Terms of Service
In the Merchant Agreement, and in the Terms & Conditions, the following definitions shall apply:
|3D Secure||The “Three-Domain Secure” protocol developed by Visa International Inc. (Visa) branded as “Verified by Visa” and “MasterCard SecureCode” developed by MasterCard International Inc. (MasterCard), including successive versions thereof and any amendments thereto|
|Account Balance/Verification||The account holder’s Bank account balance or available credit which is verified during authorization of a product or service purchase|
|Account Holder||Any person who is authorised to use a Payment Method issued or granted to them.|
|Acquirer||A financial institution that is authorised by a Scheme Owner to enable the use of a Payment Method by accepting Transactions from merchants on behalf of the Scheme Owners, routing these to the Scheme Owners or Issuing Banks and collecting and settling the resulting funds to the Merchant.|
|Acquiring Via Flo||Use of a Payment Method via Flo where Flo contracts with the relevant third party Acquirer on behalf of the Merchant to enable the use by Merchant of such Payment Method in order to charge the Account Holder or Customer.|
|Flo||Zoda Pay, Inc dba “Flo”, a Delaware Company|
|API||Application Programming Interface consisting of a direct secured internet connection between the Merchant’s site and the Flo environment via which Payment Details are sent.|
|Authorization||The process whereby an Account Holder (or Merchant on Account Holder’s behalf) requests permission for a Payment Method to be used for a particular purchase of Merchant’s Service or Product. “Authorized” shall have the corresponding meaning.|
|Authorization Hold||An amount of available customer funds or credit specified by the Merchant during a transaction that is held as pending and blocked from other transaction use, for an agreed upon time period and payment schedule, on a Customer’s Credit Card|
The bank account held by an Eligible Merchant with Flo on which funds owed by Flo’s acquirer to the Eligible Merchant (credit) or by the Eligible Merchant to Flo (debit) are administered and on which Flo will Settle the funds for Transactions validly processed for the Merchant.
Bank Account can also refer to a Checking or Savings account held by the customer that they have selected to use a Payment Method.
|Business Day||A day other than a Saturday or Sunday on which banks are open for business.|
|Capture Period||The period in which an Authorised Transaction can be Captured. The Capture Period varies per Payment Method and type of transaction.|
|Capturing||The confirmation by (or on behalf of) the Merchant to the Acquirer that a Transaction for which Merchant received an Authorization is to be executed and the Account of the Account Holder is to be actually charged for the Transaction. “Captured” shall have the corresponding meaning.|
|Card||Any form of Credit Card or Debit Card, which may be used by a Cardholder or Customer to carry out a Transaction on the Cardholder/Customer’s account.|
|Card Association/ Card Scheme||Visa, MasterCard, American Express, Discover or comparable bodies which provide Cards.|
|Card Verification Method / CVM Code / CVV||The 3- or 4-digit numeric code that is printed on a Card. This code is known as: for Visa: CVV2; for MasterCard: CVC2; for American Express and Discover: CID. Collectively referred to as CVM Code.|
|Cardholder||Any person who is issued a Card and possesses and uses a Card and, where required on the Card, whose signature appears on the Card as an authorised user.|
|Chargeback||A Transaction which is successfully charged back on request of the Account Holder or the Issuer pursuant to the relevant Scheme Rules resulting in a cancellation of a Transaction in respect of which a Merchant has been paid or was due to be paid. If a Chargeback occurs for a Transaction in respect of which Merchant already received Settlement of the related funds, this results in the unconditional obligation for the Merchant to immediately enable Flo to return such funds to the Scheme Owner or Acquirer. The funds will then be returned to the Customer/Cardholder|
|Chargeback Fee||The fee charged by Flo to the Merchant in respect of a Chargeback.|
|CNP or Card Not Present Transaction||A Transaction by a Cardholder where the Cardholder is not physically present at the point of sale at the time of the Transaction. CNP shall comprise Mail Order/Telephone Order (MO/TO) and E-Commerce Transactions|
|Credit Card||Any form of credit card, which permits or enables Transactions on a Cardholder’s account.|
|Customer||A Customer is an Account Holder that can be a Merchant or a Buyer of a Merchant’s product or service.|
The agreement between Flo and the Account holder for the provision of the Services to the account holder, including processing data, and charging specified payment methods in accordance with the Terms and Conditions all Schedules and other documents appended thereto by reference.
These agreements are separate from the agreement between the Merchant and the end Customer as the Account Holder. Flo will follow Merchant’s Instructions for charging payment methods relating to the sale of products and services by the Merchant to the Account Holder.
|Customer Interface||The secured interface on Flo’s website where Merchants and Customers can review and operate on their Transactions, profile and settings and find usage instructions, information regarding the Services and the Payment Methods.|
|Debit Card||Any form of debit card, which permits or enables Transactions on a Cardholder’s account.|
|Delivery Date||The date on which the complete Merchant Product and/or Merchant Service is delivered to the Account Holder who paid for the corresponding Transaction.|
|Reserve Level||The minimum level of Funds set for the Merchant from time to time pursuant to these Terms and Conditions.|
|Reserve||A sum of money, withheld by Flo from funds to be Settled to the Merchant and/or separately deposited with Flo by the Merchant on Flo’s request as security for Chargebacks, Fines and fees due to Flo.|
|E-commerce Transactions||A Transaction by an Account Holder where said Account Holder is not physically present at the point of sale at the time of the Transaction, and the Payment Details are presented to the Merchant or Flo by the Account Holder by means of secure Internet communications.|
A Merchant which is deemed eligible to hold a Bank Account by Flo (in its discretion) and, as such, is provided a Bank Account with flo’s 3rd party contracted acquirers for the purpose of processing.
An Eligible Merchant in some situations may also use the Flo software and services without obtaining a new bank account for the purpose of processing
|Electronic Funds Transfer Agreement||The agreement every Customer and Account Holder agrees to at the time of Purchase in order for Direct bank transfers to be provided and used as the corresponding payment method on a transaction.|
Any fine, uplifted service fee or other additional payment as imposed by the Scheme Owners and/or Acquirers to the Merchant and/or Flo, as a result of situations such as, but not limited to, breach of Scheme Rules by the Merchant or caused by the Merchant, excessive fraud levels or excessive Chargeback levels.
A Fine also may constitute a charge to a customer for lack of funds in an account, misuse of services or for any other potential reason relating to agreements between Account Holders/Customers and their respective financial institution issuers.
|Hosted Payment Page||The Payment Interface where an Account Holder is redirected from the Merchant shopping site to a payment site hosted by Flo, on which the Payment Details are entered by the Account Holder.|
|Interchange Fee(s)||The fee(s) set and charged by the Card Schemes (and in part passed on to the relevant Acquirer) for processing and settlement of a Card Transaction. This fee shall include the assessment fees and any other scheme fees charged by the Card Scheme for the particular Transaction.|
|Issuer / Issuing Bank||An institution that issues Payment Methods to the Account Holder and whose name appears on the Card or bank account statement as the Issuer or who enters into a contractual relationship with the Account Holder with respect to the Payment Method.|
|Merchant||The company entering into a Merchant Agreement with Flo and for which Flo processes Transactions or Transaction Data related to the Merchant Service and Merchant Products.|
|Merchant Agreement||The agreement between Flo and the Merchant for the provision of the Services to Merchant, including the Terms and Conditions and all Schedules and other documents appended thereto by reference.|
|Merchant Product / Merchant Service||A product/service which the Merchant is selling and for which Transactions are processed.|
|MO/TO or Mail Order/Telephone Order Transaction||A Transaction by an Account Holder where the Account Holder is not physically present at the point of sale at the time of the Transaction, and the Payment Details are presented to the Merchant by the Account Holder by means of mail (not email), fax or telephone.|
|MSC / Merchant Service Charges||The agreed upon schedule of fees that Flo charges per Transaction for the use of the relevant Payment Method for that Transaction. This can be a percentage of the Transaction amount, or a fixed fee, or a combination of a percentage and a fixed fee. The Merchant Service Charge may also constitute agreed upon monthly, licensing and other fees.|
|Order Currency||The Currency in which the Transaction is originally offered to the Account Holder.|
|Payment Currency||The Currency in which a Transaction is processed.|
|Payment Details||The information which makes up a Transaction message which needs to be submitted to the Payment Interface to enable the processing of the Transaction by Flo and to perform fraud checks, including details regarding the Card, the Bank Account, the Account Holder, relevant authentication details and the payment amount.|
|Payment Instruction||Electronic instruction sent by an Eligible Merchant or Customer (or by an authorised third party acting on behalf of Eligible Merchant) to Flo via the Customer Area to transfer funds from the Customer Bank Account to another bank account.|
|Payment Interface||An electronic connection method provided by Flo to the Merchant and Customer for providing the Payment Details for individual Transactions allowing Flo to provide its Products/Services with respect thereto.|
|Payment Method||A method of enabling payments by Account Holders to merchants such as Cards, online and offline bank to bank transfers and direct debits offered by the Scheme Owners.|
|PCI DSS||The security standards for transmitting, processing or storing card data / payment details, known under the name PCI DSS, as required to be observed under the Scheme Rules of the Card Schemes. For More info: (www.pcisecuritystandards.org)|
|POS / Point of Sale Transaction||Transaction submitted for processing by a Cardholder via a POS Terminal where the Cardholder is physically present at the location of the POS Terminal|
|POS Terminal||Device designed to submit POS Transactions to Flo by reading the relevant data on the Card, registering the approval of the Cardholder for the Transaction, encrypting the Payment Details and sending them via the public internet to Flo for processing.|
|Processing Fee||The fees that Flo charges for each Transaction submitted for processing in the Payment Interface, corresponding to the Transaction amount and the type of Payment Method used.|
|Purchase||A completed transaction and successfully captured payment from an Account Holder to a Merchant.|
|Refund||A (partial or full) reversal of a particular Transaction, whereby the funds are reimbursed to the Account Holder on the initiative or request of the Merchant or Customer.|
|RFI or Request for Information||A request from Scheme Owner or Acquirer received by Flo for more information about a Transaction or potential, made available by the merchant to Flo in electronic form.|
|Scheme Owner||The party offering and/or regulating the relevant Payment Method.|
|Scheme Rule||The collective set of bylaws, rules, regulations, operating regulations, procedures and/or waivers issued by the Scheme Owners as may be amended or supplemented over time and with which Merchant must comply when using the relevant Payment Method.|
|Service(s)||The collective set of payment processing, payment routing, fraud control, reconciliation, reporting, Settlement and/or other services as provided by Flo to the Merchant and Customer to enable the Merchant and Customer to use Payment Methods to process Transactions, as well as providing a Bank Account to Eligible Merchants and any other services offered by Flo to a Merchant under the Merchant Agreement.|
|Settlement||The payment of amounts by Flo to the Merchant, owed with respect to settlements received by Acquirers or Scheme Owners for Transactions validly processed for the Merchant, minus the amounts for Refund and Chargebacks, Transaction Fees and the amounts needed to keep the Reserve on the then current Reserve Level. “Settle” and “Settled” shall have the corresponding meanings|
|Software||The collective set of programs and data developed and/or operated by Flo as needed to provide the Service to its merchants and customers, including the Payment Interfaces|
|Terms and Conditions||The current version of these terms and conditions of Flo|
|Transaction||An Authorization request by an Account Holder or customer for a payment from the Account Holder to the Merchant submitted by the Merchant to Flo. When the transaction is completed it is called a Purchase.|
|Transaction Fee||The sum of Merchant Service Charge (MSC) and Processing Fees relating to transactions|
|Recurring Transaction||A purchase that enables multiple transactions that can vary by amounts and schedule. The amount and schedule is contractually agreed to by the merchant and the customer at the point of purchase and is communicated to Flo electronically via the Payment Instructions.|
|Uncompleted Order Amount||The total amount of Authorised, Captured and/or Settled Transactions for the Merchant on any point in time, for which the Merchant Products and/or Merchant Services have not been delivered to the relevant Account Holders at that time and/or for which the return rights or order cancellation rights of the Account Holder under the terms and conditions of the Merchant and/or applicable law have not yet lapsed.|
|Working Hours||From 09:00 PST to 18:00 PST on Business Days in California or such other hours as may be published by Flo on the website.|
2. Description of the Services
2.1 Payment processing
The Flo Services deliver real time or near real time Transaction processing and Data Processing capability over the Internet with a high availability service level applying to the Payment Interface. The Flo Services include interfaces to help with reconciliation and transaction services for Transactions Acquired and Settled via Flo contracted 3rd Party Acquirers, to help match processed Transactions with settlements received from the relevant Acquirers and Scheme Owners. All Card Not Present Transactions shall be submitted to Flo for processing through the Hosted Payment Page or API, unless otherwise agreed in the Merchant Agreement. All POS Transactions shall be submitted to Flo to the API by means of a Flo approved POS Terminal.
The relevant Acquirer or Scheme Owner settles related funds directly to Merchant. The Merchant is obliged to ensure all data that Flo requests to be provided for a Transaction, including those needed for fraud checks, are provided with each Transaction submitted for processing by Flo. If the Merchant fails to provide the requested data with each Transaction, Flo has the right to immediately suspend Transaction processing. Flo may revise the required data needed to process Transactions from time to time by giving notice to the Merchant via the Customer Area as needed to be able to process such Transaction and conduct fraud checks.
2.2 Merchant registration and KYC check
In order to enable Flo to comply with anti-terrorism, financial services and other applicable laws and regulations and KYC (‘Know Your Customer’) requirements imposed by the Scheme Owners and Acquirers, Merchant must when entering into the Merchant Agreement and thereafter on Flo’s first request, provide information about itself, its activities and its shareholders (the “Registration Information”). Merchant warrants unconditionally that all Registration Information it provides is correct and up to date.
Merchant will provide Flo with at least three Business Days prior written notice of any change of the Registration Information. Merchant will on first request from Flo provide such additional information and supporting documentation regarding its activities and identity and that of its shareholders as Flo may reasonably determine to need to ensure compliance with applicable laws and regulations and Scheme Owner and Acquirer KYC requirements. Merchant agrees that Flo or Third Party Acquirer may run further checks on Merchant’s identity, creditworthiness and background by contacting and consulting relevant registries and governmental authorities.
Flo’s acceptance of Merchant as user of the Services and the relevant Payment Methods is strictly personal and limited to the use by Merchant of the Services for payment of Merchant’s own products and services. Merchant may not use the Services to facilitate the payment for products or services sold by third parties and therefore may not resell the Services to third parties.
Support for each Payment Method is subject to acceptance by the relevant Scheme Owner or Acquirer used by the Scheme Owner, which such Acquirer or Scheme Owner may withhold or withdraw in its discretion at any time. Some Scheme Owners or Acquirers may require the Merchant to enter into a direct agreement with the Acquirer or Scheme Owner before the Merchant may use the relevant Payment Scheme. Merchant hereby authorizes Flo to submit Registration Information received from Merchant to the relevant Scheme Owners and Acquirers to obtain permission for providing access to their Payment Methods for Merchant.
2.3 Payment method and currency support
Flo will support the Payment Methods and Currencies as specified in the Merchant Agreement, as long as Flo continues to support these in its general product portfolio. In case of: (i) materially different terms imposed by the relevant Scheme Owner or Acquirer; (ii) material malperformance by the relevant Scheme Owner or Acquirer (or reasonable ground for Flo to expect such malperformance); (iii) reasonable grounds to doubt the credit worthiness of the Scheme Owner or Acquirer; or (iv) sharply increased costs for Flo to offer the Payment Method due to new circumstances; then Flo may decide in its reasonable discretion to stop supporting a particular Payment Method or make future support conditional on the acceptance by Merchant of additional conditions or fees. Flo will give at least 1 month written notice of any discontinued or changed support of any Payment Method, unless this is not reasonably possible given the cause for this decision. Flo will use its reasonable endeavours to offer an alternative for any discontinued Payment Method to the Merchant.
Merchant understands that Acquirers and/or Scheme Owners might cancel certain Payment Methods, change the characteristics thereof or change the acceptance criteria under which they make them available. As a consequence, Flo may be forced to block Merchant from further use of a Payment Method or impose additional restrictions or conditions on its continued use as a consequence of such decisions of the relevant Acquirer and/or Scheme Owner. Where possible Flo will use its reasonable efforts to give Merchant prior notice of any such change or cancellation with respect to the Payment Methods agreed to be offered under the Merchant Agreement. Flo will on request of Merchant in such case reasonably assist Merchant in finding alternative Payment Methods available to Merchant or manners in which to (re-)gain the approval of the relevant Scheme Owner or Acquirer.
2.4 Cardholder authentication methods
For all Transactions processed through the Hosted Payment Pages and some transactions through the API, 3D Secure authentication may be offered as an option to use by the Merchant where supported by the Acquirer and Payment Method used in combination with the then current Software of Flo.
2.5 Account holder payment currency
Flo will have the right to offer the Account Holder the option to use a different Payment Currency than the Order Currency, in which case the Merchant will still always receive Settlement of the Transaction amount in the Order Currency (except in case another currency is agreed in the Merchant Agreement or the Merchant does not make a bank account available for Settlement in the Order Currency).
2.6 Fraud control
All Transactions processed by the Flo Services will be screened by the Flo Fraud Scan System, which performs a number of checks on the Transactions and attaches a resulting total score to each Transaction, which represents the likelihood of the Transaction being fraudulent. Merchant must configure the scoring values for the Flo Fraud Scan System via the Customer Area on the Flo website to determine how the Flo Fraud Scan System will judge Transactions. TheFlo Fraud Scan Systeml does not guarantee the prevention of fraudulent Transactions, nor against resulting Chargebacks or Fines. Regardless of the resulting total score, Transactions may be fraudulent or non-fraudulent. Flo reserves the right to change the scoring values as set by the Merchant in the Flo Fraud Scan System in case Flo in its reasonable discretion on the basis of clear and objective indications judges these to pose an unacceptable risk for accepting fraudulent Transactions or creating increased Chargeback levels. (Flo is not under any obligation to check these or any other setting made by Merchant in the Customer Area.) Furthermore, Flo has the right to add new checks to the Flo Fraud Scan System or change existing checks without prior notice. For some Payment Methods, Transactions can be cancelled by the Merchant after they have been Authorised. The final responsibility for accepting or rejecting a Transaction will remain with the Merchant. Flo reserves the right to cancel Transactions that it has reasonable grounds to suspect to be fraudulent or involving other criminal activities, even if the Flo Fraud Scan System failed to block the Transaction.
For some Payment Methods it is possible to ask for Authorization of a payment (to check whether the Account Holder indeed has an account that can be charged for the payment amount) without immediately Capturing the Transaction. The prior Authorization gives the Merchant some additional assurance that when Merchant Captures the Transaction, it will be Settled to the Merchant (and not blocked or subject to Chargeback). The Merchant is responsible for Capturing Transactions; this can be realised via the Customer Area or the API. Merchant understands that Authorized Transactions have a limited maximum Capture Period in which they can be Captured which is set by the Issuing Bank or the relevant Scheme Owner. Beyond the applicable Capture Period, the additional assurance granted by the prior Authorisation is no longer valid, increasing the chances of the Capture not leading to a successful Settlement of the related payment. It is Merchant’s responsibility to check the applicable Capture Period via the Customer Area to ensure it timely Captures Authorised Transactions. Merchant should generally take into account that the Capture Period can be as short as 5 days after Authorization.
Funds from the Account Holders charged for the validly processed Transactions of the Merchant which are Acquired via Flo and the contracted Third Party Acquirer are settled by the Acquirer to the Merchant Directly.
It is Merchant’s responsibility to evaluate if the conditions imposed by the Payment Methods for settlement (as communicated from time to time via the Customer Area and/or by the Scheme Owners themselves via their websites and other communication channels to the Merchant) are acceptable to the Merchant. This is specifically relevant for the Merchant to take into account with respect to Payment Methods that are not monitored and regulated by governmental financial services authorities such as but not limited to non-Card Scheme related prepaid cards and SMS and IVR payments. Merchant understands and agrees that Flo will not compensate Merchant for late or non-performance, insolvency or bankruptcy of the Acquirer or Scheme Owner due to which Merchant receives late Settlement or no Settlement at all for processed Transactions.
Flo reserves the right to withhold Settlement of Transactions if they are Captured, but suspected to be fraudulent, related to illegal activities or likely to become subject to a Chargeback by Flo and/or the relevant Acquirer and/or Scheme Owner, until satisfactory completion of Flo’s investigation, that of the relevant Acquirer or Scheme Owner or that of a third party nominated by any of these parties. The Merchant will give its full cooperation to any such investigation. Merchant must pay Flo’s and Third Party Acquirer’s Fees and charges at the agreed upon schedule and amounts based on the Merchant Agreement, Agreement with Acquirer, associated with transactions, payment methods and Flo’s Products and Services used to facilitate data and transaction processing.
2.9 Merchant obligations and restrictions
Merchant may only use the Services for payment of those Merchant Products and Services within the industry for which Merchant registered when entering into the Merchant Agreement with Flo. The acceptance by Flo of Merchant as a customer is strictly linked to the description of Merchant’s Industry, Products and Services that Merchant registered for when entering into the Merchant Agreement. Merchant must receive prior written approval for any change or addition to the Merchant’s Industry offerings or products within the approved industry that are not approved for sale by flo.
The Merchant shall not use the Services for the payment of Merchant Products and/or Merchant Services where it is illegal to offer or provide these to or from the relevant country and/or which are stated in Flo’s Prohibited and Restricted Products and Services List. Merchant may obtain a written waiver for Products and Services in the ‘restricted’ section of this list, but such waiver may be revoked by Flo at it’s discretion. This list may be updated at Flo’s discretion where needed to ensure legal compliance, compliance to Scheme Rules, prevent high levels of Chargebacks, reputational risks and/or to reduce exposure to potentially fraudulent or illegal transactions. Merchant will be informed of updates of this list by Flo publishing an updated list in the Customer Area. Where a published change affects a significant portion of the Merchant’s Product or Services, Merchant may terminate the Merchant Agreement by giving written notice to Flo.
Flo’s acceptance of Merchant as customer should not be interpreted as an advice or opinion of Flo as to the legality of Merchant’s Products and Services and/or of Merchant’s intended use of the Services therefore. Merchant is and remains solely responsible to ensure the Merchant Products and Services sold are compliant with the Scheme Rules and applicable laws in its country of origin and the countries it’s customers are based in. Further some Payment Methods apply additional restrictions as set out in the applicable Scheme Rules which Merchant must at all times ensure compliance with.
The Services of Flo may not be used (and Transactions may not be submitted for processing) for prepaying Merchant Products and Services for which the Delivery Date is in part or in whole more than 12 months after the date the Transaction is submitted for processing.
For E-commerce Transactions, Merchant is obliged to provide on its website the following information to an Account Holder for every Transaction: complete description of the goods or services offered, returned merchandise and refund policy, customer service contact (including email address and/or telephone number), address, delivery policy, Merchant’s consumer data protection policy and all other legally required information to be provided to the Account Holder in the relevant jurisdiction.
The Merchants must maintain a copy of all electronic and other records related to the Transaction and the ordering and delivery of the Merchant Product and Services for the greater of (i) 2 years subsequent to the Transaction being processed or (ii) the applicable warranty period of the delivered Merchant Product and Services. The copy of the records shall include, but not be limited to: shipping details (if relevant), invoices/receipts for the delivered Merchant Product and Services and all contacts with the Account Holder. In case of investigations by Flo, the Acquirers and/or the Scheme Owners with respect to Chargebacks, suspected fraud or other RFI’s from the Scheme Owners, Merchant will fully cooperate in the auditing of such records. Merchant’s obligations to maintain documentation of its business according to applicable laws remain unaffected by this clause.
Merchant shall not honour delivery address changes for any Transaction after requesting the Authorization.
2.10 Warning – Fines scheme owners
For violations of certain key requirements under the Scheme Rules by Merchants, some Scheme Owners (and in particular the Card Schemes) can levy significant Fines, ranging from 25.000 Euro to over 1 million Euro. The Scheme Owners do this to protect the Account Holders, Merchants and providers of the Payment Methods collectively against misuse, fraud, illegal activities, breach of applicable laws, reputational damage and excessive costs. Key examples of Scheme Rules which are subject to such Fines: (i) using the Payment Method for other Merchant Products and Services than for which the Merchant received express authorization to use it for; (ii) using the Payment Method for Merchant Products and Services which are violating applicable laws; (iii) using the Payment Method for selling Merchant Products and Services for which the Scheme Owner explicitly prohibited its use (e.g. adult content, drugs, arms, gambling); (iv) using the Payment Method for the benefit of a third party / reselling the use of the Payment Method to a third party (the authorization for Merchant to use a Payment Method is strictly personal); (v) percentage of Transactions of a Merchant which is subject to a Chargeback is above the applicable acceptable level (see clause 7.1 for more information on this); (vi) breaches of security and confidentiality obligations with respect to Payment Details (see clauses 4.1 and 4.2 for more information on this); (vii) fraudulent, misleading activities of which Account Holders are the victim. Via the Customer Area more detailed information on then current applicable Fines and Scheme Rules is available for Merchant. Merchant is strongly advised to regularly review the then current Scheme Rules and relevant changes to applicable laws as applicable to its Merchant Products and Services and business practices to ensure their compliance to applicable Scheme Rules. Flo assists Merchant in this by providing access to and summaries of applicable Scheme Rules via the Customer Area. Where Merchant finds the Scheme Rules (including Fine possibility) to be unacceptable, Merchant is free at any point in time to stop using the relevant Payment Method (the Scheme Rules and these terms remain applicable to previously processed Transactions for Merchant).
Where Flo becomes aware of and/or received any notice of a potential exposure to a Fine related to any Merchant behaviour, Merchant will on first request provide all reasonable cooperation to help investigate the relevant circumstances and remedy the relevant violation, notwithstanding all other rights and remedies of Flo in such situation as per the Flo Terms and Conditions. Where possible Flo will share relevant feedback received by Merchant with the Acquirer/Scheme Owner handling the potential Fine so it can be taken into consideration by the Acquirer / Scheme Owner. If Fines are applied for Merchant violations, these may be invoiced by the Scheme Owners and/or the relevant Acquirer to Flo as their contracting party (for the benefit of the Merchant) or to Merchant directly. Merchant shall fully indemnify and hold Flo harmless from any Fines applied by the Scheme Owners as a result of Merchant’s breach of the terms of the Merchant Agreement and/or the Acquirer and/or Scheme Rules.
2.11 Bank account (for eligible merchants only)
Flo may open a Bank Account for a Merchant which is an Eligible Merchant. The Merchant agrees that the Bank Account shall be used only for commercial or business purposes, and not for personal, family, or household purposes. This bank account will be used for Merchant transaction processing only done through the Flo Software, Products, and Services. This Bank Account is commonly referred to as the MID.
Outgoing funds transfers
By default any credit balance on the Bank Account will be automatically transferred to the Merchant’s designated business checking account(s) held with a third party bank on the agreed upon schedule in the Merchant Agreement. If and to the extent necessary, the Merchant hereby authorizes Flo to execute transfers from the Bank Account (MID) to the Merchant’s designated business checking account(s).
Date of receipt of a Payment Instruction
If Flo receives a Payment Instruction from the Merchant after the end of the Working Hours of a Business Day, this Payment Instruction will be deemed to have been received on the following Business Day. The Merchant and Flo may agree that execution of a Payment Instruction shall start on a specific day or at the end of a certain period or on the day on which the Merchant has put funds at Flo’s disposal, in which case the time of receipt of the Payment Instruction will be deemed to be the agreed day. If the agreed day is not a Business Day for Flo, the Payment Instruction received shall be deemed to have been received on the following Business Day.
The Bank Account may grant some Merchants multicurrency capabilities. This depends on what the Merchant has agreed to in the Merchant Agreement. Some merchants can also process transactions through the Flo Software in the Customer’s local currency while the merchant receives the funds in USD. The Merchant Agreement outlines if The Merchant has been granted that capability and what fees will be associated with these types of transactions.
2.12 Rights of set-off
Without prejudice to any right to set-off which Flo may be entitled to as a matter of law, Flo may set-off any amounts due to the Merchant or standing to the credit of the Bank Account against any amounts owed or other liabilities of the Merchant, now or at any time hereafter due, owing or incurred by the Merchant to Flo under, in connection to, or pursuant to the Terms and Conditions and/or the Merchant Agreement. This right of set-off includes but is not limited to the situation where proceedings are initiated for the winding up, bankruptcy or dissolution of the Merchant (or similar proceedings). Flo may also set-off if: (i) Flo’s debt is conditional or not due; and/or (ii) the Merchant’s debt is not due.
The Merchant will be informed of Flo’s use of its set-off rights. Claims expressed in different currencies will be set-off at the prevailing exchange rate(s) at the date of set-off.
3. Pricing and Invoicing
Flo will invoice the Merchant twice per month for the Services rendered. Invoices provide an overview of (i) the Transaction Fees and other costs and fees due, calculated on the basis of the prior billing periods Transaction volume, Payment Methods used, and any other agreed upon fees. The invoice currency will be US Dollars (USD) unless expressly otherwise agreed in writing. Merchant also agrees to pay separately all fees charged by Flo’s Contracted 3rd Party Acquirer. Flo’s Contracted 3rd Party Acquirer fees will be billed separately on the schedule set by the Contracted 3rd Party Acquirer. Flo provides electronic invoices/receipts as standard. You (the Merchant) expressly authorize and agree to allow Flo and Flo’s Contracted 3rd Party Acquirer to pull funds (debit) your specified account for Billing automatically on the schedules agreed to.
Flo shall be unilaterally entitled to raise the prices for its Services or offer custom pricing. Said price increases shall become effective immediately for the Services rendered by Flo. The price increases will not take effect for any merchant with a Current Executed Merchant agreement for the length of that merchant agreement. Once the Merchant Agreement lapses the then current prices posted on the website will take effect unless the merchant and Flo have agreed to custom pricing.
For the avoidance of doubt, this clause does not apply to any communicated increase of fees charged by the Acquirers or Scheme Owners for the use of their Payment Methods where such fees are not included in the fees charged by Flo (e.g. in case the Interchange Fee is increased by the relevant Scheme Owner or Acquirer where an Interchange Plus pricing is agreed to apply) or due to changes in applicable laws.
3.3 Reserve level calculation
Flo shall set the Reserve Level in coordination with the Flo 3rd Party Contracted Acquirer to be applied by Flo or Acquirer to the account for and cover for the potential indebtedness of Merchant for fees, Fines and Chargebacks payable from Merchant to Flo or Acquirer, based on Flo or Acquirer’s reasonably assessed then current estimate of the Uncompleted Order Amount, potential Fine exposure and other potential liabilities.
Flo and Third Party Contracted Acquirer’s have the right to adjust the Reserve Level in its discretion from time-to-time to bring it in line with its then current estimates. Flo or Third Party Acquirer may request that Merchant hold a Reserve through other means and Merchant must comply if Merchant wishes to use Flo Products and Services with Flo’s Contracted Third Party Acquirer.
3.4 Reserve reservation
The initial Reserve Level will be set by Flo or Contracted 3rd Party Acquirer on the basis of the information provided by Merchant regarding its anticipated initial use of the Services when entering into the Merchant Agreement. Flo or Contracted 3rd Party Acquirer may require Merchant to transfer the Initial Deposit to the requesting party before it may start using the Services for commercial (so non-testing) purposes. Flo or Contracted 3rd Party Acquirer may request Merchant show proof of Reserve level through other agreed upon means, and Merchant must comply in order to activate Flo Services.
After termination of the Merchant Agreement or after processing of Transactions is stopped, the Reserve Level shall be released by Flo or Contracted 3rd Party Acquirer within 6 months of a termination or service stop unless other liabilities, determined by Flo or Contracted 3rd Party Acquirer, require the Reserve to be held longer. If Reserve Level is not held by Flo or Contracted 3rd Party Acquirer then Merchant must wait for Flo to give notice that the Reserve may be removed.
3.5 MSC Calculation
For the ‘Interchange Plus’ pricing structure, Merchant acknowledges that the actual MSC is calculated by Flo and Contracted 3rd Party Acquirer based on the actual then current Interchange Fee per Transaction attracted by that Transaction, according to Card Scheme Interchange pricing which varies from time to time. The then current Card Scheme Interchange pricing level is published by the Card Schemes. The agreed MSC pricing structure is documented in the Merchant Agreement.
Merchant agrees to pay all fees for Flo products and services on the agreed upon schedule covered in the merchant agreement. Merchant also agrees to Pay all fees to Flo’s Contracted 3rd Party Acquirer on the schedule set forth in the agreement between the Acquirer and the Merchant.
Customers of any Flo Merchant agree to pay the full amount submitted by the Merchant and shown on the Flo Hosted Payment Page (or other Flo provided interface). Customers of Merchant agree to all terms presented by the merchant when they make a purchase with a Flo Merchant. Provided a Merchant and Customer have agreed to the terms outlining future transactions, A Flo Merchant with the proper consent and authorization from that Merchant’s Customer has the express right to submit transactions to Flo through the API directly, without any customer interaction with a Flo Hosted Payment Page. Flo Has the express right to charge the Customers for transactions submitted in this way using the Customer’s designated Payment Method. If Customer fails to make a payment with the designated payment method Flo has the right to charge other payment methods that the customer has entered into the Flo Software Interface.
Customer authorizes Merchant they are transacting with to use information provided to initiate an electronic fund transfer from my account or to process the payment as a check transaction or bank drawn draft from my account for the amount(total amount listed on the hosted payment page). If my payment is returned due to insufficient funds, I authorize Merchant to make a one- time electronic funds transfer or to use a bank draft drawn from my account to collect a fee as allowed by state law. Customer authorizes Flo to send the data required to process a check or bank drawn draft (ACH) transaction on behalf of themselves and of the merchant.
All Customers of Merchants and of Flo expressly agree and Authorize Flo to process data and transactions on a recurring basis when the requirements for such a transaction have been met. Flo or Contracted 3rd Party Acquirer may at any time request and bill payment of fees immediately upon it’s sole discretion if any of the following events occur:
- Refunds and/or Chargebacks in case the outstanding Refund and/or Chargeback amounts exceed the Settlement amount.
- Any amount required by Flo to cover any (potential) liability of the Merchant under this Agreement.
- Any other charges or amounts due by Merchant under this Agreement including Fines from the Card Schemes.
Interest shall accrue on any unpaid amounts owed by the Merchant to Flo at the rate of 1% per month or the highest legal limit within the corresponding jurisdiction where the the legal rate is less than 1% per month.
Taxes charged at the point of sale by Merchants to their Consumers are at their discretion in accordance with the applicable laws and rates.
4.1 Hosted payment pages
The Services shall be used by the Merchant for Card Not Present Transactions via the Hosted Payment Pages unless agreed otherwise in the Merchant Agreement. The Merchant redirects the Account Holder/Customer to the secured Hosted Payment Page of Flo. The Hosted Payment Pages can be tailored on some points by the Merchant by using the standard ‘skin’ options embedded therein.
Merchant shall not capture, register and/or have the Account Holder fill in, any Payment Details (expressly including Credit Card data) on its own site, but will use the Hosted Payment Pages instead to have the Account Holder/Customer submit its Payment Details there. Merchant will not use screen grabbing or other emulation technologies to input Payment Details onto the Hosted Payment Pages.
Merchants may be given the option to integrate the Flo Hosted Payment Page without fully redirecting to the Flo Software. In this instance all of the above rules and terms still apply, but the Customer/Account Holder will not leave the Merchant’s website.
4.2 API Interface
(The following is only applicable for Merchants with which Flo expressly agreed to provide a Payment Interface via the API method for Card Not Present and other Customer not Present Payment method merchant Transactions.)
If Merchant does not activate 3D-Secure for Transactions offered via the API interface where such option is available, Merchant understands that a higher Interchange Fee may be applied by the Card Schemes / Acquirers and other restrictions may be applied by the Card Schemes / Acquirers.
Flo has the right to immediately suspend Transaction processing for Merchant in case Flo has any indication that Merchant is not compliant with the PCI-DSS standards which Merchant cannot immediately prove to be not founded. Merchant shall fully indemnify and hold Flo harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Flo incurs as a result of Merchant’s breach of this obligation.
4.3 Merchant equipment and software / POS terminals
The Merchant shall be solely responsible for the installation, servicing, maintenance, security and operation of the equipment and software needed to connect to the Payment Interface and submit Transactions for processing by Flo. Flo provides standard software modules and installation guides to the Merchant to help enable the connection to the Payment Interface and may provide software tooling to interact with POS Terminals provided or approved by Flo to connect to the API. Flo shall ensure its input is provided in a professional manner, but Merchant remains responsible to ensure the correct implementation and use of the Services in its own systems in accordance with the then current installation and usage instructions and software updates provided by Flo via the Customer Area.
Merchant may only submit POS Transactions to Flo if this is explicitly agreed in the Merchant Agreement. Merchant may only submit POS Transactions for processing using POS Terminals approved by Flo for such purpose from time to time, adhering strictly to any then current usage instructions as issued by Flo with respect thereto via the Customer Area, including by updating the software embedded on the POS Terminal with software updates made available by Flo.
Where a POS Terminal is provided by Flo or recommended for use by Merchant in combination with a third party device like a tablet, I-pad, cash register etc., a “Third Party Device”, Merchant must install the then current version of the software and related updates issued by Flo for such Third Party Device on such Third Party Device. Flo is not responsible or liable with respect to the proper functioning of the Third Party Device and use of such third party device will be subject to license and usage terms imposed by the relevant third party providers of such Third Party Device.
Flo may also provide Merchant with software building blocks (such as software libraries) to enable Merchant to create applications to interact with Flo provided or Flo approved POS Terminals. Support by Flo with respect to the use of such tooling and software building blocks and the applications created therewith, is not included in the Services of Flo and such tools are provided on an “as is” basis without any warranty.
4.4 Merchant integration responsibility
It is the responsibility of the Merchant to comply with the relevant instructions and installation manuals issued by Flo regarding its integration into the Flo Services and Software, including updates issued from time to time to Merchant via the Customer Interface. Flo is not obliged to provide notification of changes to the Software and the interfaces thereto which would not impact Merchant’s use of the Services if it had correctly followed the integration instructions and other usage manuals.
4.5 Defensive programming
Flo strongly advises to use “defensive programming” when integrating with the Flo Services. This implies for example that automated decisions programmed into the systems of Merchant should be defaulted to non-delivery of products and services. E.g. program your systems only to deliver products or services after receiving an express authorization of the payment requested and not program your system to deliver in case no explicit rejection is received.
4.6 Meaning of payment status “Authorized”
If a payment request receives the status “Authorized” (or similarly worded status), this means the payment transaction is likely to be successful. However, this is not 100% certain. Payment may still be blocked or subject to Chargeback by the Account Holder (where Chargeback is possible under the relevant Scheme Rules). The likelihood of a payment marked as “Authorised” being blocked or unsuccessful depends on the Payment Method which is used. For example for direct debit transactions this risk is significant because in most cases the status “Authorised” only means the Account Holder’s bank account exists and not that there are enough funds on the bank account to actually perform the payment.
4.7 Change to software
Flo reserves the right to change or amend the Software and the interface to it at any time, to provide the Merchant with a new version thereof, and/or to change the functionalities and characteristics of the Software. No changes will be implemented by Flo which materially reduce functionality of the Services which was explicitly committed to be provided under the Merchant Agreement, except where this is made necessary by: (i) the need to follow generally accepted changes in industry standards, (ii) changes in applicable laws or Scheme Rules, (iii) the need for increased security due to security risks identified by Flo (iv) other reasonable grounds which warrant the reduction of functionality, (v) changes to the software and services for the purpose of adding functionality or updating how Flo software works . If Merchant is significantly impacted by a material reduction of functionality due to a change in the Software, it may terminate the Merchant Agreement by giving written notice to Flo within one month after Flo announced the change.
Flo will announce material changes to the API Interface for the Merchant where reasonably possible at least 1 month in advance to allow Merchant to prepare for any impact. Flo endeavours to minimize changes to the API Interface. Shorter notice periods may have to be made to comply with applicable laws, changes in requirements from Acquirers or Scheme Owners or the need for increased security due to security risks identified by Flo.
4.8 Security of payment details
Merchant guarantees not to copy, capture or intercept Payment Details such as credit card numbers, CVM Codes, ‘PIN’ codes, Bank Login details, or account and routing numbers that are entered on the Hosted Payment Page or on the POS Terminal. This rule is imposed by the Scheme Owners to protect Account Holders against misuse of their Payment Details (like credit card numbers) and is strictly enforced by the Scheme Owners, and a violation of this rule can lead to the application of high Fines by the Schemes Owners. If Flo has reason to believe that Merchant is copying, capturing or intercepting Payment Details, Flo has the right to suspend processing of Transactions and Settlement. Merchant shall fully indemnify and hold Flo harmless from any losses, claims (including applied Fines by the Scheme Owners), costs or damage Flo incurs as a result of Merchant’s breach of this obligation.
5. Customer support
For Merchants regular support is available by email or direct contact with your Account Executive on Business Days within Working Hours. Consumer and Merchant support is available by email to Support@flopay.co
6. Service level agreement
6.1 Uptime commitment payment interface
Flo commits to use all commercially reasonable efforts to achieve an average minimum uptime of 99.9% (measured on a quarterly basis) of the Payment Interface, to receive Transaction requests, excluding from the uptime calculation any downtime of the Payment Interface caused by acts or omissions of Merchant, Acquirers or Scheme Owners, changes implemented on specific Merchant request, general internet failures, failures of individual Payment Methods or force majeure. Merchant is obliged to immediately notify Flo of any downtime of the Payment Interface which it experiences and to provide all reasonably requested co-operation in investigating and resolving any such downtime.
Flo uses all reasonable efforts to avoid having to take the Payment Interface offline for executing planned maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, Flo will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential Transactions for all its Merchants. Should under emergency situations (e.g. in case of force majeure event or terrorist attack) unplanned maintenance be necessary to the Payment Interface necessitating it to be taken offline, Flo will use all available resources to keep the required downtime to the absolute minimum.
6.2 Security and compliance
Flo takes reasonable measures to provide a secure payment system and shall keep its systems used to provide the Services PCI-DSS certified.
6.3 Back Office maintenance
Planned maintenance to the back office of Flo’s payment processing system (the Customer Area) will happen in the standard weekly maintenance window on Tuesdays 07:00 – 07:30 AM or PM PST or at other times as determined by Flo when necessary. The Customer Area may be temporarily not available during planned maintenance. Flo will do it’s best to notify Merchants ahead of planned maitenence. As specified in clause 6.1 back-office maintenance will only in exceptional circumstances affect the availability of the Payment Interface for accepting Transactions.
7. Chargebacks and Refunds
7.1 Chargeback liability
Many Scheme Owners, and in particular including most Scheme Owners issuing Credit Cards allow Account Holders to Chargeback Authorised and Settled Transactions by requesting a Chargeback from the Scheme Owner or the Issuing Bank. Merchant’s receipt of a Settlement and/or Authorisation confirmation regarding a particular Transaction therefore does not unconditionally entitle Merchant to receive Settlement of the Transaction amount or to keep the Settled amount, as in case the Account Holder claims a Chargeback in accordance with the relevant Scheme Rules, Merchant loses entitlement for the relevant amount and must return it via Flo to the Account Holder. Please check the relevant Scheme Rules to see which Payment Methods allow Chargebacks and applicable procedures. Flo credits an Eligible Merchant’s Bank Account with Settlement amounts on the condition that no Chargeback shall occur. If there is a Chargeback, Flo is authorized to debit the credit that was made to the Bank Account.
Scheme Owners and Flo do not accept Merchant generating excessive levels of Chargebacks as Chargebacks are an indication of Merchant’s inability to provide the Merchant Products and Services in accordance with Account Holder expectations and create additional work and costs for all parties involved (including Scheme Owner, the Issuing Bank and Flo). If Chargeback levels of the Transactions of the Merchant for a specific Payment Method are above levels acceptable for Flo and/or the relevant Scheme Owner for that Payment Method or are expected to become above unacceptable levels, Flo reserves the right to suspend the availability of said Payment Method at its discretion.
In general Merchant should take into account that a Chargeback level of more than 0.5% of the total volume of Transactions which is Authorised, is considered unacceptable for Flo and most Scheme Owners and can lead to suspension of Transaction processing for the relevant Payment Method and/or Fines being applied (for which Merchant will be responsible). For some Payment Methods higher or lower tolerances for Chargeback levels may apply, please check the relevant then current version of the relevant Scheme Rules for this (see Customer Area for more information). Please note that the relevant Scheme Owner, Acquirer and/or Flo not taking immediate action in case of excessive Chargeback levels occurring cannot be interpreted as consent or a waiver of related rights by Flo, the relevant Acquirer or Scheme Owner.
Merchant may not provide Refunds to an Account Holder for a previously processed Transaction using a different Payment Method than the method used for the original Transaction. The original Transaction can in such case still be subject to Chargeback by the Account Holder or Issuer, causing the Merchant having to refund the received funds twice. This is a well-known method to make fraudulent use of stolen Credit Cards at the expense of Merchants.
In case Flo has reasons to suspect that Merchant is not delivering its Merchant Services or Merchant Product on or prior to the Delivery Dates used to calculate the Uncompleted Order Amount and/or if Flo has reason to suspect that the Merchant Products or Merchant Services for which Flo processes Transactions are based on fraud, likely to cause high Chargeback volumes and/or illegal, Flo has the right to suspend Settlement of all related Transactions and/or block Authorisations until Flo has been given assurances to its satisfaction that the relevant Merchant Products and Services are actually delivered in accordance with applicable laws and orders placed by the Account Holder.
7.2 Chargeback fee
For every Chargeback, a non-refundable Chargeback Fee will be charged to the Merchant as set out in the Merchant Agreement.
7.3 Chargeback payment
For every Chargeback, the Acquiring bank will either withhold funds or pull funds from the merchants designated business checking account in the amount of the transaction and fees associated with the chargeback
7.4 Chargeback period
As Chargebacks may arise a considerable period after the date of the relevant Transaction, the Merchant acknowledges and agrees that, notwithstanding the termination of the Merchant Agreement for any reason, Flo shall remain entitled to recover Chargebacks and Chargeback Fees and related Fines from the Merchant in respect of all Chargebacks that occur in relation to Transactions effected during the term of the Merchant Agreement.
7.5 Refund charges
Refunds will be charged as a Transaction by Flo and a Refund fee can be applied by Flo after giving prior notice to Merchant, if manual intervention is needed or additional costs are incurred by Flo to process such Refund.
Flo will not execute a Refund (meaning the relevant sum will not be returned by Flo to the relevant Account Holder, directly or via the relevant Acquirer / Scheme Owner) in case the funds for this cannot be subtracted from the next Settlement. Refunds are not funded by Flo from the Deposit (as the Deposit is not calculated taking Refunds into account) or funded from its own means. On Merchant’s request an additional deposit specifically for funding Refunds may be created with Flo to ensure the immediate execution of Refunds, irrespective of then current Settlement amounts.
7.6 No refund of fees
Fees charged for executing the original Transaction will not be refunded in part or in whole to the Merchant if the Transaction is Refunded or made subject to a Chargeback.
8. Property Rights
The property rights in the Software and other materials and all other intellectual property rights related to the Flo Services are owned by Flo and its licensors. The Merchant Agreement does not transfer any intellectual property rights with respect thereto and only provides Merchant a limited, non-exclusive and non-transferable license to use the Software and all other materials made available by Flo solely for the purpose of using the Services in accordance with these terms and the applicable usage instructions communicated to Merchant via the Flo website from time to time.
9. Confidentiality, Privacy and Compliance
All information relating to the Merchant or to Flo and designated as being confidential, and all information not expressly designated as confidential but which should reasonably be deemed confidential by reason of its nature or content, is considered “Confidential Information”. Each party remains the owner of all data made available to the other party. Merchant acknowledges that the terms of the Merchant Agreement and any information provided by Flo on its Services (including communications from Flo’s support functions) are Confidential Information. Each party undertakes to take all necessary steps to protect the confidential nature of all Confidential Information of the other party, agreeing, in particular:
- to share Confidential Information solely with personnel and representatives of the parties which have a need to have access to such information in order to exercise rights and obligations under the Merchant Agreement; and
- to refrain from making any Confidential Information available to any third party without the prior written consent of the other party except for Flo where necessary, to perform the Services.
The obligation to maintain confidentiality does not apply to information:
- available to the general public;
- disclosed to one of the parties by a third party without any obligation of confidentiality;
- already in the possession of or known to one of the parties at the time of disclosure;
- developed independently of the Confidential Information by the other party; or
- if and to the extent to one of the parties and/or their employees are obliged under an act or by decision of a court or administrative authority to disclose such information.
The obligation of confidentiality as described in this clause shall remain in effect also following the termination of the Merchant Agreement, regardless of the grounds for termination. The following data is to be considered confidential, without need for special mention:
- all financial data;
- any agreed Merchant specific terms and conditions in the Merchant Agreement, if applicable; and
- all user manuals, guides and any Software relating to flo products and services not disclosed publicly by Flo.
Where Flo processes personal data while performing the Services they will act as data processor under the direction and responsibility of the Merchant. Merchant will comply with the personal data protection laws of the Merchant’s country of origin and of those countries in which the Merchant offers its goods and/or services from time to time, in particular when processing and sending personal data to Flo in the context of using the Services and submitting transactions. Both Flo and Merchant shall implement appropriate technical and organisational measures to protect personal data against misuse.
The Merchant’s use of the Hosted Payment Page is PCI compliant under Flo’s PCI DSS certification for the Hosted Payment Pages subject to Merchant complying to these Flo Terms and Conditions.
10. Duration and Cancellation
Except where explicitly agreed otherwise in the Merchant Agreement, the Merchant Agreement is entered into for one year and auto extends for 12 month periods until it is terminated by either party by giving at least 60 days written notice to the other party.
Merchant has the right to terminate the Merchant Agreement immediately if: The Service availability in any given calendar month is less than 90%; and/or The SLA commitments in clause 6 are not met during two consecutive quarters. Flo has the right to terminate the Merchant Agreement and/or stop the processing or Settlement of Transactions for Merchant immediately in part or in whole if: The provision of Merchant’s Services/Products is reasonably suspected by Flo to be in breach with legislation in the country where the Merchant Services/Products are offered from or to; Merchant has materially changed the type of Merchant Services or Merchant Products without obtaining Flo’s prior written permission to use the Services for the new or changed types of Merchant Services or Merchant Products; Merchant materially breaches any of the terms of the Merchant Agreement, the Scheme Rules and/or applicable laws in the context of using the Services; An Acquirer or Scheme Owner demands Flo to terminate or suspend providing Services to Merchant with respect to Payment Methods made available by such Acquirer or Scheme Owner to Flo; or Flo finds there are clear indications that Merchant is, or is likely to become insolvent and/or unable to provide a material part of the Merchant’s Products and/or Services.
11.1 No liability for scheme owners and third party acquirers
Flo shall only be liable for its own acts or omissions and not for acts or omissions of third parties. This exclusion expressly applies to acts or omissions of Scheme Owners and Acquirers or for events or activities originating outside the systems of Flo (such as internet disturbances or malfunctions in third party systems), except in case such events were caused by the intent or gross negligence of Flo.
11.2 Limitation of liability
The total liability of Flo under the Merchant Agreement towards Merchant for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to the total Processing Fees paid by the Merchant to Flo during the previous three calendar months (or if no Services were provided in the previous calendar year, the total Processing Fees paid in the initial 3 months of the term of the Merchant Agreement). Flo shall not be liable for breach of contract, tort or under any other legal theory for any loss of profit, business, contracts, revenues or anticipated savings, or damage to good name; or for any special, indirect, or consequential damages. Neither Flo nor any other party to the Merchant Agreement excludes or limits its liability under the Merchant Agreement for intent, gross negligence, death, fraud or personal injury.
12. Indemnification and Fines
If any claims for damages, costs and expenses are asserted against Merchant by third parties asserting that these third parties are the owner of any rights regarding the Software and/or systems of Flo, Flo shall indemnify Merchant without delay from these third-party claims, including Merchants reasonable costs of its legal defence, and offer Merchant the necessary assistance in its legal defence. Merchant shall indemnify and hold Flo harmless from any claim (including legal fees) brought against Flo by any third party (expressly including Scheme Owners and Acquirers and their claims for payments of Fines) as a result of Merchant’s breach of the terms of the Merchant Agreement, applicable laws and/or the Scheme Rules applying to the Payment Methods used by Merchant.
13. General Provisions
Flo shall be entitled, at any time, to assign, novate or otherwise transfer the Merchant Agreement to another company in the Flo group, (i.e., a company with at least 50% the same shareholders), without the prior consent of the Merchant by providing written notice to Merchant of such transfer.
13.2 Null provisions
In the event that any provision in the Merchant Agreement (including the Flo Terms and Conditions) is declared null and void or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Agreement (including the Flo Terms and Conditions) shall remain applicable. The parties undertake to take all steps to eliminate the provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.
13.3 Entire agreement
The Merchant Agreement contains all the commitments between the parties and replaces all other prior contractual commitments between the parties. No representation, warranty or undertaking given by any of the parties to any of the other parties under the Merchant Agreement shall be of any force or effect unless expressly reduced to writing and repeated in the Merchant Agreement, and all implied or prior representations, warranties and undertakings are, save to the extent expressly set out in the Merchant Agreement, expressly excluded to the fullest extent permitted by law.
13.4 Use of name of the parties
The Merchant agrees that its name and standard logo (as published by the Merchant) may be included by Flo on the Flo client list on its website and in its sales materials. Flo shall be entitled to use said list freely in its commercial efforts. Any other use of Merchant’s name, logo or information shall only occur with Merchant’s prior written approval which Merchant may withhold in its discretion. The Merchant may on it’s website in the section “frequently asked questions”, or in a similar informational section on its website, refer to Flo as its payment service provider, explaining that this is the reason why the name Flo may appear on bank statements of the customer. Merchant may also include an internet link to the website of Flo in such context. Merchant must in each case also clearly state that customers of Merchant should not contact Flo for support or questions regarding payments processed by Flo for Merchant. Merchant must use Flo’s name and Logo or Powered by Flo on it’s payment button unless a While Label contract exists with Flo. Merchant must use flo specified assets unless otherwise agreed to in writing by Flo.
13.5 Changes to the terms and conditions
Flo may revise the Terms and Conditions from time to time. If the change has a material adverse impact on Merchant and Merchant does not agree to the change, Merchant may give written notice of its objection to Flo within thirty days after receiving notice of the change. If Flo receives such notice, Flo will contact Merchant to discuss the objections of the Merchant. If the Merchant continues to refuse to accept the change and Flo refuses to withdraw the announced change, Merchant may terminate the Merchant Agreement by giving at least one month written notice to Flo (such termination notice to be sent at the latest 60 days after Merchant received notice of the change). Merchant is not entitled to object to and shall not have the rights set out in this clause for any change which Flo implements in order to comply with applicable law or requirements imposed by the relevant Acquirers and/or Scheme Owners. For such imposed changes shorter notice periods may be applied by Flo as is needed to comply with the relevant requirement.
13.6 Deviating terms
13.7 Online contracting – written confirmation
In case Merchant has concluded the Merchant Agreement with Flo via Flo’s website and onboarding tools and portals or via any other online means, Flo may at any time request that Merchant re-confirms its acceptance of the terms of the Merchant Agreement (including these Flo Terms and Conditions) by means of a written document signed by an authorised representative of the Merchant. If Merchant does not comply with such request within 5 working days after receiving a request by Flo to do so (which request may be issued to Merchant via the contact email address submitted by Merchant when concluding the Merchant Agreement), Flo reserves the right to suspend part or all of the Services until Merchant has complied with such request.
14. Settlement of Disputes
14.1 Dispute handling
The parties undertake to take all steps to reach an amicable agreement to any dispute arising in relation to the validity, interpretation or fulfilment of the Merchant Agreement. This clause 14.1 is without prejudice to a party’s right to seek interim relief against any other party (such as an injunction) through the courts to protect its rights and interests, or to enforce the obligations of any of the other parties.
14.2 Applicable law and jurisdiction
The Merchant Agreement and these terms and conditions are solely governed by Laws of California. In the absence of an amicable agreement, any dispute relating to the validity, interpretation or fulfilment of the Merchant Agreement shall be submitted to the exclusive jurisdiction of the State of California.
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…or something like this:
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