the Agreement for a continuous period of more than fourteen (14) days, Floom may terminate the Agreement immediately by giving written notice to the Merchant.
33. GENERAL
33.1. Assignment and subcontracting
(a) The Merchant may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Agreement without Floom’s prior written consent.
(b) Floom may assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this
Agreement, provided that it gives prior written notice of such dealing to the Merchant.
33.2. Entire Agreement
(a) The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
33.3. Notices
(a) Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 32.3(a); if sent by pre-paid first class post or recorded delivery, at 10.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one (1) Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
33.4. Severance
(a) If any court or competent authority finds that any provision of these Terms (or part of any provision) are invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Terms shall not be affected.
(b) If any invalid, unenforceable or illegal provision of these Terms would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
33.5. Waiver
A waiver of any right or remedy under the Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
33.6. Third party rights
Except as expressly provided elsewhere in this Agreement, a person who is not a party to this Agreement shall not have any rights under the Customer Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
33.7. Variation
Except as set out in this Agreement, any variation to the Terms, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Floom.
33.8. Governing law and jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.