Worldwide Client Terms and Conditions
These Terms and Conditions (these “T&Cs”) apply to, and are incorporated into, each Client Order Form. All capitalized terms not defined herein have the meaning given to them in the applicable Client Order Form. If there is a conflict between these T&Cs and a Client Order Form (collectively, the “Agreement”), the Client Order Form will take precedence.
1. The Flow Solution.
1.1 General. The Flow Solution allows for Customer Orders (as defined below) of Client’s products utilizing Flow’s software-as-a-service platform and solution (the “Flow Solution” or “Solution”), within the United States on a non-cross-border basis, for export sales (i.e., where the goods cross a customs border for the delivery of such good after the purchase by the consumer, each an “Export Sale”) or as an Intra-Community sale in the EU(together with Export Sales, “Non-US Sales”). Client and/or Client’s third-party developer will implement and incorporate the appropriate, required and/or optional portions of the Solution related interfaces into Client’s existing website and order management system in accordance with Flow’s Documentation (as defined below) and with Flow’s standard set-up and technical support described below (the “Flow-Enabled Client Website”) in order to offer the Solution. A “Customer Order” shall mean any sale utilizing any portion of the Flow Solution. Any updates to the location of the inventory listed on the Order Form (each a “Home Country”), shall require an amendment to the Order Form, which Flow may accept or not accept in its sole discretion. Flow agrees to use commercially reasonable efforts to support and offer the: (i) delivery destination options as displayed in the Console for Non-US Sales (“International Geographies), (ii) billing currencies for Non-US Sales (“International Currencies”), (iii) shipping options via third parties (“Logistics Providers”), (iv) duty and tax calculations and estimates and (v) payment options and platforms (“Payment Options”), and (vi) other available functions and features in the Solution for applicable International Geographies, in each case as described in Flow’s then current Solution documentation available at https://docs.flow.io and/or https://console.flow.io (together the “Documentation”), for Customer Orders processed through the Solution and/or Flow-Enabled Client Website pursuant to, and in accordance with, this Agreement, the Order Form and the Documentation. Flow will be the merchant of record and collect payment for Customer Orders processed through the Solution, unless otherwise stated in the Customer T&Cs (as defined below).
1.2 Set-Up and Integration Support; Initial launch. Flow will provide set-up support documentation and reasonable assistance services to support the set up and integration of the Flow-Enabled Client Website and Solution. Additional support may require professional services at Flow’s then-current rate card; provided, that provisional services will only be provided pursuant to a written agreement between the parties. Client will reasonably cooperate and assist Flow in maintaining integration and interoperability between each Party’s respective environments. Additionally, the Services may contain features designed to interoperate with software applications, online services or other products and services offered by third parties. Flow acknowledges that Client utilizes third party software and services as part of its ecommerce platform and that in order to set up and integrate the Solution, integration with such third party software and services may be required and that confidential information about such third parties may be shared with Flow. Such third party confidential information shall be deemed Client’s Confidential Information and subject to the terms of these Terms and Conditions. Client acknowledges that Flow shall not be required to enter into any agreement with these third party providers and that Client shall ensure that it has all rights necessary for Flow. to integrate with such third party providers. Additionally, any protections afforded Flow hereunder with regard to Client’s software or services shall include third party software and services. Failure by Client to follow the Documentation and any other implementation instructions may result in certain features, functionalities or Payment Options (as defined below) from being available. During the Term, Client may elect to implement and/or use any method of systems exchange data made available by Flow for the purpose of integrating the Flow-Enabled Client Website. In the event Flow hosts the checkout page for Client, as between Client and Flow, Client shall be responsible for all software, javascript, tags, beacons, pixels and any other code not supplied by Flow. If Client sold its products in certain countries prior to launching with Flow, Client shall use the same settings for the initial launch with Flow for such countries, including, but not limited to (i) inclusion (or not) of local language, (ii) inclusion (or not) of local currency, (iii) the tax and duty settings (e.g, whether duties are collected at checkout). These setting shall remain in place for a minimum of two to four weeks and shall only be modified a. once a statistically significant number of sales per country have been processed, and b. in conjunction with advice from Flow. All countries (other than those for which products cannot be sold legally) shall be launched within two weeks from the Initial Term commencement.
1.3 Product Information. Client will send Flow accurate and sufficient product information in formats and at a frequency defined by the Documentation and interfaces (“Product Information”). Product Information will include product related attributes as required to accurately classify products and identify restricted items (including but not limited to country of origin and materials, and dutiable prices for the purposes of calculating taxes, if Client offers products at a promotion price or promotional duty, GST, VAT (or similar tax) or shipping rates or for other applicable situations). The Services provide recommendation on the proper harmonization code for each product based on the Product Information provided and Client shall be responsible for confirming proper code to be applied. The Console defaults to a country of origin of China and Client shall be responsible to update such country of origin for each of its products. If Client is using the Solution to facilitate or manage logistics, Client will also provide additional data related to the weight, packaged dimensions and packaging materials, as required to estimate shipping costs (such data is “Shipping Information” and part of the Product Information defined above). Subject to the accuracy, sufficiency and completeness of the Product Information, Flow will, for each product, reasonably assist in determining if any customs, export, transportation, processing, legal, regulatory, value-based or similar restrictions exist. Flow will enforce product restrictions made known through the Console by Client to Flow. Flow will identify such products that may be illegal, dangerous, perishable, misrepresented, offensive and/or distasteful, or which are deemed “restricted” or “prohibited” by customs brokers, payment processors or providers and/or end delivery carriers and Flow will use reasonable efforts to notify Client such prohibitions or restricted products in advance. For purposes of clarification, Flow is not a customs broker and does not provide custom broker services.
1.4 Customer Experience Management Console. Flow will provide access and credentials to Client for its web-accessible business management application (the “Console” which is part of the Solution) as part of set up. Flow will provide orientation and education to a Client designate on the features and proper usage of the Console. Through the Console’s functions and features, Client designated users will be able to (i) upload a catalog to make available product for sale, including the full description of the products (including but not limited to country(ies) of origin, materials, category, and core functionality), (ii) identify product restrictions, (iii) set price rounding functions, (iv) set the desired local currency, (v) solely for Export Sales, chose to collect duties and tax at the time of checkout or not, (vi) select payment methods, (vii) select ship carriers and ship rules, (viii) define and price ship tiers, (ix) track orders (including refunds), in each case, as described in the Documentation and as applicable, and (x) adding or delete users (subject to Section 2.2(a)).
1.5 Quotes; Duty. This Section 1.5 applies solely to Export Sales. For customers who initiate a checkout through the Solution or Flow-Enabled Client Website, Flow will calculate (if Client is using all Solution modules and to the extent it has provided accurate and comprehensive Product Information) cost quotes for the purchase and fulfillment of Client product(s) to International Geographies (“Fully Landed Cost Quotes”). Fully Landed Cost Quotes will be inclusive of Flow’s estimate of (i) the duties and/or taxes that will be required to be paid as a result of shipping to the desired address in the International Geography, if applicable and requested and (ii) the amounts Flow charges to export, clear customs, transport and deliver, as applicable, any resulting parcel(s) to the desired address in the International Geography. Subject to the remainder of this Section 1.5, Flow shall guarantee the Fully Landed Cost Quote and regardless of the actual cost Client shall not be billed for undercalculation by Flow of the Fully Landed Cost Quote (the "Guarantee"). Once accepted by the customer, Fully Landed Cost Quotes will be Guaranteed until the customer’s receipt of their Customer Order if Client is using all Solution modules and has provided accurate and comprehensive Product Information. However, if, with respect to a given transaction, shipping is delayed by a period in excess of the foreign currency rate lock period set out in the Client Order Form, then Flow will process such transaction with the customer per the Fully Landed Cost Quote at the rate determined under this Agreement in effect at the time the Customer Order was placed and adjust the settlement amount due to Client under this Agreement by the foreign exchange variance arising after the rate lock period ends. Notwithstanding any of the foregoing Fully Landed Cost Quote do not include standard additional third-party charges, which Flow shall pass through (e.g., fuel surcharges, change of address fees and oversized parcel fees). In the event Client (x) provides discount codes to reduce the value of the purchases or customers requires duty to be paid on the full value of the purchase, or (y) purposefully collects less duty than is required, or (z) overrides any harmonization code suggestion provided by the Services, then in each case,Client shall be responsible for the difference between the related amount charged to Flow by the logistics provider (including any penalties or interest, if any) charges Flow and the amount collected from the customer. In the event the Order Form states both a guarantee and a true up/down, the terms relating to the Guarantee shall take precedence. The Guarantee is Client’s sole and exclusive remedy (which, for purposes of clarification includes indemnification) for any incorrect calculations of the Fully Landed Cost Quote.
1.6 Transactions. The Parties acknowledge that Client is utilizing the payment processing portion of the Solution to make available Client products to customers either in the US or for Non-US Sales, and that when a customer places (and Flow accepts) an order and Flow processes that order, that customer will be placing their order with Flow (or its designated affiliate). To effectuate such transaction, Flow (or its designated affiliate) will purchase the product that the customer has selected from Client for the same price (i.e., without discount or markup) as the customer pays, and Client will sell and transfer title to that product to Flow (or Flow’s designated affiliate), immediately prior to the sale of the product to that customer. Client will cause the customer to agree to and be bound to Flow’s applicable (i.e., either US T&Cs for US sales or non-US T&Cs for Non-US Sales) then-current customer terms and conditions (together with the Client’s consumer-facing terms, the “Customer T&Cs”) relating to Customer Orders, and shall include such Customer T&Cs in each confirmation email, for Flow to fulfill its obligations and comply with any credit card association or similar payment industry obligations regarding the presentation and disclosure of the merchant of record. The foregoing shall apply regardless of whether Client utilizes Flow’s hosted checkout. Additionally, in the event Client utilizes its own logistics carriers, the parties agree that the shipping arrangement shall be on Flow’s behalf as a subcontracted obligation in order to facilitate the fulfillment of the sale by Flow to the consumer. Flow’s Customer T&Cs for US sales are located https://link.flow.io/terms/client/usa and Flow’s Customer T&Cs for Non-US Sales are located at https://link.flow.io/terms/consumer. Unless otherwise agreed and approved by the Parties, the Customer T&Cs will, among other things, inform the customer that the transaction will be between the customer and Flow (and/or its designated affiliate), that Flow (or its designated affiliate) will be purchasing the products from Client for the purpose of selling such products to the customer, and that title of merchandise will transfer from Client to Flow (or its applicable affiliate) and will then immediately transfer from Flow (or its applicable affiliate) to customer. The Customer T&Cs for Non-US Sales are governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”), and Client shall ensure that it is in compliance with the “seller” obligations under CISG, or shall specifically modify or disclaim such obligations in its own terms of use. Flow shall determine, in its sole discretion, the timing and location of such title transfers (though title to the customer shall transfer prior to importation into the country where the delivery address is located). Additionally, Client shall ensure that its website contains a complete description of the goods offered, returned merchandise and refund policy, client services contact, address, delivery policy, consumer data protection policy and any other legally required provisions. For purposes of the Agreement, “affiliate” means an entity controlled by, controlling, or under common control of Flow Commerce Inc.
1.7 Logistics and Customs Clearance. Unless agreed to in advance in writing, for Export Sales Flow will be named as the exporter of record on all physical or electronic documents relating to Customer Orders processed by Flow if Client is using Flow’s recommended carrier and the shipping rate card. For those Customer Orders processed by Flow, as between Client and Flow, Flow will be responsible for the timely remittance of duties and taxes owed to the appropriate governmental authority in connection with imports, if Customer prepays the duty, unless provided for otherwise in the Customer T&Cs. Unless agreed to in advance in writing, for US sales Client will be the party responsible for all sales and use taxes on all purchases and shall be deemed the seller for state tax nexus purposes. In the case of the carrier being unsuccessful with delivery to the customer, Flow will request Client either authorize a return or authorize Flow to attempt the re-shipment of the parcel to the same or a new address at Client’s cost.
1.8 Shipping; Product Risk of Loss or Damage. Customer Orders will be shipped by Client through transportation and shipping carriers at rates set forth in Flow’s then current shipping rate card tables (which are subject to change as and if carriers change their rates or add surcharges) or as otherwise agreed. Client shall ensure that all goods are packaged and shipped in a manner that is safe and secure for all handlers of such goods, and for the shipping method (e.g., air versus water). In no event is Flow responsible for the acts or omissions of any carriers, including any loss or damage to products. Client shall work with Flow to set the parameters of when insurance coverage shall be included in a transaction and shall ensure it has proper insurance for the type of good as may be required by the carrier or applicable law. If product is lost or damaged and such transaction is covered by the insurance, in the event of loss that Client notifies Flow, Flow will file an insurance claim with the insurance provider and remit to Client any amounts received as a result of that claim. All insurance coverage and claims shall be subject to the related terms and conditions. As between the Parties, Client is responsible for all risk of loss or damage relating to the products and will re-process and re-fulfill orders and process and accept returns, as applicable, and for any additional shipping, handling or other processing costs relating thereto.
1.9 Customer Payment Options. Flow agrees to offer Payment Options and facilitate settlements with customers for Customer Orders through its Services if Flow is the merchant of record in accordance with the Agreement, Documentation, and Customer T&Cs. If Client utilizes Payment Options offered by Flow, Client agrees that it is subject to the terms and conditions related thereto, located here) (the “Payment Terms”). In the event Client does not utilize Flow’s hosted checkout, Client agrees that (i) it shall implement the payments API in strict compliance with the Documentation, (ii) it shall notify Flow of any changes to its checkout and/or integration and grants Flow the right to a technical audit of its implementation at any time during the Term, and (iii) it shall make it clear to non-Home Country customers that Flow is the seller of the goods. With respect to Export Sales, any amount billed for a given parcel will be equal to the pro-rated portion of a Fully Landed Cost Quote that the product(s) contained within such parcel represent. Client shall utilize the Fraud Prevention Services and Beacon (“FPS”) as part of the Solution for each Customer Order and shall implement the Solution in accordance with the Documentation. So long as (x) the implementation is enabled and properly functioning, and (y) in the event of a chargeback Client promptly provides all information required for Flow to dispute such chargeback, then as between Client and Flow, Flow will be responsible for all chargebacks and associated costs, provided that Client reasonably assists Flow in preventing and mitigating such chargebacks and provides any reasonably requested information. FPS are designed to assist in identifying potentially fraudulent consumer transactions and are offered by Flow through certain fraud prevention vendors as part of the Solution. These fraud prevention vendors may collect, use and analyze data from many sources, including without limitation other merchant client data, to provide FPS to Client and the same or other fraud prevention services to third parties (e.g., other merchant clients). Client agrees that notwithstanding anything to the contrary, Flow may provide data (which may include personal data relating to Customer Orders) to applicable fraud prevention vendors to provide FPS to Client and other third parties in connection with fraud prevent purposes both during and after the Term; Flow and the fraud prevent vendor(s) have no obligation to return or destroy any such FPS related data after the Term. Client’s use of FPS grants both Flow and the applicable fraud prevention vendor(s) the perpetual right to use, reformat, and analyze such FPS related data in connection with any fraud prevent purposes, subject to applicable laws and regulations. Client may request that it use its own fraud provision vendor, and Flow shall approve such use in its sole discretion. Without limiting Client’s obligations pursuant to this Section 1.9, if Client does not implement FPS in accordance with this Section 1.9, Client implements its own (or a third party’s) fraud prevention service, or Client overrides the recommendations by the FPS, then (x) Client shall facilitate the execution of Flow’s integration and data agreement with the third party fraud prevention service, (y) the limitations set forth in Section 5.3 shall not apply in the event of any loss to Flow, and (z) Client, and not Flow, shall be responsible for all chargebacks and other fraud-related issues, which Flow shall be permitted to offset (or charge Client) in accordance with Section 1.13.
1.10 Communications. Unless otherwise agreed, Flow or its agents may communicate with customers, which may include order acknowledgement, order confirmation, shipment confirmation, returns authorization and instructions or other customer service requirements.
1.11 Prohibited Goods. Client will ensure that it does not offer, sell, or ship any products or samples (i) not legally allowed to be sold, including regulated or prohibited drugs, weapons, or other product subject to import/export control licenses or restrictions, (ii) made from any type of endangered wild plant or animal that is in the list of species protected by the Convention on International Trade in Endangered Species, (iii) that fall into one or more of the nine United Nations hazard classes, (iv) that are classified as fish or wildlife as determined by the US. Fish & Wildlife department, department, (or by the equivalent department in the destination country), (v) that are perishable according to any national, regional, provincial, state, or other applicable transportation authority or jurisdiction, (vi) incorrectly labelled or packaged or subject to false or illegal claims, or (vii) that infringe or misappropriate the rights of a third party or are subject to an injunction or court order prohibiting the sale or shipment thereof (collectively, “Prohibited Goods”). Additionally, Client acknowledges that the Solution is meant for physical goods and thus digital goods and/or services are also “Prohibited Goods.” Client shall provide sufficient Product Information in the Console and shall discuss with Flow any products that may fall under a Prohibited Goods category (it being understood that the foregoing shall not relieve Client of its obligations under this Section 1.11). Certain products may be subject to the laws, rules, regulations of the destination country and Client shall be responsible for complying with all such local laws, rules and regulations. Client will reimburse Flow for any costs and expenses it or its affiliates incurs relating to this Section 1.11, including any fines. Flow reserves the right in its sole discretion to immediately suspend or terminate services and the Agreement if it believes in good faith Client has attempted to or has offered, sold, or shipped any Prohibited Goods. Notwithstanding the foregoing, certain goods considered Prohibited Goods may be sold or shipped in connection with the Agreement as and if mutually agreed in an addendum to the Order Form and permitted under applicable laws and regulations. Client is solely responsible for requirements specific to quantity limits, packaging, hazmat and other labeling, documentation and/or detailing and must be able to furnish material safety data sheets for such products upon reasonable request and reimburses Flow for all associated costs and expenses that Flow may incur in order to sell such Prohibited Goods.
1.12 Service and Returns. Client will be responsible for authorizing the return of products from a customer in exchange for a full or partial refund, as determined by Client and in accordance with applicable law (a “Return”). Return credit amounts will be calculated at original currency exchange rate of the customer transaction, and will be net of costs for return shipping and handling and return duty, if applicable, unless Client elects to bear those costs when performing the Returns registration. If Flow provides logistics for the original purchase, Flow will provide the option for Client to provide via the Console return labels and documents for all permitted returns, which the customer will be instructed to print and attach to their Return parcel, and so long as Client initiates the Return in the Console, Flow will process customer refunds, unless otherwise agreed to by both Parties. Client shall not be reimbursed any Fees associated with the initial purchase in the event of a return. Client’s authorization of a Return shall be deemed to include an offer to buy back the product which is the subject of the Return from Flow (as applicable) at the same price and in the same currency of Flow’s initial purchase and reimburse Flow for any taxes, duties, or similar transactional costs relating thereto. By processing the Return, Client will be deemed to have accepted the buy back offer from Flow and Flow shall direct the return delivery of the product in accordance with Client’s instructions. In the case that the applicable customs and border agency(ies) requests information, documents and/or other evidence regarding any previous importation of any goods being returned and compliance with such ask is required for legal reasons or to avoid paying applicable duties on Returns, the Parties will work in good faith, in a timely manner, to provide said evidence to said agencies. Upon request by Client, Flow will process credit requests to customers for an amount in an international currency, and Flow will process such credit, including but not limited to Returns and any amounts which Client elects to bear that would otherwise be due and payable by the customer (“Courtesy Credit”). Any refunded duties and taxes in relation to a Return that were paid at the time of purchase by the customer will be refunded to customers using the means of payment utilized for the initial collection of such duties and taxes. Client will be responsible for designating authorized personnel for the issuance of Courtesy Credits and their permission levels. For purposes of clarification and not of limitation, as between Client and Flow, Client shall be responsible for the funding of all refunds.
1.13 Fees and Reimbursements.
a. Flow will invoice Client the Platform Fees (based on the GMV, as defined below) and the other amounts listed in the Client Order Form in accordance with the Client Order Form, and as otherwise due to Flow under the Agreement (including for optional features selected by Client, together with the amounts on the Client Order Form, the “Fees”)). The Platform Fee shall be unconditionally payable upon the execution of the Client Order Form. The Tier Range is determined on an annual basis, based on twelve consecutive months of sales, commencing on the launch date. For the Initial Term, the Tier Range is determined on an annualized basis. The initial Tier Range shall be applied at launch utilizing anticipated sales based upon the prior sales information provided to Flow (on a like-country basis), and thereafter shall be determined utilizing the prior year’s sales; provided, that (i) the Tier Range shall be confirmed at the end of each such 12 month period and any underpayments in the Platform Fee paid shall be added to the invoice upon calculation, and (ii) Flow shall have the right to re-evaluate the Tier Range on a quarterly basis and charge the Platform Fee based on such new Tier Range, including invoicing for any catch-up payments that may be due. During the Initial Term, Flow’s quarterly evaluation shall include adjustment for industry-based seasonality and any ramp-up period that under-represents the expected annual revenue. For purposes of clarification, in the event Client’s GMV falls below the lowest Tier Range, the Platform Fees shall be based on the lowest Tier Range.
b. Flow will be reimbursed for any actual and reasonable costs Flow or its affiliates incur as a result of Client’s instructions or approvals, including those related to (i) Courtesy Credits, (ii) Returns and Returns registrations and processing, including currency adjustments if outside of the currency rate lock period, (iii) re-shipments or processing undeliverables to a customer, (iv) actual costs incurred as a result of Client electing to override any value that would have otherwise been calculated in a Fully Landed Cost Quote, including shipping prices, (v) foreign exchange variances arising after the rate lock period in the Client Order Form expires, and (vi) if applicable, sales, VAT, or other taxes paid (or not recovered in the case of recoverable VAT and similar taxes) by Flow (or its affiliates) in connection with Flow or its affiliates purchases from Client (together, the “Permitted Deductions”). Twice a month, subject to Section 1.15 and the Payment Terms, Flow will provide Client the amounts due from Flow to Client for products shipped and sold under Customer Orders in connection with the Agreement, less any Fees, Third Party-Fees, Permitted Deductions or reimbursements, expenses, applicable taxes, duties, shipping and fulfillment related expenses. All Third Party Fees shall be invoiced within 90 days from the date Flow receives the invoices from such third parties. If the net amount Client owes Flow under this Agreement exceed such amounts due to Client in relation to Customer Orders, and/or if Client receives payment for Customer Orders directly from the customer (via its own processing), then Client will pay to Flow the amounts due hereunder (including the Platform Fee) pursuant to Flow’s invoice within fourteen (14) days from the issuance of the invoice. Past due amounts shall be subject to a late fee of 1.5% compounded monthly (or the highest rate allowed under applicable law, if lower) until paid. Each party’s payments hereunder shall be (i) in the currency as set forth on the Order Form, and (ii) subject to the applicable party providing the correct banking information and payment instructions (and any payment instruction from Client that results in Flow incurring additional banking charges, Flow shall be permitted to deduct such fees from the amounts due to Client). In the event of any overpayment by Flow to Client, Flow shall be permitted to offset such amounts, or require Client to refund such amounts promptly (but in any event within 7 days of notification by Flow of any overpayment). Prior to the commencement of each Renewal Term, Flow shall provide Client Flow’s then-current Platform Fee rate card and other fees set forth in the Order Form, and the same shall be effective commencing with the commencement of the Renewal Term. Flow will maintain reasonable and appropriate records of amounts charged to and collected from customers under Customer Orders and settled or to be settled to Client in connection with the Agreement. Such records will be made available to Client in accordance with the Documentation solely for Client’s (or its auditors’) review and confirmation for up to one year. Client will promptly identify any known discrepancies and work with Flow to resolve such discrepancy. Any discrepancy not raised within 30 days of receipt of the applicable statement or invoice shall be waived by Client. Flow may commingle funds collected and retain any interest or earnings relating thereto. “GMV” shall mean the total value of the product(s) sold per the Customer Orders. For purposes herein, “Third Party Fees” include fees for optional services selected by Client, the fees set forth in Section 1.5, any returns fees, chargeback fees or other fees from payment processors.
1.14 Taxes and Withholdings. All Platform Fees, Fees, Third Party Fees and any other amounts payable hereunder are exclusive of tax. Client shall be responsible for paying taxes arising from the use of the Solutions and must request any VAT or sales tax invoice if needed for self-reporting, which Flow shall provide reasonably thereafter. If applicable, valid exemption documentation for each taxing jurisdiction shall be provided to Flow prior to invoicing, and Client shall promptly notify Flow if Client’s exemption is revoked or modified. All payments that Client make shall be net of any applicable withholding tax. Unless subject to an exception (which may include a minimum transaction value), sales to consumers are subject to VAT, GST or similar taxes. Client agrees that it shall inform customers that sales are subject to tax in compliance with applicable law. Certain jurisdictions require payment of VAT, GST or similar taxes directly to the government of the applicable jurisdiction(s) and, unless agreed by the parties, Client agrees that (x) Flow (and not Client) as the seller of goods, shall register remit such amounts, (y) Client shall not utilize “duties delivered unpaid” setting(s), and (z) promptly upon request Client shall provide Flow all necessary information or documentation needed for Flow to meet its obligations to such governments, including, but not limited to, evidence of disclosing the tax due and carrier invoices if Client utilizes its own logistics providers. Client hereby agrees that Flow, at Flow’s discretion may self-bill for purposes of invoicing for VAT, GST or similar (non-US) taxes, where applicable, and upon notification, Client shall not create any invoices related to such self-bill transactions. In the event Client is selling inventory located in the United Kingdom or European Union, the terms and conditions located here shall apply. Client will provide reasonable assistance to Flow in connection with such withholding taxes by promptly providing Flow with valid tax receipts, resale certificates, compliant invoices, and any other required documentation (including showing Client’s payment of any withholding taxes); completing appropriate applications that could reduce the amount of withholding tax to be paid; applying for reduced tax rates; and notifying and assisting Flow in any audit or tax proceeding related to transactions hereunder. Client shall comply with all applicable tax laws and regulations, and Client will promptly pay or reimburse Flow for all costs and damages related to any liability incurred by Flow as a result of Client’s non-compliance or delay with its responsibilities herein. Neither party shall be liable for taxes or assessments on the other party’s net income or any similar taxes or assessments. Client’s obligations under this Section 1.14 shall survive termination or expiration of this Agreement.
1.15 Deposit. The initial Deposit Level (as defined below) will be set by Flow on the basis of the information provided by Client regarding its anticipated initial use of the Solution and Client’s creditworthiness when entering into the Order Form. Flow may require Client to transfer the Initial Deposit to Flow before it may start using the Solution for commercial (so non-testing) purposes. Flow shall subsequently keep the Deposit at the Deposit Level by deducting funds from or adding funds each settlement period. If at any point in time the Deposit drops below the then current Deposit level, Flow may require Client to immediately transfer such funds to Flow as is necessary to bring the Deposit in line with the then current Deposit Level. After termination of the Order Form or after processing of Customer Orders is stopped (including the time period for any chargebacks that may occur), the Deposit shall be released by Flow in monthly steps to account for the decrease in Customer Orders outstanding, fraud exposure and/or other risk exposure until the full Deposit is released to the Client or where applicable, in part or in whole applied by Flow to pay for chargebacks, cover fines or fraud claims or pay for unpaid Flow fees due by Client. The Deposit will as standard be fully released to the Client 6 months after processing of Customer Orders for Client has stopped unless specifically identified potential liabilities still exist at that point in time. For purposes hereof, (i) “Deposit Level” shall mean the minimum level of Deposit(s) set for the Client from time to time pursuant to this Agreement, and (ii) “Deposit(s)” shall mean a sum of money held by Flow as may be required of Flow by payment processing providers, and/or as security for Chargebacks, Fines and Fees and Third Party Fees due to Flow.
1.16 Currency Conversions. This Section 1.16 applies solely to Non-US Sales. The Solution will convert currencies for the purpose of pricing product and Customer Orders, collecting payment from Customers, and settling payment obligations with Client in the base currency identified on the Client Order Form. The then current Flow Core currencies (as set forth in the Documentation) will be converted at currency conversion rates of no greater than an average of 3.75% over in-country benchmarks. This rate includes all conversion fees and a currency rate lock of 5 business days (or as otherwise described in the Client Order Form). Other currencies will be converted at the prevailing rates as reasonably determined by Flow.
1.17 Optional Features. Flow provides additional features that Client shall have the option to utilize. Any use of any optional features shall be subject to the terms and conditions located here .
1.18 Technical Errors; Implementation of Solution; Terminology. In the unlikely event and to the extent there is a technical error in the Flow-Enabled Client Website or Solution (including with respect to currency conversions or other calculations) for which Flow is responsible, then such error may be treated as a manifest error and result in the cancellation or amendment of the applicable Customer Order if permitted under applicable laws and regulations, and the Parties will collaborate to address such error in a reasonable and equitable manner, without limiting Flow’s other responsibilities or obligations hereunder. Client will timely inform Flow of any known technical error or that results in unusual transaction volumes. Client will not exploit (or allow others to exploit) known technical errors for its or its affiliates or any third party’s benefit. Notwithstanding anything contained in this Agreement to the contrary, Flow’s obligations set forth herein shall only apply to those portions of the Solutions that Client has selected (on the Order Form, via the APIs it elects to implement, or otherwise in writing, as applicable) and implemented in accordance with this Agreement and the Documentation. For purposes of clarity, in the event the following terms are presented the Console, any billing statement or other communication from Flow, such terms will have the corresponding meaning as follows: Subscription Term means Term, Subscription Fee means Platform Fee, and Client Subscription Order shall mean Client Order or Client Order Form.
2. Client Rights; Restrictions; Responsibilities; Confidentiality.
2.1 Client Rights. Subject to the other provisions of the Agreement, including but not limited to Sections 2.2 through 2.4, Flow will make available to Client for use on a non-exclusive and non-transferable basis during the Term the applicable portions or modules of the Flow Solution (which includes Flow provided or developed interfaces thereto and the Console), and Client shall use the Solution, in accordance with the Documentation and the Agreement. From time to time in accordance with Flow’s generally applicable policies and procedures, Flow may make available and implement upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available at no additional charge to its other clients. Additional features, if utilized by Client, may be subject to additional terms and conditions. Flow will use commercially reasonable efforts to maintain the Solution to comply with the service levels identified in the Documentation, which includes a minimum 99.9% uptime.
2.2 Restrictions. Client will not (and will not permit any other party to) (a) make the Flow Solution available to any third party not authorized by Flow in writing, (b) resell, lease, distribute, transfer or otherwise make available the Flow Solution on a time-sharing or service bureau basis, (c) use the Flow Solution to violate or circumvent any laws or regulations or in a manner that disrupts the operations of Flow or any of its other clients, (d) use the Flow Solution to store or transmit malicious code or offer or distribute contraband or misleading, stolen, counterfeit, or infringing product, (e) decompile, disassemble, or reverse engineer the Flow Solution, in whole or in part; (f) use or reference the Flow Solution to develop a competing service or product, (g) share its login credentials to the Console to any third party, (h) misuse or allow any third party to access any means of communication or collaboration between Flow and Client including the Solution and/or third party tools (e.g., Slack or Google drive), or (i) attempt to circumvent any security features or protections in the Solution or any third party tool.
2.3 Responsibilities. As between the Parties, Client (not Flow) is solely responsible for (a) Client’s website (including accessibility) and order management system, including but not limited to (i) the hosting and processing of data relating thereto, and (ii) all software, pixels, beacons, javascript and all other code located therein or thereon, and (iii) ensuring the security thereof, including but not limited to the receipt of credit card or similar account numbers in compliance with PCI standards, (b) Product Information, including the accuracy thereof, (c) obtaining and documenting consumer and other consents required for Flow (and its third party contractors or processors) to sell the products, perform its obligations including the sale of the products and receive and process information and data as contemplated under the Agreement, (d) the products, including any loss, damage, injury, or death caused by the products, and product returns, repair, replacement, warranty obligations or recalls, (e) Client’s Data and Client’s inputs into the Console, (f) its business practices and use of the Solution, (g) its labelling, packaging, advertisement and marketing (including but not limited to all claims made in the same), and (h) if Client has its own branded and/or issued credit card(s), the use, issuance and utilization are in full compliance with all applicable rules, regulations, requirements and laws (including but not limited to those related to credit card and lending). Client will use commercially reasonable efforts to prevent fraudulent, unauthorized or illegal access to or use of, and loss or damage to, the Flow Solution to the extent within Client’s control, and notify Flow promptly of any such event or circumstance. Client will also use the Flow Solution only in accordance with the Agreement, the Documentation and applicable laws and regulations for its business, and notify Flow promptly of any known or suspected use in violation thereof.
2.4 Solution Ownership. The Flow Solution, Flow's APIs, Documentation, and other Flow proprietary items provided to or accessed by Client under the Agreement (collectively, “Proprietary Items”) are being made available on a strictly confidential and limited use basis in accordance with the Agreement and have great commercial value to Flow. The Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights in or to any Proprietary Items are transferred to Client. Flow reserves all rights not expressly granted by the Agreement. Client shall not utilize any Proprietary Items except as expressly permitted in this Agreement and agrees that it shall not challenge the validity of Flow’s rights to any Proprietary Items. All right, title, and interest in and to the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Flow. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives) will be solely and exclusively owned by Flow. Client hereby assigns to Flow any rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Client or any of its employees or representatives provide, propose, create, conceive, author or develop relating to the Agreement or their use of the Solution. Client will execute and deliver (or cause its employees and other representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Flow’s rights described above and the intent of this Section.
2.5 Confidentiality. All Confidential Information (defined below) of a Party (or its vendors or service providers) (“Disclosing Party”) in the possession of the other (“Receiving Party”) shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under the Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees, representatives, agents, or contractors or processors whose responsibilities require such use or access. The Receiving Party shall require such employees, representatives, agents, affiliates, contractors or processors to abide by the terms of this Section or substantially similar requirements, as customary and applicable to the nature of such relationship. Either Party may disclose the Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. “Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with the Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information of Flow shall include Flow’s Proprietary Items, this Agreement, and the pricing charged by Flow to Client.
2.6 Third Party Services. Flow may offer Client the ability to utilize the services of third-party vendors, which services may include communications services, data sharing, collaboration tools, and other software, information, data or other services (“Third Party Services”). Certain of these vendors require users who utilize such features to agree to their own terms and conditions. Unless otherwise expressly stated, utilizing those Third Party Services are outside the terms of this Agreement and are between Client and such vendor. Use of the Solution shall not require the use of these Third Party Services.
3. Client Data.
3.1 Ownership and Rights. As between the Parties, Client retains all of its right, title and interest in and to all of its data contained on, or related to (to the extent shared with Flow), its website and/or in the Solution, including Product Information (“Client Data”). Client hereby grants Flow a royalty-free license to use, process and store Client Data to perform its obligations and exercise its rights relating to the Agreement and Customer Orders. This includes the right for Flow to engage affiliates and third parties, including fraud, payment, logistics, translation and data processors and telecommunication, networking, and cloud providers (regardless of their location). Additionally, Flow may aggregate and anonymize any data or information relating to Client Data or the use of the Solution, including without limitation transactional and other analytics, to monitor, improve, or expand the Solution or Flow’s commercial offerings notwithstanding anything to the contrary. As between the Parties, any such aggregated and anonymized data, information, or analytics provided, processed, or developed by Flow is owned by Flow. Aggregated and anonymized data, information, and analytics will not include personally identifiable data of a customer or reference Client.
3.2 Safeguards. Each Party will maintain reasonable and appropriate data safeguards and procedures designed to prevent the unauthorized use or disclosure of Client Data in its possession or control, including applicable Payment Card Industry data security standards (“Data Safeguards”). Each Party will use commercially reasonable efforts to notify the other Party of any known security breach, and/or data integrity compromise, promptly after learning of said breach or compromise which could impact the other Party. Client Data may be stored by Flow on media or hardware containing other client data both during and after the Term, provided such media and hardware are subject to the Data Safeguards. A Party may provide copies or access to Client Data as required by a court order or regulatory authority. The Parties acknowledge and agree that as reasonably necessary in connection with the Solution certain names, delivery addresses, phone numbers, emails addresses and other information may be provided to reputable third parties such as shipping and logistics companies (e.g., DHL and other entities shipping product), reputable financial institutions, or governmental authorities (e.g., in connection with import/export forms), as part of the handling and processing of Customer Orders and payments, Client hereby expressly consents to the foregoing, and Flow will not be responsible for any violation, breach or liability arising from their acts or omissions outside of Flow’s reasonable control notwithstanding anything to the contrary.
3.3 Privacy Policies. Client shall ensure a link to its privacy policy is prominently displayed on its website including the checkout page. Client shall ensure its privacy policy is in compliance with all applicable laws. Customer related data provided to Flow will be subject to the Data Safeguards and Flow’s then current privacy policies, currently available at https://link.flow.io/policies/privacy and may be processed or stored in the U.S. or other countries. Client will ensure that Customers will be made aware of and consent to Flow’s privacy policies. Client shall update its privacy policy prior to launching the Solution and shall specifically list Flow as a third party vendor with whom Client shares customer data and shall permit all uses necessary for Flow to perform the Service, and shall include a link to Flow’s privacy policy. In the event that Client provides for customer online accounts and shares customer information with Flow for the Solution (e.g., pre-populated checkout), Client shall provide its customers the instructions necessary to update account information.
3.4 Customer Personal Data. In accordance with applicable laws and regulations, Client shall provide (directly or indirectly), gather and collect customer data in relation to the Customer Orders and shall provide to Flow, all such data required for Flow to perform its responsibilities and exercise its rights under this Agreement. Certain customer data in certain geographies may be subject to local laws and regulations in such geography and the sharing of such data to a third party or the transfer of such data outside of that country, may require consents from the applicable customer and/or may be subject to additional requirements. Client will seek and obtain any required customer consents in connection with Flow-Enabled Client Website and Solution as instructed by Flow and/or required by laws and regulations. Client further acknowledges that local laws restrict the use of personal information (including emails) for marketing purposes and Client agrees that it shall comply with, and ensure that all of its agencies, contractors and employees, are knowledgeable about and comply with, all local laws. This includes opt-ins, list maintenance, deletion requests, and the like. The Parties agree and acknowledge that this customer data may include certain information which constitutes personal data for the purposes of the EU General Data Protection Regulation 2016/679 (“EU Personal Data” and the “GDPR”, respectively). If Client adds countries from the EU for the sale of its products in the console, then and solely with respect such EU Personal Data, the Parties will be bound by, and will comply with their respective obligations set forth in, Flow’s Merchant Data Processing Addendum available here, which is subject to and incorporated into this Agreement as and if applicable. Client acknowledges and agrees that Flow shall have the right (but not the obligation) to purge all customer data on a rolling basis after 24 months (or such other period as Flow may reasonably determine using its good faith judgment or as may be required by applicable law). Notwithstanding anything to the contrary, Flow may delete or purge sensitive credit card and other similar data for risk mitigation or security purposes in a manner that meets or exceeds payment card industry standards and rules.
4. TERM AND TERMINATION
4.1 Term. The “Term” means the duration of Client’s right to receive, access, and use the Solution, which commences immediately upon the execution of the Client Order Form and terminates pursuant to the terms herein. The Term includes the Initial Term, each Renewal Term and the period from execution to the Initial Term (if any). The Initial Term is the for the period set forth on the Client Order Form, commencing from upon the start of the Platform Fees. In the event that such duration is not specified on the applicable Client Order Form, the Initial Term will commence upon execution of the Client Order Form and will continue for twenty-four (24) months thereafter. The Term will automatically renew for a term that is equal to the Initial Term, unless one Party provides the other Party at least ninety (90) days written notice of its intent to not renew the Term (each a “Renewal Term”). Platform Fees in Client Order Forms will apply each month throughout the entire Term, and are subject to increase for each Renewal Term, unless otherwise provide in the Client Order Form.
4.2 Termination. Either Party may terminate the Agreement (including the Client Order Form(s)) immediately on giving notice in writing to the other Party if the other Party: (a) commits a material breach and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or (b) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations, or (v) is generally unable to, or does not pay, its liabilities by the due dates. Client Order Form(s) between the Parties will be terminated if the Agreement is terminated or as otherwise provided in the applicable Client Order Form. The Agreement will be deemed terminated if there are no active Customer Orders or all Terms have expired or terminated.
4.3 Customer Orders. If the Agreement is terminated or expired for any reason, Flow may continue processing in-process and existing Customer Orders at its discretion and the Agreement will survive with respect to such Customer Orders or terminate applicable Customer Orders.
4.4 Effect of Termination or Expiration. Following any termination or expiration, Client will: (a) immediately discontinue all access and use of all Proprietary Items, (b) promptly return to Flow (or delete) any copies of the Proprietary Items then in Client’s possession or control; (c) cease identifying Flow as its e-commerce provider, and (d) give written notice to Flow certifying the foregoing. Each Party will remain liable for all payments due to the other with respect to the period ending on the date of termination or expiration. For any termination other than a termination for good cause by Client in accordance with Section 4.2, the balance of all remaining Fees relating to the then current Term will be due and payable immediately plus any other amounts owed. The provisions of the Agreement that are required or intended to survive (including payment, indemnity, limitation of liability, intellectual property, confidentiality etc.) to give each Party the rights and benefits reasonably contemplated will survive any termination or expiration.
5. RISK ALLOCATION; WARRANTIES; INDEMNITY AND LIMITATIONS OF LIABILITY; INSURANCE
5.1 Representations and Warranties. Each Party represents and warrants: (a) to the best of its knowledge, use of the Solution in the manner contemplated by the Agreement will not knowingly breach any agreement applicable to it, (b) it will comply with all applicable laws relating to its business and operations, and (c) it will not knowingly provide to the other Party any software, code or other such information that contain code or programming routines that contain destructive properties or that are intended to damage any system or data of the other Party. Client further represents and warrants that (i) it has the right and authority to provide and grant Flow the right to use, process, and store Client Data and customer data in accordance with this Agreement, and (ii) the Product Information and the data relating to Client sales provided to Flow are and were complete, true and accurate. Client further represents and warrants that (x) it has the right to sell and transfer title to the products identified in Customer Orders and the Product Information to Flow so that Flow may sell and transfer the same to customers, and (y) no Product contains any good(s) from any country, region or person in violation of any laws, rules, regulations or sanctions. Client will honor and pass-through to Flow all warranties relating to its products so Flow may provide the same to customers in connection with Customer Orders. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT.
5.2 Indemnity. Each Party (“Indemnifying Party”) will indemnify, defend, and hold the other Party, its affiliates, and each of their respective officers, directors, agents, independent contractors, and employees (collectively, the “Indemnified Parties”) harmless from and against any and all damages, losses, or expenses (including without limitation reasonable attorneys’ fees incurred) arising out of any claim by a third party (including without limitation, customers, payment processors, or governmental authorities) relating to (a) the Indemnifying Party’s breach of any of its representations, warranties, or obligations in the Agreement, (b) the Indemnifying Party’s breach of privacy legislation related to its collection, transmission and use of personal data, unless arising from a breach of the Agreement by the Indemnified Party, (c) for Export Sales, incorrect or incomplete customs data electronically submitted to government agencies or customs authorities regarding products being fulfilled in connection with the Agreement, if the customs data communicated by the Indemnifying Party was incorrect or incomplete through no fault of the Indemnified Party, (d) solely with respect to Client as the Indemnifying Party, (i) and its inputs into the Console and means of transacting resulting therefrom, (ii) the products and Product Information, including product liability or torts, product warranties, advertisements, recalls, labelling requirements, mis-identified or mis-labelled products in shipments, packaging and shipping of the Products, Prohibited Goods, or other similar product liability matters, except to the extent solely arising from Flow’s gross negligence or willful misconduct, (iii) its website and any software, pixels, beacons, javascript and any other code on its website or provided to Flow for hosted pages, and (iv) a breach of any Third Party Services terms or conditions, and (e) any of a party's proprietary intellectual property contained in the Services infringe any intellectual property right of such third party, including any copyrights, patent rights, trademark rights, trade secret rights, except that the Indemnifying Party will have no liability or obligation with respect to any such intellectual property claim if such intellectual property claim is caused in whole or in part by (x) modification of the items provided by the Indemnifying Party by any party other than Indemnifying Party without Indemnifying Party’s express consent or (y) the combination, operation, or use of the such items provided by the Indemnifying Party with other product(s), data or services where such items provided by the Indemnifying Party would not by itself be infringing. The Indemnified Parties must provide: (i) prompt written notice of such claim to the Indemnifying Party after becoming aware thereof (provided, that a failure to provide prompt written notice shall only nullify the indemnification to the extent the Indemnifying Party is prejudiced by the delay); (ii) authority to the Indemnifying Party to control and direct the defense and/or settlement of such claim; and (iii) such information and assistance as reasonably requested by the Indemnifying Party in connection with such defense and/or settlement. In any claim for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnifying Party may participate in such defense at its own expense by counsel of its choice. If the Indemnifying Party does not promptly assume its indemnification obligations, the Indemnified Party may assume such defense and recover all damages, costs and expenses relating thereto.
5.3 LIMITATIONS OF LIABILITY. EXCEPT THE UNAUTHORIZED USE OR DISCLOSURE OF FLOW PROPRIETARY ITEMS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, REVENUE, PROFITS, SAVINGS, DATA OR WORK STOPPAGE) ARISING IN CONNECTION WITH THE AGREEMENT, AN ORDER, ANY CUSTOMER ORDER, THE SOLUTION, OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INFRINGEMENT CLAIMS RELATING TO THE SOLUTION SUBJECT TO INDEMNIFICATION BY FLOW, IN NO EVENT OR CIRCUMSTANCE WILL FLOW’S AGGREGATE LIABILITY FROM THE AGREEMENT, ORDER(S), CUSTOMER ORDERS OR THE SOLUTION OR DOCUMENTATION EXCEED THE AMOUNT OF THE FEES SET FORTH IN THE ORDER FORM COLLECTED BY FLOW DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. FOR INFRINGEMENT CLAIMS RELATING TO THE SOLUTION SUBJECT TO INDEMNIFICATION BY FLOW, IN NO EVENT OR CIRCUMSTANCE WILL FLOW’S AGGREGATE LIABILITY EXCEED THREE TIMES THE PLATFORM FEES COLLECTED BY FLOW DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. Each Party shall take all reasonable steps to mitigate the loss and damage it incurs in relation to any claim or action (whether for negligence, breach of contract, misrepresentation, under any indemnity or otherwise) which it brings against the other. The Parties agree that the limitations and exclusions set out in this Section are reasonable having regard to all the relevant circumstances, and the levels of risk associated with each Party’s obligations under the Agreement.
5.4 Each party shall maintain appropriate types and levels of insurance to cover its business risk and its obligations hereunder, including but not limited to its indemnification obligations. For purposes of clarification, such insurance shall include cyber insurance.
6. MISCELLANEOUS
6.1 Entire Agreement. The Agreement sets forth the entire business understanding between Flow and Client with respect to the subject matter of the Agreement, and supersedes and replaces all previous discussions, negotiations, and agreements, whether oral or written.
6.2 Nature of Relationship. The relationship between Flow and Client will be strictly that of independent contractors and neither Flow nor Client will be, or be deemed to be agents, parties to a joint venture, or partners of one another.
6.3 Delegation and Outsourcing. Flow acknowledges that Client utilizes the services of representatives, agents and contractors. Client shall be fully responsible for all actions and inactions of each of its representatives, agents and contractors that may be in violation of the Agreement. Client acknowledges and agrees that Flow may perform certain activities and delegate or exercise certain rights or responsibilities, directly or indirectly, through its affiliates and/or third-party contractors and processors. Flow will remain liable for its performance under the Agreement notwithstanding the delegation. Flow will also be responsible for its affiliates acts and omissions relating to, and in accordance with, the Agreement.
6.4 Waiver. No waiver of any breach of any provision of the Agreement by either Party or the failure of either Party to insist on the exact performance of any provision of the Agreement will constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver will be effective unless made in writing by the party that has the right to enforce such provision.
6.5 Severability. In the event that any provision of the Agreement conflicts with governing law or if any provision is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
6.6 Assignment. The Agreement will bind, benefit and be enforceable by and against Flow and Client and, to the extent permitted hereby, their respective successors and assigns. Except as otherwise provided below, neither Party may assign any of its rights under the Agreement, and any attempt at such assignment will be void without the other Party’s prior written consent, which consent will not be unreasonably withheld. Flow may (i) assign any rights or obligations to a corporate affiliate, and (ii) assign the Agreement in connection with any merger, reorganization, acquisition or sale of all or substantially all of its asset or stock without Client’s consent. If Client is subject to a merger, reorganization, acquisition or sale of all or substantially all of its asset or stock, Flow will consent to such assignment if (a) the proposed assignee’s use of the Solution does not materially change the usage of the Solution prior to such assignment or if such assignee agrees to pay a reasonable fee for any increased usage based on Flow’s then current pricing, (b) Client is in compliance with the Agreement, and (c) such proposed assignee’s credit rating is equal to or better than Client’s.
6.7 Emails and Electronic Signature. The Agreement may be executed by exchanging emails that contain scanned copies of the Client Order Form and/or electronic signatures or approvals. For the sake of clarity, the Agreement will not be deemed executed until each Party has sent to the other Party a scanned copy of a Client Order Form containing its signature or electronically executed utilizing a recognized third party solution, such as DocuSign or HelloSign.
6.8 Force Majeure. Neither Flow nor Client will be liable, or deemed to be in default of the Agreement, for any delay or failure in performance or non-performance of any aspect of the Agreement (excluding payment obligations between the Parties) or any interruption, resulting directly or indirectly from acts outside of such party’s control, including but not limited to acts of God, acts of public enemy, war whether declared or undeclared, terrorism, computer hacking incident or cyberattack, accidents, fires, electrical failures, equipment failures or unavailability, internet, telecommunication, shipping or carrier delays or failures, explosions, earthquakes, the elements, strikes, lock-outs, labor disputes, governmental orders or regulations, shortages of labor or transportation or any other cause beyond the reasonable control of Flow or Client (or their respective third party vendors essential to performance of the Agreement), as the case may be, so long as the Party failing to perform as a result of any such cause beyond its reasonable control, (a) notifies the other Party in writing promptly after it becomes aware of the fact and nature of the delay or failure, and (b) to the extent reasonably feasible establishes and implements a work-around plan for the delay or failure which minimizes disruptions to the other Party resulting from the delay or failure to perform. Flow may exclude, prohibit, or suspend certain products, Customer Orders, or payments from being processed if Flow has a good faith concern, in its sole discretion, regarding the legality, magnitude, accuracy, safety, liability, or risks related thereto of any kind or nature, including product, consumer, geopolitical or macro-economic issues. Flow will use reasonable efforts to inform Client of any such event or circumstance and collaborate with Client to mitigate such risk or issue, if practical and within its control.
6.9 Governing Law. The laws of New York, excluding its conflicts-of-law rules, will govern the Agreement. The Parties hereby agree and consent to the exclusive jurisdiction and venue of the state and/or federal courts situated in the State of New York in any action arising out of or relating to the Agreement and hereby submit to the personal jurisdiction of such courts.
6.10 Non-Solicitation. Client will not directly or indirectly solicit for employment, offer to employ or contract with, or arrange the employment or other retention of any of Flow’s employees or contractors who are directly involved under the Agreement during the Term and for twelve (12) months thereafter. This Section will not apply with respects to individuals that respond to general solicitations (e.g., advertisements or internet job postings) which were not directly targeting such resources.
6.11 Use of Client’s Name. Client authorizes Flow to use its name and trademark on Flow’s website, in any routine list of clients or vendors and/or as a reference, and agrees to reasonably consider participating in a case study or whitepaper requested by Flow.
6.12 Further Assurance; Addendums. Each Party, subsequent to the execution and delivery of the Agreement and without any additional consideration, will execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate the purposes of the Agreement. Client further acknowledges and agrees that certain (i) updates, additional features or functionality, or enhancements to the Solution, (ii) Payment Options, (iii) Logistics Providers, (iv) International Geographies, including laws or regulations relating thereto, (v) changes in laws or regulations, or (vi) additional third-party providers, may require supplemental terms and conditions specific thereto. Such supplemental terms and conditions shall be located at https://link.flow.io/terms/client (or subsequent URL) and in the console. If any such supplemental terms and conditions for any feature or functionality that is not optional would have a material adverse impact on Client and the Parties are unable to address such event or circumstances to their mutual satisfaction after 30 days of discussions, then Client may terminate this Agreement upon 30 days’ notice and without any further liability for the fees due to Flow set forth in the Order Form.
6.13. Notices. All notices, consents and other communications under or regarding the Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
