TERMS AND CONDITIONS
Last Updated: 11 September, 2023
This Terms and Conditions, together with the Ordering Documentation and the E-Signature Disclosure Agreement (available here) (“E-Signature Disclosure Agreement”), are a binding and enforceable agreement ("Agreement") between the merchant, identified in Ordering Documentation ("Merchant"), and FlexCharge Inc. ("FlexCharge"). Each of the Merchant and FlexCharge shall be individually referred to as "party" and collectively as "parties".
The Agreement governs your engagement with FlexCharge in connection with your access to FlexCharge Software, the FlexCharge Portal, and use of the Factoring Services and Documentation (as are all defined below).
1.1. ACH Authorization means the authorization Merchant grants to FlexCharge, by providing its bank account details (including bank account name, bank routing number, and bank account number) to debit or credit its Merchant Bank Account in accordance with the terms of this Agreement.
1.2. Authorized User means those employees, contractors, and end users, as applicable, authorized by Merchant or on Merchant’s behalf to use the FlexCharge Portal and the Factoring Services in accordance with this Agreement.
1.3. Applicable Law means any and all applicable laws, legislation, bye-laws, decisions, notices, statutes, orders, rules (including any rules or decisions of court or any rules from a card or payment scheme), regulations, directives, edicts, schemes, warrants, local government rules, statutory instruments or other delegated or subordinate legislation and any directions, codes of practice issued pursuant to any legislation, voluntary codes, other instruments made or to be made under any statute and codes of conduct and mandatory guidelines (including in all cases those that relate to audit, accounting or financial reporting) and which have legal effect, whether local, national, international or otherwise existing from time to time, together with any similar instrument having legal effect in the relevant circumstances. The term “Applicable Law” shall specifically include any applicable data protection laws, the ROSCA, the Card Network Rules and the PCI DSS.
1.4. Account Receivable means the invoice issued by the Merchant covering a payment request for delivered merchandise, sales, purchase order or works or services effectively provided.
1.5. Account Payable means the Account Receivable approved by FlexCharge and assigned by Merchant to FlexCharge in real-time, following a failed transaction.
1.6. Card Network Rules means all rules, regulations and by-laws of the card network, as introduced and amended from time to time, including, if applicable.
1.7. Chargeback means a return of money request based on a payment transaction the Customer disputes. For clarity, it includes prevented and auto-resolved disputes made via chargeback prevention services such as CDRN, RDR, Ethoca, TC40, SAFE, etc.
1.8. Confidential Information means any information in whatever form, whether or not marked as “Confidential” or “Proprietary”, which is or should be reasonably be considered confidential including, without limitation, the terms of this Agreement, and any information relating to processes, practices, products, customer lists, payment transactions processed hereunder, the accounts, finance or contractual arrangements or trade secrets of the other party.
1.9. Customer means a person or entity which conducted a sale, purchase order, or other contract obligation with Merchant that created the Account Receivables.
1.10. Customer Data means Customer contact information such as name, surname, email, phone number, Customer payment information, credit card number, payment methods details, card holder name, issuing bank name, MID number, MCC code, KYC, data contained in a credit check report, etc. as applicable, shared by Merchant to FlexCharge for the purpose of conducting the Factoring Services or, if applicable independently collected by FlexCharge from the Customer or a credit bureau for the purpose of conducting the Factoring Services.
1.11. Customer Purchase Price means the Customer purchase price of each Account Payable, including applicable taxes, shipment fees or other fees. The sale taxes, price, shipping and handling prices are all determined by the Merchant prior to using the FlexCharge Factoring Services.
1.12. Documentation means any technical and operational manuals and guidelines issued by FlexCharge from time to time.
1.13. Factoring Fees, also known as the ‘Finance Charge’ means the fees payable by the Merchant to FlexCharge applied to the Account Payable including taxes and expenses, all as set forth and agreed between the Parties in the Ordering Documentation.
1.14. Factoring Services means the FlexCharge Portal, the FlexCharge Software, the Documentation and any direct or ancillary services provided by FlexCharge to the Merchant as detailed under Section 2 herein below, including support services.
1.15. Force Majeure means, in relation to either party, any event or circumstances beyond the reasonable control of that party including (without limitation) any acts of God, storm, earthquake, fire, flood, war, industrial action, vandalism, non-availability of any part of the network, governmental action, inclement weather conditions, atmospheric conditions and other causes of radio interference, failure or shortage of power or fuel supplies, and the acts or omissions or service failures of banking partners, card or transaction schemes, communications operators, internet service providers or other third parties.
1.16. Intellectual Property Rights means any intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, knowhow and any other intellectual property rights subsisting in computer software, computer programmers, websites, documents, information, techniques, business methods, drawings, logos, marketing methods and procedures and advertising literature, including the “look-and-feel” and in each case all rights and forms of protection of a similar nature or having an equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions;
1.17. Interchange Rate means 2% of the Customer Purchase Price.
1.18. Merchant Assets means the assets Merchant integrate with the FlexCharge Software in order to receive the Factoring Services, such as application, e-commerce website, etc.
1.19. Merchant Bank Account means an account with a duly authorized credit institution held in the name of the Merchant or a third party nominated by the Merchant (and in each case as acceptable to FlexCharge), used to receive Settlement Amounts from FlexCharge and pay Fees and other sums due to FlexCharge hereunder and from which the Merchant authorizes FlexCharge to debit funds pursuant to the ACH Authorization.
1.20. Merchant Frontend means any electronic retail sales facility (including any website and mobile or tablet sites or applications) operated by or on behalf of the Merchant (as amended from time to time) through which Customers are able to enter into a sale, purchase order or otherwise.
1.21. Notice Mechanism means the mechanisms FlexCharge offers to Merchant in order to notify Customers regarding Merchant’s assigning Customers’ Account Receivables to FlexCharge.
1.22. FlexCharge Portal means the online portal provided by FlexCharge which enables the Merchant, or the Authorized Users, to view the information, transactions, Factoring Fees, Settlement Amount, etc. and to submit Refund requests or other actions.
1.23. Merchant Information means information provided by Merchant during the registration or onboarding of the FlexCharge Portal, including without limitation, contact information, company names, company’s contact information and billing information associated with the FlexCharge Portal.
1.24. Ordering Documentation means one or more of the following: the online term sheet, ordering form, online registration form, portal registration, etc. in which the Parties agree to the commercial terms, such as the implementation date, the calculation of the Factoring Fees, etc.
1.25. Payment Method means a payment method available from time to time for executing Transactions, including credit card, debit card, wire transfers, direct debit, etc.;
1.26. PCI DSS or the Payment Card Industry Data Security Standard means any and all compliance requirement provided by the payments industry in order to reduce risks around data protection and security.
1.27. Refund means the payment Customer is entitled to when it returns the goods, cancels the services or subscription, or as otherwise determined by Merchant in its sole discretion. An “Approved Refund” means a Refund that was approved by Merchant and notified to FlexCharge.
1.28. ROSCA means the Restore Online Shoppers Confidence Act.
1.29. Settlement Amount means the total amount of the Accounts Payables per Settlement Time Period, minus the Factoring Fee, minus Approved Refunds and minus the Chargeback Amount. The Settlement Amount is paid directly by FlexCharge to the Merchant through the Merchant Bank Account, unless otherwise agreed in writing.
1.30. Settlement Time Period means the time window in which Account Payables are recorded for settlement purposes. Its default value is monthly (calendar month), unless otherwise specified in the Ordering Documentation.
1.31. Software means FlexCharge’s software enabling Merchant to tackle failed payment transactions suffered by their Customer.
2. THE FACTORING SERVICES
2.1. Subject to the terms herein, FlexCharge allows Merchant to sell the Account Receivables to FlexCharge in real-time, through the FlexCharge Software which is integrated with the Merchant Assets.
2.2. The Merchant assigns, sells and transfers to FlexCharge, the Accounts Receivables during the Term.
2.3. FlexCharge shall determine, in its sole discretion, among the Account Receivables processed via the Software, which Account Receivable is applicable and eligible for the Factoring Services and assigned as Accounts Payable. FlexCharge will collect the Account Payable directly from the Customer, and shall pay the Merchant the Settlement Amount, subject to the terms herein.
2.4. FlexCharge will issue the credentials granting the Merchant and its Authorized Users access to the FlexCharge Portal providing a dashboard and information regarding the Factoring Services, including support services provided by FlexCharge. Merchant hereby agrees to restrict use and access to the Merchant Platform only to its Authorized Users on an as-needed basis and ensure that each Authorized User is aware of, and complies with, the terms of this Agreement. Merchant is solely responsible for maintaining adequate security and control of any credentials used in order to access the FlexCharge Portal.
3. MERCHANT OBLIGATIONS
3.1. The Merchant shall implement the Software in accordance with the Documentation and shall provide at least a reasonable level of protection of its network infrastructure in order to prevent any compromise of its systems and data, including without limitation, Customers’ Data through the Software. The Merchant shall install needed updates and shall comply with reasonable instructions of FlexCharge as provided from time to time.
3.2. The Merchant is solely responsible for all activities in the FlexCharge Portal, an Authorized User or a third party under Merchant’s control, agree to notify FlexCharge immediately of any unauthorized use. FlexCharge will not be held responsible for any unauthorized access by such parties within the FlexCharge Portal. The Merchant is solely responsible to identifying the authentication of all Authorized Users, for approving the access by such Authorized User and for controlling any unauthorized use of the FlexCharge Portal. FlexCharge is not responsible for any harm caused by the Authorized Users, including individuals who were not authorized to have access to the Factoring Services but who were able to gain access because credentials were not terminated on a timely basis or Merchant Assets. The Merchant is responsible for all activities that occur under the usernames, passwords or as a result of the access to the FlexCharge Portal.
3.3. The Merchant has to avoid any act which will prevent or delay the payment of the Account Payable to FlexCharge or the fulfillment of the commitments undertaken with the Agreement. Objections and claims like set-off, withholding, etc. which may be attributable to the basic relationship between the Merchant and its Customer shall neither prevent the Merchant from fulfilling its obligations against FlexCharge nor delay the execution of such obligations.
3.4. The Merchant shall provide FlexCharge with an e-signatory authorization, in compliance with the terms of the E-Signature Disclosure Agreement (available here), in order to provide Merchant with the Factoring Services. By accepting this Agreement, Merchant agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing.
3.5. The Merchant shall authorize FlexCharge to initiate electronic credit and debit entries to the Merchant Bank Account designated on Merchant's ACH Authorization in accordance with the terms of this Agreement. Merchant understands and agrees that the initiation and transmission of each debit and credit will be subject to, and will be made in accordance with, U.S. law and the Operating Rules of the National Automated Clearing House (“NACHA Rules”). Merchant represents, warrants, and certifies to FlexCharge that the Merchant Bank Account identified on the ACH Authorization is a business deposit account and that such Merchant Bank Account is not used for any personal, family, or household purposes.
3.6. The Merchant must:
3.6.1. Inform the Customer of Merchant's identity (including prominently displaying its registered name and any trading name on the Merchant Frontend) and address of its fixed place of business;
3.6.2. Provide Customers with a confirmation email which includes the (1) terms and conditions of sale including the Merchant’s delivery policy, returns and cancellation policies (which policies shall at all times comply with Applicable Law); (2) amount due for the transaction including any additional fees, and if subscription based, the amount and periodicity of the subscription charge, date and currency in which, any charges will commence; and (3) Merchant's customer service email and telephone contact details;
3.7. By accepting this Agreement the Merchant confirms that Merchant is and will remain in full compliance with the Card Network Rules, including without limitation: (i) violate, misappropriate or infringe any rights of any third party, (ii) will defame or invade the rights of privacy or publicity any rights of any third party, or (iii) is designed for use in any illegal activity or promote illegal activities, including, without limitation, in a manner that might be malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age. The Merchant shall fully cooperate with FlexCharge to investigate any suspected illegal, fraudulent, or improper activity on the part of the Merchant, a Customer, or any other third party. Notwithstanding the above, the Merchant shall not use the Factoring Services for prescription or non-prescription drugs; illegal downloads, content or goods; illegal gambling; goods or services infringing Intellectual Property Rights of a third party; tobacco products, alcohol or firearms; purchase of digital currencies, loading of other e-money accounts; Ponzi schemes or similar fraudulent investment operations; or any goods or services prohibited by Applicable Law.
3.8. The Merchant acknowledges and agrees that: (i) FlexCharge is not a bank nor a seller, agent or merchant in relation to the Merchant’s services and goods; (ii) Merchant remains solely responsible for the good or services the Customer purchased, including for their shipment, other deliveries, etc.; and (iii) any dispute with Customer or other third party regarding any Merchant goods and service, including the shipment and refunds, is between the Merchant and such Customer or third party, and the Merchant shall indemnify FlexCharge in respect of any loss, liability, claim, expenses of any kind (including legal and professional costs) suffered or incurred by FlexCharge in relation to such dispute of the Merchant’s goods or services. Notwithstanding the above, FlexCharge reserves the right to contact the Customer directly in order to request an alternative payments method.
3.9. The Merchant represents and warrants that: (i) the business it carries is a legitimate, lawful business and the Merchant is not engaged, and will not engage in any illegal activity; (ii) the Account Receivables are based on a real commercial relations; (iii) the Merchant Information is and shall, at all times, comply with all Applicable Laws and any third party Intellectual Property Rights; (iv) it shall, in accordance with Applicable Law, perform anti-money laundering checks and controls including performing know-your-customer checks on Customers; (v) it will use the Factoring Services in accordance with the terms of this Agreement and Applicable Laws, including the requirements and obligations imposed under Article 9 to the Uniform Commercial Code, the Federal Trade Commission Act; (vi) it has obtained and shall retain all valid licenses and rights to conduct its business; (vii) it has provided all necessary disclosures, and obtained all necessary consents if applicable, permissions and rights , including the notice that the Account Payable was assigned, permissions and rights to use the Factoring Services and, where necessary, to license to FlexCharge, any materials reasonably necessary for the fulfilment of all of its obligations under this Agreement, including any third party licenses and consents in respect of the Merchant Information and any software the Merchant operates.
4. FLEXCHARGE OBLIGATIONS
4.1. The Factoring Services provided shall be performed in a professional and workmanlike manner with a degree of care, skill and competence that is consistent with generally accepted industry standards reasonably expected of similar types of engagements.
4.2. The functionality of the Software or Factoring Services will not be materially decreased during the Term and FlexCharge shall use commercially reasonable efforts consistent with industry standards to maintain the Software and Services in a manner that minimizes errors and interruptions.
4.3. The Software does not infringe third party rights, and Merchant’s use of the Software and the Factoring Services will not, infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of or otherwise infringe third party Intellectual Property Rights.
4.4. It has, and shall remain during the Term, in compliance with Applicable Laws, including the requirements and obligations imposed under Article 9 to the Uniform Commercial Code, or the Federal Trade Commission Act. The Factoring Services or any part of this Agreement shall not be inconsistent with any obligation FlexCharge may have to any other person or entity. FlexCharge has implemented a compliance management system, including policies, procedures, internal controls, etc. to promote compliance with relevant federal consumer financial laws and regulations, including unfair, deceptive, or abusive acts or practices.
4.5. FlexCharge will apply the Notice Mechanism as determined by the Merchant.
5.1. In consideration of the Factoring Services, FlexCharge shall retain the Factoring Fees it is entitled to from the Merchant as outlined under the Ordering Documentation and provide merchant with the Settlement Amount.
5.2. The Merchant shall provide FlexCharge with complete and accurate information regarding the Merchant Bank Account. The Merchant will notify FlexCharge in writing in advance of any change to the Merchant Bank Account (other than general administrative changes).
5.3. FlexCharge shall withhold any Settlement Amount in the event of any dispute. Once such dispute is resolved, FlexCharge shall transfer the Settlement Amount (or part of the Settlement Amount, as appropriate) to the Merchant Bank Account.
5.4. Any and all reports, Settlement Amounts, refunds and any applicable information are available to the Merchant through the FlexCharge Portal.
5.5. The Factoring Fees are quoted exclusive of value added tax (“VAT”). In case VAT or any other sales tax is or becomes chargeable, FlexCharge will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied. Further, the currency is set by the Customer location and the Merchant will bear the costs of currency exchange rates, foreign exchange differences, commissions, etc. which shall be applied by FlexCharge in its sole discretion.
6. REFUNDS AND CHARGEBACKS
6.1. The Merchant must promptly inform FlexCharge of any Refund and the Refund amount. Approved Refunds shall be reimbursed to the Customer either by FlexCharge or the Merchant. In the event the Account Payable has already been collected by FlexCharge, the reimbursement will be processed by FlexCharge. If not, the reimbursement will be processed by the Merchant, and the related Account Payable amount due by the Customer to FlexCharge will be accordingly updated or voided. It is hereby clarified that the Factoring Fees shall be paid and owed to FlexCharge including in the event of an Approved Refund, for all Account Payable processed via the Factoring Services, irrespective of the fact if the Customer is reimbursed by FlexCharge or the Merchant.
6.2. For Refunds processed more than one hundred and twenty (120) days after the date of purchase or for Approved Refunds processed more than sixty (60) days after the termination of this Agreement (to the extent FlexCharge, in its sole discretion, permits any Approved Refunds following the termination of this Agreement), the terms of this section shall not apply and FlexCharge shall have no liability to the Merchant with respect to such Refunds. Without limiting this section, any assistance FlexCharge may provide to the Merchant to effect payments to Customer for any Refund for such goods shall be at FlexCharge's sole and absolute discretion.
6.3. Merchant shall reimburse FlexCharge for any suffered Chargeback. Any reimbursement under this section is calculated as the Customer Purchase Price + a chargeback amount of 35 USD per chargeback (“Chargeback Amount”), unless otherwise defined in the Ordering Documentation.
6.4. From time to time FlexCharge, when receiving a Chargeback request, may reasonably require the Merchant to provide a proof of delivery of the goods or services, such as proof of supply of services or goods and, in case of physical goods, provide the shipping carrier name, tracking number and confirmation that the goods were delivered to the address specified by the Customer when making a transaction.
7. DATA PROTECTION
7.1. If and to the extent FlexCharge processes Personal Data or Personal Information, as such terms are defined under Applicable Laws, of EEA, UK or Swiss residents, under this Agreement, the parties undertake to comply with the Data Processing Agreement (“DPA”) available here. If and to the extent FlexCharge processes Personal Data or Personal Information on behalf f the Merchant, the US Data Processing Agreement (“US DPA”) shall apply to such processing as available here.
8. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY
8.1. Subject to Merchant compliance with the Terms imposed under the Agreement, FlexCharge hereby grants the Merchant a non-transferable, nonexclusive, worldwide license, during the Term to use and embed the Software within the Merchant Frontend.
8.2. All Intellectual Property Rights in the Factoring Services, the Software, Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with FlexCharge. Merchant shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service or any part thereof for any purpose or use it to build a competitive service or product; (ii) not represent that it possesses any proprietary interest in Service, Software or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest FlexCharge's Intellectual Property Rights or infringe them in any way; (iv) except as specifically permitted herein, not copy any part or content of the Factoring Services, reports or documentation other than for Merchant's own internal business purposes; and (v) not remove the copyright, trademark and other proprietary notices contained on or in Factoring Service or Software.
8.3. All Intellectual Property Rights in the Merchant Information, Merchant Frontend and in any modifications, enhancements and derivatives thereof lie exclusively with the Merchant or its licensors. Merchant permits FlexCharge to use their name, logo, and details of their website in any of FlexCharge's marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn, and Instagram), and in directory listings of FlexCharge's merchants. Merchant can however notify FlexCharge that they would like their name, logo and/or details of their website removed from this marketing material or would prefer us to use a different image in our directory listings, and FlexCharge will do so as soon as reasonably practicable. Merchant grants FlexCharge a fully-paid, non-exclusive, non-transferable limited license, during the Term, to (i) use the Merchant Information solely for the provision of the Factoring Services hereunder; and (ii) use their legal name or trade name, logo and details of their website in the Customer flow and other customer interactions. Merchant shall retain all Intellectual Property Rights in such name. Other than the foregoing license rights, FlexCharge shall not obtain any right, title, or other interest in or to Merchant name by virtue of this Agreement. Upon termination of this Agreement, all license rights conveyed by Merchant to FlexCharge shall cease, and all such rights shall revert to Merchant.
8.4. The receiving party agrees (i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of this Agreement (and with respect to trade secrets- in perpetuity) and shall supersede any previous confidentiality undertakings between the parties.
9. DISCLAIMER; LIMITATION OF LIABILITY
9.1. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, FLEXCHARGE PROVIDES THE FACTORING SERVICES, SOFTWARE AND DOCUMENTATION TO MERCHANT ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND FLEXCHARGE EXPRESSLY DISCLAIMS ALL WARRANTIES - STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. FLEXCHARGE FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE FACTORING SERVICES OR ANY RELATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
9.2. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD OR BREACH OF CONFIDENTIALITY, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDERARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY MERCHANT TO FLEXCHARGE DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. FlexCharge shall defend, indemnify and hold harmless Merchant and its Representatives from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) (collectively “Losses”) arising out of or related to any claim that the Software infringes any third party intellectual property right. Merchant shall defend, indemnify and hold harmless FlexCharge and its Representatives from and against any Losses incurred by any third-party, including Customers, arising out of Merchant breach of this Agreement. Indemnification hereunder shall be conditioned upon the indemnified party’s responsibility to: (i) notify the indemnifying party of the claim immediately upon becoming aware thereof, (ii) allowing the indemnifying party to assume full control of the defense and settlement of such claim, and (iii) reasonably cooperating with the indemnifying party in the defense and settlement of the claim.
10. TERM AND TERMINATION
10.1. This Agreement shall commence upon the Effective Date (as defined under the Ordering Documentation), and will continue until terminated by either party according to this Section (“Term”).
10.2. Either party can terminate this Agreement for convenience giving 30 days written notice to the other party.
10.1. Either party may terminate this Agreement immediately by giving written notice to the other party if: (i) the other party breaches a material provision of this Agreement and fails to cure the breach within ten (10) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
10.3. FlexCharge may suspend Merchant's access to the Services, by giving the Merchant written notice if: (i) necessary to protect FlexCharge's rights, Services or Software, against any harm, including but not limited to fraud or malicious activity, security risk; and (ii) the Merchant is subject to an Insolvency Event; (iii) FlexCharge is unsuccessful in crediting Merchant's account designated by the Merchant’s ACH Authorization; and (vi) FlexCharge reasonably believes that continuing to process Account Receivables is in breach of Applicable Laws.
10.4. Without derogating from the above, FlexCharge may withhold or setoff Settlement Amounts (“Setoff Amount”) due to the Merchant in connection with or against amounts which are due or may be due to FlexCharge in connection with the Merchant’s material breach of this Agreement, Chargebacks, Approved Refunds or any illegal or fraudulent conduct. Following 90 days post termination FlexCharge will return such Setoff Amount to Merchant.
10.5. Upon termination of this Agreement, Merchant will immediately cease use of the Factoring Services and all rights and license granted herein by FlexCharge shall be terminated immediately, each party shall return to the other party or destroy (at disclosing party’s option) all of the other party's Confidential Information in its possession and any outstanding undisputed Fees shall become due and payable.
10.6. Upon the termination of this Agreement any sections which by their nature survive termination, shall survive any termination or expiration of this Agreement.
11.1. FlexCharge may issue publicity or general marketing communications concerning its involvement with the Merchant, including publication on FlexCharge's website.
11.2. All notices or other communications hereunder shall be in writing and given in person, by registered mail or email transmission with written confirmation of receipt, addressed to the address set forth:
For FlexCharge: C/O Sagent Management, 691 S. Milpitas Blvd, Suite 212, Milpitas, CA 95035, email: email@example.com
For the Merchant: as defined in the Ordering Documentation.
All notices and other communications delivered in person or by courier service shall be deemed to have been given on the business day following transmission, and those sent by registered mail shall be deemed given three calendar days after posting.
11.3 This Agreement constitutes the entire agreement between Merchant and FlexCharge and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. FlexCharge reserves the right to periodically revise these Terms and Conditions at our sole discretion; such changes will be effective immediately upon the display of the revised Terms and Conditions. The last revision date will be reflected in the “Last Updated” header above. When material changes to these Terms and Conditions occur, we will provide you with prior notice.
11.4. Merchant shall not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.
11.5. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect.
11.6. A party ("Affected Party") shall not be deemed to be in breach of this Agreement or otherwise liable to the other party ("Non-affected Party") for any delay in performance or any non-performance of any of its obligations under this Agreement (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event of Force Majeure provided that the Affected Party has used reasonable endeavors to mitigate the effect of the event of Force Majeure and to carry out its obligations under this Agreement in any other way that is reasonably practicable.
11.7. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance.
11.8. This Agreement shall be governed by the laws of the State of Delaware notwithstanding any conflict of law rules, and the Federal Arbitration Act and federal arbitration law apply to this Agreement. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, shall be determined by binding arbitration in Wilmington, Delaware before one arbitrator, to be mutually agreed upon. Any arbitration under this provision must be on an individual basis and class actions are not permitted. The arbitration shall be administered by Judicial Arbitration and Mediation Services pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the “Expedited Procedures” described therein. Judgment on the award may be entered by any court having jurisdiction. The Parties each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of intellectual property. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses, administrative fees and expenses, and preparation and presentation of evidence at the arbitration. If for any reason this arbitration clause is deemed inapplicable or invalid, both Merchant and FlexCharge waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages, any right to pursue any claims on class or consolidated basis or in a representative capacity, and any right to a jury trial.
11.9. No failure or delay by a party in exercising any of its rights hereunder or under Applicable Law will be construed as a waiver or release of that right or any other right or remedy, nor will any single or partial exercise of such rights preclude or restrict the further exercise of such rights. A waiver of any breach of any provisions of this Agreement will not constitute a waiver of any other breach, and will not affect the other provisions, of this Agreement. Any waiver must be in writing to be effective.
11.10. Termination of this Agreement shall not affect either of the party’s accrued rights or liabilities or affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination (including, without limitations, provisions relating to payment of Fees and other amounts due, indemnities, and confidentiality undertakings).
11.11. The Merchant and FlexCharge are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. Neither party has authority to enter into agreements of any kind on behalf of the other.
11.12. A person who is not a party to this Agreement shall have no rights under this Agreement or to enforce any term of this Agreement.