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: The processing, receipt and delivery of Orders and Third Party Orders and the fulfillment of obligations under this Agreement.
Agreed Unit Price: The agreed unit price for the Goods, being the Retail Price less the Commission.
Consumer Service Fee: A fixed fee of £4.00 (or local currency equivalent, e.g. $5.00 in the US) added by Floom to the Retail Price and included in the total price shown 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 between Floom and the Merchant upon acceptance of these Terms.
Applicable Consumer Laws: Includes, without limitation, the Consumer Rights Act 2015, Data Protection Legislation, Consumer Customer Contracts Regulations 2013, Electronic Commerce (EC Directive) Regulations 2002, Consumer Rights (Payment Surcharges) Regulations 2012 and Consumer Protection from Unfair Trading Regulations 2008.
Approved Packaging: Floom's "Sender's note" card and envelope, as well as promotional packaging provided by Floom.
Business Day: Any day (excluding public holidays) when banks in London are open.
Commission:
* 25% of the Retail Price for website sales (unless otherwise agreed).
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 know-how, 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 placing an Order via the Website or 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: Bloomnation LTD, incorporated in England and Wales with company number 16437812, whose registered office is at Garden Flat, 12 Fitzjohn's Avenue London Garden Flat, Fitzjohns Avenue, London, England, NW3 5NA.
Force Majeure Event: As defined in clause 23 of these Terms.
FloomX premium features: Features and services offered by floom on the FloomX platform to customers with a premium membership
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.
Monthly Subscription Fee: Means the monthly fee agreed between the parties, billed to the Merchant via Stripe 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: Any amounts charged to Floom by a payment processor as a result of or in connection with a sale of Goods.
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 19 of this Agreement. Shared Personal Data shall be limited to the following categories of information relating to the relevant data subjects:
(a) the names of current and potential customers;
(b) their geographical and email addresses; and
(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: The Merchant's page on the Website where Floom promotes and offers the Goods for sale to Customers.
Studio Page Content: Any content uploaded by the Merchant to their Studio Page, including Photographs, or otherwise provided to Floom for the purpose of advertising the Merchant or their Goods.
Term: The duration of the Agreement, as set out in Clause 21.1.
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: 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 Third Party Goods or Third Party Services made via the Website or an agreed 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 offers the Merchant's Goods for sale and allows 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 meaning of the words preceding those terms.
(b) A reference to writing or written includes emails.
(c) References to indemnify and indemnifying any person against any circumstance include indemnifying and holding that person harmless from all actions, claims, and proceedings made against them, and from all losses, damages, and payments, costs, or expenses (including legal fees) incurred as a consequence of, or which would not have arisen but for, that circumstance.
Part One – Terms Applicable to the Merchant
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 in accordance with these Terms, and Floom hereby accepts such appointment.
2.2 The Merchant grants Floom the 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 Goods ordered by Customers;
(e) where applicable, arrange delivery of the Goods to Customers on behalf of the Merchant;
(f) deduct its Commission from the Retail Price; and
(g) feature 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 via any other third-party eCommerce platform. Floom shall act as the Merchant's exclusive agent for online sales, except for sales made through the Merchant's own website.
2.4 The Merchant shall inform Floom, during the first month of the partnership and prior to going live on www.floom.com, of any planned staff holidays that may reasonably affect the implementation of the partnership.
2.5 The Merchant must create and maintain a Stripe Connected Account and agrees to be bound by the applicable terms for such Stripe Connected Account. Stripe will provide payment processing, verification and payout services in connection with the Agreement.
2.6 The Merchant must complete all identity, business and other verification requirements requested by Stripe or Floom in connection with the Stripe Connected Account. Failure to do so may delay, suspend or prevent payouts or other services under this Agreement.
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) (the "Order Email"); and
(b) an email to the Customer confirming the Order on behalf of the Merchant (the "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;
(b) ensure the Goods are delivered to the Customer between 10:00 a.m. and 5:00 p.m. on the chosen delivery day;
(c) mark each Order as "on its way" in their Account within five (5) minutes of dispatch; and
(d) mark each Order as "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 them to create a Studio Page, upload any Studio Page Content, 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 arrange transfer of the Merchant's share via the Merchant's Stripe Connected Account in accordance with clause 11;
(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. Merchant's Undertakings, Warranties, and Representations
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 good, and its logo (if any);
(b) only include photographs on its Studio Page that comply with the Photographic Guidelines; and
(c) keep all Studio Page Content and Specifications at all times up to date, materially accurate, true, complete, and compliant with all Local Regulations.
(d) always have a minimum of three (3) different goods displayed for sale on its Studio Page, in stock, and available for purchase;
(e) ensure that the goods listed as "available" for purchase on the Website are at all times accurate, and immediately update the Website to reflect any goods that are no longer in stock;
(f) upon request by Floom, remove and replace any goods listed on the Website no more than once every sixty (60) days;
(g) be open for trade through Floom during 'Peak Times' of the year, including Valentine's Day, Mother's Day, and reasonable Christmas retail opening hours;
(h) act at all times in its dealings with Floom dutifully and in good faith;
(i) supply to Floom, at the Merchant's own expense, sale samples (where applicable), sales literature, other documentation, information, and such support as Floom may reasonably require from time to time for the purposes of promoting and offering the Merchant's goods for sale on the Website, and to enable Floom to properly and efficiently discharge its duties under these Terms;
(j) perform its obligations under all Customer Contracts in a timely and professional manner;
(k) display its "Floom Merchant Sticker" visibly, either on a shop window, counter, or elsewhere, where it can be seen by all visiting customers;
(l) at all times have and maintain all licences, permissions, authorisations, consents, and permits necessary to perform its obligations under the Agreement and any Customer Contract;
(m) comply with any terms of use governing the Website, as updated from time to time; and
(n) display its "Floom Florist Community Badge" 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, particularly if they do not comply with the Photographic Guidelines 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 be added to its Studio Page. Floom may, at its sole discretion, accept or reject such a request. If Floom accepts the request, it shall be subject to the parties agreeing in writing on any additional terms and conditions and/or additional fees payable in connection with such acceptance.
6. THE GOODS AND PACKAGING
6.1. The Merchant warrants that the Goods:
(a) correspond with their photographs 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 delivered to a Customer, in accordance with Floom's written instructions; and
(e) shall not include anything other than the Approved Packaging when delivered to a Customer, unless written instructions are given by Floom.
6.2. The Merchant warrants that it shall not write anything on the Approved Packaging other than the gift message and the Recipient's name, address, and contact number, unless written instructions are given by Floom.
7. AUDIT RIGHTS
7.1. Subject to providing 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 photographs of the Merchant's goods as required 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 ensure that Floom is given access to the 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 under this Agreement, Floom shall inform the Merchant, and the Merchant shall immediately take any remedial action necessary to ensure compliance.
7.4. Notwithstanding any such inspection, the Merchant shall remain fully responsible for the Goods. Any inspection shall not reduce or otherwise affect the Merchant's obligations under these 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 under clause 7.1, the Merchant shall maintain separate accounts and records that provide correct and adequate details of all transactions conducted through the Website relating to its Goods. The Merchant shall also maintain separate files of vouchers, invoices, receipts, and any other documents, records, or information relevant to Goods purchased through the Website. Upon written request from Floom, the Merchant shall promptly provide copies of such records to Floom to verify 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 any applicable Customer Contract. In the event of 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 its 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, the Merchant shall ensure that:
(a) a calling card is left at the Recipient's door to inform them where the Goods have been left; and
(b) the Merchant attempts to deliver any undelivered 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 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 its 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 its stock as required under section 8.5, a flat fee of ten pounds (£10) 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, Floom shall either:
(a) arrange for alternative Goods, similar to the Goods ordered by the Customer, to be delivered to the Recipient. 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 delivery or 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. In such circumstances, Floom shall refund to the Merchant the Retail Price minus:
(i) the Commission;
(ii) a flat fee of ten pounds (£10) to reflect the additional administration carried out by Floom as its agent; and
(iii) 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; and
(c) the Merchant authorises Floom and Stripe to reverse, claw back or adjust transfers to the Merchant via the Stripe Connected Account in connection with refunds, part-refunds, chargebacks, payment disputes or similar payment reversals relating to Orders.
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) refunds shall be processed via Stripe and may result in the reversal of, or adjustment to, transfers to the Merchant via the Stripe Connected Account; and Floom may also, through Stripe Connect, initiate debits, reversals, adjustments or recoveries from the Merchant's Stripe Connected Account (or any payment method linked to it, where permitted by Stripe) in respect of any penalty fees, one-off charges, refunds, chargebacks, customer disputes, failed delivery charges, compensation, overpayments, or any other sums properly due by the Merchant to Floom under this Agreement.
(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; and
(c) if applicable, any Delivery Costs where delivery 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 11.7, Floom shall arrange transfer to the Merchant via the Merchant's Stripe Connected Account of:
(a) the Agreed Unit Price in respect of any Goods that are sold and for which 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.
(Collectively, the "Price"). No additional 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. 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. Transfers of the Price to the Merchant shall be made through the Merchant's Stripe Connected Account in accordance with the applicable Stripe payout schedule and subject to any refund, chargeback, payment dispute, reserve, hold, delay, verification requirement or other deduction or adjustment applied by Stripe or permitted under this Agreement.
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. These costs shall be included in the Agreed Unit Price.
11.5. Any bank account details for payout purposes shall be provided by the Merchant directly to Stripe through the Stripe Connected Account or otherwise through the Stripe payout set-up process.
11.6. The Merchant acknowledges and agrees that Floom shall be entitled to deduct its Commission from the Retail Price actually charged to Customers for Goods sold 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. 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 Third Party Goods, or other costs in connection with this Agreement from any monies otherwise due to the Merchant under or in connection with this Agreement, including by way of adjustment to transfers via the Stripe Connected Account.
Part Two – Terms That Apply to Any Goods or Services Sold or Purchased Under or in Connection with this Agreement
12. LICENCE
Subject to payment of all associated fees, Floom hereby grants 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, solely for the Merchant's business purposes during the Term.
13. AVAILABILITY
13.1. 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.
13.2. The Merchant acknowledges that the Website may be unavailable if maintenance, upgrades, security updates, or fixes are required.
13.3. Floom shall use reasonable endeavours to give the Merchant prior notice of any planned unavailability of the Website due to maintenance or otherwise.
14. ACCEPTABLE USE OF WEBSITE
14.1. 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, colour, 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 permitted by this Agreement or by any applicable law that cannot be excluded 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 that cannot be excluded 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, the provision of Goods, or the 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 that competes with the Website or the services provided by Floom via the Website; or
(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.
14.2. The Merchant shall use reasonable efforts to prevent any unauthorized access to, or use of, the Website or its Account and shall promptly notify Floom of any such unauthorized access or use.
15. INTELLECTUAL PROPERTY RIGHTS
15.1. 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 except in accordance with Floom's written instructions or the terms of this Agreement.
15.2. 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. 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.
15.3. Floom acknowledges that all 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.
15.4. 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 trademarks, images, Merchant Materials, Specifications, data sources, business identifiers, or other business property supplied or uploaded by the Merchant, 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.
16. MERCHANT INDEMNITY
16.1. 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 16.1 shall include its employees, agents, and subcontractors.
16.2. This clause 16 shall survive termination of the Agreement.
16.3. Floom's rights and remedies under these Terms are in addition to any rights and remedies implied by statute or common law.
17. INSURANCE
17.1. The Merchant shall maintain product liability insurance and public liability insurance for the duration of this Agreement, with coverage of not less than ten per cent (10%) of the Merchant's turnover during the preceding twelve (12) months of the Term, with a reputable insurer. The Merchant shall provide a copy of the insurance policy and proof of payment of the current premium to Floom upon request.
18. CONFIDENTIAL INFORMATION
18.1. Both parties agree that Confidential Information may be used only in the exercise of their rights and the performance of their obligations under this Agreement. During the Term and thereafter, neither party shall use or disclose Confidential Information except in accordance with this clause 18.
18.2. Subject to clause 18, a party may disclose the Confidential Information of the other party only:
(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 the disclosing party ensures that each person to whom such Confidential Information is disclosed is aware of its confidential nature and complies with this clause 18 as if they were a party; and
(b) to the extent required by law, to any court, governmental, regulatory, or supervisory authority (including any recognised investment exchange) or any other authority of competent jurisdiction.
18.3. To the extent that any Confidential Information constitutes Shared Personal Data, such Confidential Information may be disclosed or used only to the extent that such disclosure or use does not conflict with clause 19.
19. DATA PROTECTION
19.1. 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.
19.2. Each party shall comply with all obligations imposed on a controller under the Data Protection Legislation. Any material breach of the Data Protection Legislation by one party, if not remedied within thirty (30) days of written notice from the other party, shall give the other party the right to terminate this Agreement with immediate effect.
19.3. Each party shall:
(a) ensure that it has all necessary notices and consents in place to enable the lawful transfer of Shared Personal Data to the Permitted Recipients for the Agreed Purposes;
(b) provide full information to any data subject whose personal data may be processed under this Agreement regarding the nature of such processing, including notice that, upon termination of this Agreement, personal data relating to them may be retained by, or transferred to, one or more of the Permitted Recipients, their successors, and assignees.
Each party shall:
(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) acknowledge that Shared Personal Data may be shared with Stripe and its affiliates or sub-processors for payment processing, identity verification, fraud prevention, regulatory compliance and related payment services under this Agreement;
(f) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) that are no less onerous than those imposed by this Agreement;
(g) 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, destruction, or damage to personal data; and
(h) not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
(i) complies with the provisions of Article 26 of the GDPR (if the third party is a joint controller); and
(ii) ensures that the transfer is to a country approved by the European Commission or otherwise permitted under applicable Data Protection Legislation.
19.4. 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 regarding any notices given to data subjects in relation to the Shared Personal Data;
(b) promptly inform the other party of 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; and
(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 upon becoming aware of any breach of the Data Protection Legislation;
(g) at the written direction of the Data Discloser, delete or return the Shared Personal Data and all copies thereof to the Data Discloser on termination of this Agreement, unless required by law to retain the personal data;
(h) use compatible technology for the processing of Shared Personal Data to ensure accuracy is maintained and is not compromised by transfers of personal data;
(i) maintain complete and accurate records and information to demonstrate compliance with this clause 19; and
(j) provide the other party with the contact details of at least one employee designated as the point of contact and responsible manager for all issues arising under the Data Protection Legislation, including coordination of joint staff training, procedures to be followed in the event of a data security breach, and regular review of compliance with the Data Protection Legislation.
19.5. 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, as well as all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with any breach of the Data Protection Legislation by the indemnifying party, its employees, or agents. The indemnified party must provide the indemnifying party with prompt notice of any 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.
20. ALTERATIONS TO THE TERMS
20.1. Floom may update these Terms at any time by providing not less than fourteen (14) days' prior written notice to the Merchant. Such notification may be delivered through the Website, the Account, or by email.
20.2. Subject to clause 19.4, the Merchant may terminate the Agreement within fourteen (14) days of the date of such notification if it does not accept the changes to these Terms, by providing written notice of termination to Floom.
20.3. If no termination notice is received in accordance with clause 20.2, the changes to these Terms shall be deemed accepted by the Merchant.
20.4. Any Orders confirmed prior to, or after, the giving of a termination notice by the Merchant shall be honoured and fulfilled by the Merchant in accordance with the Customer Contract and this Agreement.
21. TERM AND TERMINATION
21.1. 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").
21.2. 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.
21.3. Floom may remove a Merchant's Studio Page and terminate the Account and this Agreement at any time without notice.
21.4. The Merchant may terminate this Agreement at any time by giving not less than three (3) months' written notice to Floom.
21.5. 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 in connection with those Orders.
21.6. 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.
22. LIMITATION OF LIABILITY
22.1. 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.
22.2. Subject to clause 22.1, 15.4 and 19 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.
22.3. Subject to clause 22.1, 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.
22.4. Subject to clause 22.1, Floom shall not be liable for consequential, indirect or special losses.
22.5. Subject to clause 22.1, 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.
23. 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.
24. GENERAL
24.1. 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.
24.2. 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.
24.3. 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 24.3(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.
24.4. 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.
24.5. 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.
24.6. 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.
24.7. 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.
24.8. 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.