US Merchant Terms and Conditions
Effective November 2, 2026
By clicking "I accept" or by otherwise making use of the Account, Merchant agrees that it has read and understood, and agrees to be bound by the following terms and conditions. In doing so, Merchant represents and warrants that it has sufficient rights, power, and authority to agree to these Terms and to perform its obligations hereunder.
Notice of Arbitration: Except for certain kinds of disputes described in Section 32, Merchant agrees that disputes arising under these Terms will be resolved by binding, individual arbitration, and by accepting these Terms, Merchant and Floom are each waiving the right to a trial by jury or to participate in any class action or representative proceeding. Merchant agrees to give up its right to go to court to assert or defend its rights under this contract (except for matters that may be taken to small claims court). Each party's rights will be determined by a neutral arbitrator and not a judge or jury. See Section 32 for more detail.
1. Interpretation
1.1 Definitions
In these Terms, the following definitions apply:
Account: the Merchant's account with Floom acting as agent to the Merchant.
Agreed Purposes: for the processing, receipt and delivery of Orders and Third Party Orders and the completion of the applicable party's obligations under these Terms.
Agreed Unit Price: the agreed unit price for the Goods, equal to the Retail Price minus the Commission.
Consumer Service Fee: a fixed fee of $5.00 (or local currency equivalent, e.g. £4.00 in the UK) 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.
Alcohol Goods: any Goods that are or contain alcohol, including wine, spirits, beer, hard seltzer and any arrangement, gift basket or gift set that includes alcohol.
Alcohol Law: all federal, state and local laws, regulations, ordinances and licence conditions governing the sale, delivery and service of alcoholic beverages in each place where the Merchant sells or delivers Alcohol Goods.
Approved Packaging: the Floom "Sender's note" card and envelope, as well as promotional packaging provided to the Merchant by Floom.
Commission: twenty five per cent (25%) of the Retail Price on all sales through the website, zero point nine nine per cent (0.99%) of the total transacted sales price of all sales through the Merchant Website or Point of Sale(POS) system unless, or as may be otherwise agreed between Floom and the Merchant.
Complaint Form: the form, available by request, for the submission of any complaint regarding goods & services supplied by a third party through the premium platform.
Confidential Information: any information belonging to a 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. Confidential Information of a party does not include (i) information already known to the other party prior to receipt, (ii) information independently obtained by the other party from a third party without any obligation to keep it confidential, (iii) information that is, at the applicable time, publicly available through no fault of the other party, or (iv) information that the other party independently develops without reference to the party's Confidential Information.
Customer: a person who places an Order for Goods from the Merchant on the Website or offline via Floom customer service.
Customer Contract: the agreement for the sale of Goods entered into between a Customer and the Merchant with Floom acting as agent, the form of which is available at https://www.floom.com/us/pages/terms-of-service, as may be updated by Floom from time to time. Floom reserves the right to make changes to the form of Customer Contract. Immaterial changes to the Customer Contract are effective upon publication. Material changes are effective upon Merchant's approval thereof, not to be unreasonably withheld, conditioned, 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 costs for the Goods that can be charged to Customers. The Delivery Cost rates are as follows:
a) $14.99 for each Good where standard delivery is selected;
b) $19.99 for each Good where same day is selected; or
c) such other delivery cost as Floom may notify to the Merchant from time to time.
Floom: BloomNation, Inc., a California corporation with offices at 1316 Third Street, Suite 301, Santa Monica, California 90401.
Florist Dashboard: a dashboard accessible via the Merchant's Account that contains, among other things, information about active orders and their status.
Force Majeure Event: as defined in Section 31 of these Terms.
FloomX Premium Features: features and services offered by Floom on the FloomX platform to Merchants with Premium Membership, including but not limited to hosting of the Merchant Website, use of FloomX website templates and use of the FloomX codebase.
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 to, 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.
Merchant: the person or company entering into these Terms.
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, billed to the Merchant via Stripe in accordance with Section 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 further described in Section 3.
Order Confirmation: as defined in Section 3.1 of these Terms.
Order Email: as defined in Section 3.1 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.
Peak Times: each year, the fourteen (14) days prior to and including: Valentine's Day, Mothers Day, and December 23rd.
Permitted Recipients: the parties to these Terms, 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 these Terms, and including without limitation delivery providers.
Photograph: any photograph of the Goods uploaded to the Website by the Merchant or Floom from time to time.
Photographic Guidelines: the guidelines provided by Floom to a Merchant regarding the Photographs that will be displayed on the Website.
Premium Membership: as defined in Section 14.2 of these Terms.
Price: the price due to the Merchant by Floom as detailed in Section 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 Section 27 of this Agreement. Shared Personal Data shall be limited to the following categories of information relevant to the following categories of data:
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 to 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 purpose of uploading such content onto the Merchant's Studio Page.
Sales Tax: relevant sales tax charged on all payments made by florists.
Terms: these Terms and Conditions for Merchants.
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 Section 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 described in Section 13.
Third Party Services: the services (or any part of them) set out in a Third Party Order.
Valid ID: an unexpired government-issued photo ID showing the holder's date of birth, such as a driver's license, state ID card, passport or military ID.
Website: www.floom.com, www.floomX.com or any other website from time to time controlled by Floom, where Floom offers the Merchant's Goods for sale or allows the Merchant to purchase Third Party Goods or Third Party Services.
Part One – terms applicable to the Merchants 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 in accordance with these Terms, and Floom hereby accepts such appointment.
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;
(d) collect and process payments and issue refunds on behalf of the Merchant for the Goods ordered by Customers;
(e) if applicable, arrange for delivery of the Goods to Customer's on behalf of the Merchant; and
(f) display Merchant's name, logos, and trademarks on the Website.
2.3 Floom shall be Merchant's exclusive agent for online sales (except for sales of Goods by the Merchant through its own website), and Merchant agrees that it shall not engage with a third party for the resale or distribution of the same or similar Goods via an internet platform.
2.4 The Merchant agrees to reasonably cooperate with Floom and to make available all personnel reasonably necessary for the setup and implementation of the systems, technology and processes required for the transactions contemplated in these Terms.
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 these Terms.
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 these Terms.
3. ORDER PROCESS
3.1 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 provided by the Customer) ("Order Email"); and
(b) an email to the Customer confirming the Order on behalf of the Merchant ("Order Confirmation").
3.2 Upon receipt of an Order Email, the Merchant shall:
(a) dispatch the Goods to the Customer on the selected delivery days, in accordance with Section 8; and
(b) ensure the Goods are delivered to the Customer within one hour of the time indicated in the Order Email, or if none, then between 10:00am and 17:00pm on the delivery date indicated in the Order Email;
(c) mark each Order 'on its way' in the Florist Dashboard within five (5) minutes of dispatch; and
(d) mark each Order 'delivered' in the Florist Dashboard within fifteen (15) minutes of delivery.
3.3 By entering into these Terms, Merchant also agrees to be bound by the terms of the Customer Contract with each Customer.
4. FLOOM'S OBLIGATIONS
4.1 During the Term, Floom agrees to:
(a) provide the Merchant with training to enable it to create a Studio Page, upload Studio Page Content, and manage the status of the Merchant's Orders on the Florist Dashboard;
(b) use commercially reasonable efforts 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 Section 11;
(d) inform the Merchant of any complaint or after sale inquiry received by Floom concerning the Goods; and
(e) issue refunds on behalf of the Merchant to Customers in accordance with Section 9.
5. STUDIO PAGE CONTENT AND MERCHANT OBLIGATIONS
5.1 The Merchant represents, warrants and covenants that it shall:
(a) include on its Studio Page: its name, logo (if Merchant has one), address(es), phone number(s), delivery post codes, a brief background about itself, Photographs of at least three (3) different goods it offers for sale, and the price and stock availability of each;
(b) ensure that all Photographs on its Studio Page comply with the Photographic Guidelines;
(c) keep all Studio Page Content up to date, materially accurate, true and complete to the best of its knowledge, and compliant with all applicable law and 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 that the goods listed as 'available' for purchase on the Website are at all times accurate and any goods that are no longer in stock are immediately listed as such on the Website;
(f) upon Floom's reasonable request, remove or replace the goods specified in the request from or on the Studio Page;
(g) fulfil Orders throughout the year, including during the Peak Times each year;
(h) provide Floom with, at the Merchant's own expense, samples of goods, sales literature and other documentation and information and such other support as Floom may from time to time reasonably request for the purposes of promoting and offering the Merchant's goods for sale on the Website and to enable Floom to properly and efficiently perform its duties under the Agreement;
(i) perform its obligations pursuant to the Customer Contracts in a timely and professional manner;
(j) prominently display marketing materials provided by Floom in the Merchant's stores in accordance with Floom's written guidelines;
(k) obtain and maintain all licenses, permissions, authorizations, consents, approvals and permits that required for Merchant to perform its obligations under the Agreement and all Customer Contracts;
(l) comply with any terms of use governing the Website; and
(m) prominently display the 'Floom Florist Community Badge' on Merchant's own website and link it to Merchant's Studio Page or the Website homepage.
5.2 Floom may, without notice and at its sole discretion, remove any Photographs or other Studio Page Content from a Merchant's Studio Page, if Floom, in its sole discretion, determines that such content does not comply with the Photographic Guidelines or other instructions, policies or guidelines that Floom may provide to Merchant.
5.3 Floom may, at its sole discretion, alter the definition of any product tier(s), including but not limited to, access to Floom X functionality, the number of Floom.com orders permitted in a given timescale and Floom.com access by providing sixty (60) days of written notice to the Merchant.
5.4 Floom may, at its sole discretion, cease to offer the merchant access to specific, previously defined product tiers, by providing sixty (60) days of written notice to the Merchant. In the event that this happens, Floom will endeavour to move a merchant on to the active product tier, most closely resembling the Merchants existing tier at the time written notice is given.
5.5 Floom may, without notice and at its sole discretion, alter the areas a florist can accept orders for delivery to through the Floom.com platform.
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 retail quality and fit for the purpose such Goods are held out by the Merchant for, or made known to the Merchant by a Customer or by Floom, whether expressly or by implication; and
(c) comply with all applicable statutory and regulatory requirements relating to the labelling, packaging, storage, handling and delivery of the Goods.
6.2 The Merchant warrants that it shall not modify or add writing on the Approved Packaging without Floom's prior written permission except for the gift message indicated on the Order Email and the Recipient's name, address and contact number.
6A. ALCOHOL GOODS
6A.1 Licensing. The Merchant shall not list or sell Alcohol Goods via the Website unless it holds, and maintains for as long as any Alcohol Goods are listed, all licences and permits required under Alcohol Law to sell alcohol for consumption off its premises and to deliver it to Recipients, covering the premises from which the Alcohol Goods are dispatched and every area to which it delivers them.
6A.2 Licence details. Before listing any Alcohol Goods, the Merchant shall enter the number of each licence and permit required under Section 6A.1 in FloomX in the manner Floom specifies, and shall keep them up to date. The Merchant shall also provide Floom with copies of the licences and permits required under Section 6A.1 within five (5) business days of Floom's request.
6A.3 Changes to licence. If any licence or permit required under Section 6A.1 is suspended, revoked, surrendered or expires, or no longer covers delivery to an area the Merchant serves, the Merchant shall immediately remove all affected Alcohol Goods from its Studio Page and shall not relist them until this is remedied.
6A.4 Flagging. The Merchant shall identify all Alcohol Goods using the alcohol checkbox on product upload, or such other method as Floom specifies. Floom may remove any unflagged listing that contains alcohol without notice.
6A.5 Delivery and age verification. The Merchant shall ensure that Alcohol Goods are:
(a) handed only to a person aged twenty-one (21) or over who shows Valid ID at the point of delivery;
(b) not left unattended, at the door or with a neighbor, or with any person who is under 21, cannot show Valid ID, or appears to be visibly intoxicated;
(c) delivered only to addresses where the Merchant is licensed to deliver and delivery is permitted by Alcohol Law;
(d) delivered only by the Merchant's own employees who have completed any alcohol seller or server training required by Alcohol Law, and not by any third-party delivery provider unless Floom has agreed in writing; and
(e) delivered within the hours permitted by the Merchant's licence and Alcohol Law.
6A.6 Failed age verification. Where Alcohol Goods cannot be handed over under Section 6A.5, the Merchant shall not leave the Goods or a calling card in lieu of delivery, shall return the Alcohol Goods to its premises, and shall notify Floom the same day via the Order Help button, stating the reason. Floom shall deal with the Customer in accordance with the Customer Contract. Any such failure shall be treated as caused by the Recipient for the purposes of Section 8.6.
6A.7 Records. The Merchant shall keep a record of refused or failed age-verified deliveries for at least twelve (12) months and provide such records to Floom on request.
6A.8 Floom's rights. Floom may, at its sole discretion and without notice, reject any Order for Alcohol Goods, remove or suspend any Alcohol Goods listing, restrict the areas to which Alcohol Goods may be ordered, or suspend the Merchant's ability to list Alcohol Goods, including where Floom reasonably believes the Merchant is in breach of this Section 6A.
6A.9 Responsibility. The Merchant acknowledges that it is the seller of Alcohol Goods, that Floom acts solely as its agent and does not hold any licence for the sale of alcohol, and that the Merchant is solely responsible for compliance with Alcohol Law. No check, flag or review carried out by Floom shall reduce the Merchant's obligations under this Section 6A.
6B. FOOD AND DRINK
6B.1 Allergen and dietary information. Where the Merchant lists any Goods that are or contain food or drink, it shall complete the allergen and dietary fields on product upload, or use such other method as Floom specifies, accurately and in full, and shall keep them up to date. Floom may remove any such listing without notice where it reasonably believes this information is missing or inaccurate.
6B.2 Responsibility. The Merchant is solely responsible for the accuracy of the allergen and dietary information for its Goods, and for complying with all federal, state and local food safety, labeling and allergen laws that apply to them. Floom displays this information as provided by the Merchant and is not obliged to verify it. Any check or review that Floom chooses to carry out shall not reduce the Merchant's obligations under this Section 6B.
7. INSPECTION RIGHTS
7.1 Upon at least two days' notice, Floom may visit any of the Merchant's retail outlets or warehouses to:
(a) inspect the Merchant's goods; or
(b) take photographs of the Merchant's goods as reasonably necessary for the purpose of promoting the Merchant's goods on the Website.
7.2 Any such visit shall occur during normal business hours and the Merchant shall reasonably cooperate with Floom in conducting the inspection.
7.3 If, following such inspection, Floom reasonably determines that any of the Merchant's goods do not conform or are unlikely to comply with the Merchant's obligations in these Terms, Floom shall inform the Merchant and the Merchant shall immediately take the necessary actions to remedy the deficiency.
7.4 Notwithstanding the occurrence of an inspection, the Merchant will remain responsible for the Goods and an inspection shall not affect the Merchant's obligations under these Terms.
7.5 Merchant shall keep separate accounts and records containing complete and accurate details of all transactions conducted through the Website, including any invoices and receipts relevant to the Goods purchased through the Website and any other documents, records or information necessary to enable Floom to verify the Merchants compliance with its obligations under these Terms. Upon written request from Floom, Merchant shall promptly provide copies of such records to Floom.
8. DELIVERY OF CUSTOMER GOODS
8.1 The Merchant shall deliver the Goods in accordance with the Order Confirmation and the terms of the applicable Customer Contract. If the Order Confirmation conflicts with the terms of the applicable Customer Contract, the Order Confirmation shall control.
8.2 The Merchant is responsible for the delivery of the Goods to the Recipient, including the costs of packaging and insuring the Goods. Floom is not responsible for, and disclaims any liability arising out of or related to Merchant's dealings with third party delivery providers engaged to deliver the Goods. Title to the Goods shall pass to Customer in accordance with the Customer Contract, or, if not specified in the Customer Contract, then when Goods are delivered to the Customer.
8.3 Save in respect of Alcohol Goods, which are subject to Section 6A.6, 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 redeliver the Goods a second time on the date and time agreed upon with the applicable Customer or Recipient.
8.4 The Merchant shall notify Floom immediately via email, phone or the account interface in the event that:
(a) the Merchant's stock of goods becomes unavailable for any reason;
(b) the Merchant anticipates that it will not be able to deliver any Goods to a Recipient within the estimated timeframe for delivery as stated in the Order Email or redeliver the Goods in accordance with Section 8.3 above; and
(c) the Merchant fails to deliver the Goods to a Recipient within the estimated timeframe for delivery stated in the Order Email or redeliver the Goods in accordance with Section 8.3 above.
8.5 If the Merchant fails to deliver Goods to a Recipient within the time stated in the Order Email, or fails to redeliver the Goods in accordance with Section 8.3 above, then Floom may either:
(a) arrange for alternative Goods similar to the Goods ordered by the Customer to be delivered to the Recipient, in which case, the Merchant shall be responsible for payment to Floom of:
(i) any difference between the Retail Price of the unfulfilled Order and the Retail Price of the replacement Goods;
(ii) any compensation offered to the Customer for any delay in the delivery and change in Goods as reasonably determined by Floom; and
(iii) a flat fee of twenty dollars ($20) to reflect the additional administration costs incurred by Floom; or
(b) refund the Customer in full for the Retail Price and any Delivery Costs, in which case, the Merchant shall be responsible for payment to Floom of:
(i) the Commission;
(ii) a flat fee of twenty dollars ($20) to reflect the additional administration costs incurred by Floom; and
(iii) any compensation offered to the Customer for the failure to deliver the Goods, as reasonably determined by Floom.
8.6 For the avoidance of doubt, Section 8.5 shall not apply to Merchant's failure to deliver or redeliver the Goods to the extent such failure is caused by Customer, Recipient or Floom.
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 authorizes 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 these Terms; 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; and
(c) 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.
10.3. Unpaid subscription fees. If any Monthly Subscription Fee or Third Party Fees due under these Terms are unpaid, Floom may:
(a) withhold payouts to the Merchant, up to the amount overdue, until all overdue fees are paid; and
(b) if any such fee remains unpaid sixty (60) days after its due date, remove the Merchant's Goods from the Website until all overdue amounts are paid.
The Merchant shall continue to fulfil all Orders received during this period in accordance with these Terms.
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 where no refund is requested in accordance with Section 9; 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. The Agreed Unit Price is exclusive of the Consumer Service Fee, which is retained by Floom. The Price is inclusive of any applicable taxes (except for each party's net income taxes) but exclusive of the Delivery Cost.
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 these Terms.
11.4 Payment to the Merchant shall be made in United States dollars via the Merchant's Stripe Connected Account.
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 through the Website.
11.7 Floom shall be entitled to set off or deduct any monies owed by the Merchant to Floom related to any Orders, Third Party Orders, Delivery Costs, delivery costs in relation to the Third Party Goods or other costs in connection with these Terms from any amounts otherwise due to the Merchant under or in connection with these Terms, including by way of adjustment to transfers via the Stripe Connected Account.
Substitution Policy
11.8. Floom shall provide merchants with the option to make substitutions for ordered items, subject to the following conditions:
11.8.1. Notification: Merchants must notify Floom immediately of any intended substitutions, and in any event before the Goods are delivered.
11.8.2. Approval: Floom reserves the right to approve or deny any requested substitutions at its sole discretion. Approval shall be communicated to the Merchant in writing or via electronic means.
11.8.3. Failure to Notify: In the event that substitutions are made without prior notification to Floom, a flat fee of $20 (USD) will be charged to the Merchant for each occurrence.
11.8.4. Billing: The $20 substitution fee will be deducted from any payments owed by Floom to the Merchant under or in connection with this Agreement.
11.8.5. Alcohol Goods: Merchants shall not substitute Alcohol Goods into an Order that did not include Alcohol Goods, and may only substitute Alcohol Goods with other Alcohol Goods.
Part Two – terms applicable to the Merchant in purchasing Third Party Goods and Third Party Services through its Account and utilizing FloomX premium features
12. PREMIUM MEMBERSHIP
The Merchant must subscribe for Premium Membership (as defined in Section 14.2) in order to access and utilize FloomX Premium Features, and use the Website to purchase Third Party Goods or Third Party Services.
13. ORDER PROCESS
13.1 The Merchant may purchase Third Party Goods and Third Party Services through its Account via the Website.
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 complete and maintain the required billing set-up through Stripe in order to purchase Third Party Goods or Third Party Services from Floom.
14.2 The Merchant shall pay the Monthly Subscription Fee and any applicable sales tax 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 three (3) months' Monthly Subscription Fee and applicable sales tax 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 and any applicable sales tax shall be charged monthly in advance through the Merchant's Stripe billing set-up.
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;
(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; and
(d) any applicable sales tax for the relevant third party goods or services purchased through the Website.
14.4 The Third Party Fees shall be charged through the Merchant's Stripe billing set-up at the point that the Merchant places a Third Party Order.
14.5 If the Third Party Fees cannot be successfully charged through the Merchant's Stripe billing set-up for any reason, the Merchant shall remain liable for the full cost of the Third Party Fees as a debt to Floom.
14.6 Merchant authorizes Floom, Stripe and their payment processors to charge the Monthly Subscription Fee and all amounts owed for the purchased Third Party Goods and Third Party Services, including any applicable taxes, through the Merchant's Stripe billing set-up or to the payment method provided to Floom or Stripe, as applicable. If such payment method is via credit card, Merchant authorizes Floom, Stripe and their payment processors to seek pre-authorization of the credit card account prior to the purchase to verify that the credit card is valid and has the necessary funds or credit available to cover the purchase.
14.7 The Merchant shall indemnify Floom for any losses Floom incurs, including all reasonable administrative fees, as a result of the Merchant's Stripe billing set-up not being valid or capable of being charged with any Third Party Fees.
14.8 Floom reserves the right to change the Monthly Subscription Fee for access to any given Product Tier by providing thirty (30) days written notice to the Merchant.
15. THE THIRD PARTY GOODS
15.1 If any Third Party Goods are out of stock:
(a) these shall be exchanged for Third Party Goods that are in stock and similar in all material respects, 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.
15.2 Any similar Third Party Goods supplied in accordance with Section 15.1(a) shall be considered to conform in all material respects to the Third Party Order for the purposes of the warranties in Section 15.3(a).
15.3 Floom warrants that the Third Party Goods shall:
(a) conform in all substantial respects to the Third Party Order; and
(b) be free from material defects.
15.4 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 Section 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 of a defective Third Party Good shall be Merchant's sole remedy and Floom's exclusive liability for any breach of the warranties in Section 15.3.
15.5 The provisions of these Terms, including the warranties set out in Section 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.
15.6 Floom shall not be liable for any failure of the Third Party Goods to comply with Section 15.3:
(a) if such failure is the result of Merchant's willful misconduct or negligence;
(b) to the extent such failure is caused by the Merchant's failure to comply with the Third Party's instructions regarding the use or maintenance of the Third Party Goods; or
(c) in the event Merchant continues to use any of the Third Party Goods after notifying Floom that they do not comply with Section 15.3.
Except as set forth in this Section 15, Floom makes no warranties with respect to the Third Party Goods. The Third Party Goods are provided "as is" and on an "as available" basis, and Floom disclaims any and all warranties, whether express or implied, relating to the same, including any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement, and any warranty arising out of course of dealing, usage or trade.
16. DELIVERY OF THIRD PARTY GOODS
16.1 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.
16.2 Time of delivery is not of the essence. Floom shall use commercially reasonable efforts to deliver the Third Party Goods on or before the delivery date requested.
16.3 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.
16.4 In the event of a failed or delayed delivery caused by Merchant:
(a) the Merchant shall:
(i) promptly inform Floom of 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 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.
17. RISK AND TITLE IN THE THIRD PARTY GOODS
Title to the Third Party Goods shall pass to the Merchant on delivery.
18. THE THIRD PARTY SERVICES
18.1 Floom warrants that the Third Party Services shall conform in all material respects to the Third Party Order, and will be performed in a workmanlike manner in compliance with all applicable laws and regulations.
18.2 Floom shall, at its option, remedy, re-perform or refund the Third Party Services that do not comply with Section 18.1, provided that the Merchant:
(a) notifies Floom no later than twenty-four (24) hours after performance is completed 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,
This Section 18.2 constitutes Merchant's sole remedy and Floom's exclusive liability with respect to a breach of the warranty in Section 18.1.
18.3 The provisions of these Terms, including the warranties set out in Section 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.
Except as set forth this Section 18, Floom makes no warranties with respect to the Third Party Goods and Third Party Services. The Third Party Goods and Third Party Services are provided "as is" and on an "as available" basis, and Floom disclaims any and all warranties, whether express or implied, relating to the same, including any implied warranty of merchantability, fitness for a particular purpose, title, quiet enjoyment, or non-infringement, and any warranty arising out of course of dealing, usage or trade.
19. PERFORMANCE OF THE THIRD PARTY SERVICES
19.1 Floom or the applicable Third Party may perform the Third Party Services in instalments. Any delay in performance or defect in an instalment shall not entitle the Merchant to cancel any other instalment.
19.2 Time of performance of the Third Party Services is not of the essence. Floom shall use commercially reasonable efforts to ensure that the Third Party Services are performed prior to or by any agreed upon performance dates.
19.3 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.
Merchant agrees to reimburse Floom for any losses, liabilities or costs incurred as a result of Merchant's failures described in Sections 19.3(a)(i) through (a)(iii).
Part Three – terms that apply to any goods or services sold or purchased under or in connection with this Agreement
20. LICENSE
Subject to payment of all associated fees and subject to Merchant's ongoing compliance with these Terms, Floom hereby grants to the Merchant while these Terms are in effect, a non exclusive, non-transferable, revocable licence to use the Website, including setting up and using its Account, Studio Page and Merchant Website solely as necessary for Merchant to perform its obligations as contemplated in these Terms.
21. AVAILABILITY
21.1 Floom shall use commercially reasonable efforts to make the Website available for the provision and receipt of Goods, Third Party Goods and Third Party Services as set forth in these Terms.
21.2 The Merchant acknowledges that the Website may be unavailable at times for maintenance, upgrades, or security updates.
21.3 Floom shall use commercially reasonable efforts to give the Merchant prior notification of any planned unavailability of the Website.
22. ACCEPTABLE USE OF WEBSITE
22.1 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.
22.2 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.
23. INTELLECTUAL PROPERTY RIGHTS
23.1 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.
23.2 Nothing in these Terms shall confer on the Merchant any interest of whatever description or nature in the Floom Materials or any other Intellectual Property Right 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.
23.3 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.
23.4 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 while these Terms are in effect and for a reasonable period after termination or expiry thereof to enable Floom to remove or cease publication of any such content.
24. MERCHANT INDEMNITY
24.1 The Merchant shall indemnify Floom, its officers, directors, employees, and agents from and against every third party claim, and any related damage, loss and expense (including reasonable attorneys' fees) arising out of or related to:
(a) any breach by the Merchant of a Customer Contract;
(b) a dispute or issue between Merchant and a Customer or other third party;
(c) the 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) the supply of the Goods;
(e) death, personal injury or damage to property arising out of, or in connection with, defects in the Goods; and
(f) any breach by the Merchant of Section 6A, Section 6B or Alcohol Law, including any resulting fine, penalty, licence action or prosecution.
References to the Merchant in this Section 24.1 shall include its employees, agents and subcontractors.
24.2 This Section 24 shall survive termination or expiration of these Terms.
24.3 Floom's rights and remedies under these Terms are in addition to its rights and remedies available under applicable law or regulation.
25. INSURANCE
25.1 While these Terms are in effect, Merchant shall maintain product liability insurance and public liability insurance in an amount that is at least ten per cent (10%) of the Merchant's turnover for its most recent fiscal year with a reputable insurer and shall provide a copy of the insurance policy and proof of payment of the current premium to Floom upon request. Where the Merchant sells Alcohol Goods, such insurance shall include liquor liability coverage. Where the Merchant sells Goods that are or contain food or drink, such insurance shall expressly cover the sale and delivery of those Goods.
26. CONFIDENTIAL INFORMATION
26.1 Both parties agree that it may use the other party's Confidential Information only in the exercise of its rights and performance of its obligations under this Agreement and it shall not use or disclose the Confidential Information except in accordance with this Section 26.
26.2 Subject to Section 26.3, 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 for such party to exercise its rights and perform its obligations as set forth in these Terms, 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 Section 26 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.
26.3 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 Section 27.
27. DATA PROTECTION
27.1 This Section sets forth 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.
27.2 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation with respect to Shared Personal Data it discloses to the other party, 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 these Terms with immediate effect.
27.3 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 these Terms of the nature such processing. This includes giving notice that, on the termination or expiration of these Terms, 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 assigns;
(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 these Terms;
(f) 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 these Terms;
(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 or destruction of, 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 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.
27.4 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 upon termination or expiration of these Terms 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 Section 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.
27.5 The Merchant shall indemnify Floom 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 Floom arising out of or in connection with the breach of the Data Protection Legislation by the Merchant, its employees or agents, provided that Floom gives to the Merchant 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.
28. ALTERATIONS TO THE TERMS
28.1. 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.
28.2 Subject to Section 28.4, the Merchant may terminate the Agreement within seven (7) 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.
28.3 If no termination notice is received in accordance with Section 28.2 then any such changes to these Terms shall be deemed accepted.
28.4 Any Orders confirmed prior to or after the notice to terminate has been given by the Merchant shall be honored and fulfilled by the Merchant in accordance with the Customer Contract and these Terms prior to the change.
29. TERM AND TERMINATION
29.1 These Terms shall come into effect on the date the Account is activated by the Merchant by clicking the link in the email sent by Floom and accepts these Terms. These Terms shall continue until terminated in accordance with these Terms.
29.2 Either party may terminate these Terms 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 remedied within ten (10) days of receiving written notice of such breach; or
(c) the other party is subject to an Insolvency Event.
29.3 Floom may remove a Merchant's Studio Page and terminate the Account and these Terms at any time upon notice to Merchant.
29.4 The Merchant may terminate these Terms by providing Floom no less than three (3) months' prior written notice.
29.5 Upon termination of these Terms by either party:
(a) 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;
(c) the Merchant shall fulfil any Orders placed prior to the date of termination and otherwise comply with these Terms with respect to those Orders, including the payment of Commissions, as applicable, to Floom in connection with those Orders; and
(d) once all Orders placed before termination have been fulfilled, Floom shall pay the Merchant any sums due to it under these Terms, less any amounts the Merchant owes Floom, including unpaid subscription fees, Commissions, refunds to Customers and any fees or penalties under these Terms. If the amounts the Merchant owes Floom exceed the sums due to the Merchant, the Merchant shall pay the difference to Floom within fourteen (14) days of Floom's request.
29.6 Termination of these Terms, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Sections which expressly or by implication survive termination of the Terms shall continue in full force and effect.
30. LIMITATION OF LIABILITY
30.1 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.
30.2 Subject to Sections 16.4, 19.3, and 30.1, to the fullest extent permitted by applicable law, (i) in no event will Floom be liable for any indirect, incidental, special, consequential, or punitive damages (including damages for loss of profits, goodwill, data, opportunity, or any other intangible loss) arising out of or related to the subject matter of these Terms; and (ii) the aggregate liability of Floom arising out of or related to the subject matter of these Terms, regardless of whether such liability arises in tort (including negligence), contract, or otherwise shall not exceed the Commission retained by Floom in connection with the Order giving rise to or otherwise related to the first claim arising from or relating to the subject matter of these Terms.
30.3 Subject to Section 30.1, 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. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performing its obligations under these Terms 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 affected party shall use reasonable efforts to cure any such events or circumstances and resume performance under these Terms (a "Force Majeure Event"). If any Force Majeure Event prevents the Merchant from carrying out its obligations hereunder for a continuous period of more than fourteen (14) days, Floom may terminate these Terms immediately by providing written notice to the Merchant.
32. DISPUTE RESOLUTION AND ARBITRATION
32.1 Generally. Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising in any way out of or in connection with these Terms, including the existence, validity, interpretation, performance, breach or termination of the Terms, or any dispute regarding pre contractual or non-contractual rights or obligations arising out of or relating to it ("Dispute") will be referred to and finally resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. MERCHANT UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, MERCHANT AND FLOOM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
32.2 Arbitrator. Any arbitration between the parties will be settled under the Federal Arbitration Act and administered by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules (collectively, the "Rules") as modified by these Terms. The Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Floom. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
32.3 Process. Floom will reimburse Merchant for its payment of the filing fee, unless Merchant's claim is for more than $10,000, in which case the payment of any fees will be decided by the Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles, California, but if the claim is for $10,000 or less, Merchant may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the Rules in the county (or parish) of the address provided to Floom for notice. The arbitration tribunal will consist of three arbitrators to be appointed in accordance with the Rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction.
32.4 No Class Actions. MERCHANT AND FLOOM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Merchant and Floom agree otherwise, the arbitrator may not consolidate more than one individual's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.
32.5 Modifications to this Arbitration Provision. If Floom makes any future change to this arbitration provision, other than a change to Floom's address for notice, Merchant may reject the change by providing Floom with written notice within 30 days of the change, in which case Merchant's Account will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes that Merchant rejected will survive.
32.6 Enforceability. If Section 32.4 is found to be unenforceable or if the entirety of this Section 32 is found to be unenforceable, then the entirety of this Section 32 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 33.8 will govern any action arising out of or related to these Terms.
33. GENERAL
33.1 Assignment and subcontracting
(a) The Merchant may not assign or transfer these Terms or its rights under these Terms, or subcontract its obligations under these Terms, in whole or in part, by operation of law or otherwise, without Floom's prior written consent.
(b) Floom may assign or transfer these Terms to any member of its group, or to any purchaser of all or part of its business, by giving prior written notice to the Merchant.
33.2 Entire Agreement
(a) The parties agree that these Terms constitute the entire and exclusive understanding and agreement between them regarding the subject matter of these Terms, and supersede all previous agreements, understandings and arrangements between them.
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 Section, and shall be delivered personally, or sent by recorded delivery, commercial courier or e-mail.
33.4 Severance
(a) If any term or other provision of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law or public policy, such term or provision will be modified by such court to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the relevant term or provision will be severed and the remaining terms of these Terms will continue to be valid and enforceable to the fullest extent permitted by law.
(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. Failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not 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
These Terms not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
33.7 Variation
Except as expressly provided in these Terms, these Terms may not be modified except by a writing signed by authorized representatives of both parties.
33.8 Governing law and jurisdiction
These Terms, 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, the laws of the State of California, without regard to its conflict of law provisions, and the parties irrevocably submit to the exclusive jurisdiction of the federal or state courts located in the County of Los Angeles, California.