Decline Recovery Terms and Conditions

1. DEFINITIONS

1.1. ACH Authorization means the authorization Merchant grants to Flex, by providing its bank account details (including bank account name, bank routing number, and bank account number) to debit or credit its Merchant 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 Portal and the Decline Recovery 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, Article 9 to the Uniform Commercial Code, and the Federal Trade Commission Act.

1.4. Approved Transaction means the Failed Transaction successfully processed by Flex, using the Merchant Processing Account. An Approved Transaction might include a number of payments retries, performed on the Merchant Processing Account.

1.5. Card Network Rules means all rules, regulations and by-laws of the card network, as introduced and amended from time to time, if applicable.

1.6. 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.

1.7. Customer means a person or entity that conducted a sale, purchase order, or other contract obligation with the Merchant that created the Failed Transaction.

1.8. 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, KYC, data contained in a credit check report, etc. as applicable, shared by Merchant with Flex or, if applicable independently collected by Flex from the Customer or a credit bureau for the purpose of conducting the Decline Recovery Services.

1.9. Customer Purchase Price means the Customer purchase price of the goods or services purchased from the Merchant, including applicable taxes, shipment fees or other fees. The sale taxes, price, shipping and handling prices are all determined by the Merchant prior to referring the Failed Transaction to Flex.

1.10. Documentation means any technical and operational manuals and guidelines issued by Flex from time to time.

1.11. Decline Recovery Fee (“Fee”) means the consideration paid (or payable) to Flex by the Merchant for the Decline Recovery Services including taxes and expenses, for the Approved Transactions, all as set forth and agreed between the Parties in the Ordering Documentation.

1.12. Failed Transaction means a failed transaction covering a payment request for merchandise, sales, purchase order, works or services.

1.13. Decline Recovery Services means the services provided by Flex under this Agreement and as specified in the Ordering Documentation, as well as the Portal, the Software, the Documentation and any direct or ancillary service provided by Flex to the Merchant as detailed under Section 2 herein below, including support services.

1.14. 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.

1.15. 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;

1.16. Interchange Rate (“IC”) means 2% of the Customer Purchase Price.

1.17. Invoice means Flex’s invoice issued to Merchant for payment of the Flex Fees, as further detailed in Section ‎6 hereof.

1.18. Merchant Assets means the assets Merchant integrate with the Software in order to receive the Decline Recovery 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 which the Merchant authorizes Flex to debit funds for the payment of the Fee pursuant to the ACH Authorization.

1.20. Merchant Processing Account means an account established by the Merchant with a payment processor or acquiring bank, enabling the Merchant to accept, process, and settle electronic payment transactions.

1.21. 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.

1.22. Portal means the online portal provided by Flex which enables the Merchant, or the Authorized Users, to view the information, transactions, Fees, etc.

1.23. Merchant Information means information provided by Merchant during the registration or onboarding of the Portal, including without limitation, contact information, representatives’ names, contact information and billing information associated with the 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 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. ROSCA means the Restore Online Shoppers Confidence Act.

1.28. Payments Recovered means the total amount of the Approved Transactions per time period, as reported by Flex, and unless otherwise specified in the Ordering Documentation.

1.29. Software means Flex’s software enabling Merchant to tackle failed payment transactions suffered by their Customer.

2. THE DECLINE RECOVERY SERVICES

2.1. Flex shall determine, in its sole discretion, among the Failed Transactions which transactions is eligible for the processing through the Decline Recovery Services as an Approved Transaction.

2.2. Subject to the terms herein, Merchant shall integrate the Software within the Merchant Asset for the purpose of receiving the Decline Recovery Services.

2.3. 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 to the Portal, the Software or any Customer Data resides therein. The Merchant shall install needed updates and shall comply with reasonable instructions of Flex as provided from time to time.

2.4. Flex will issue the credentials granting the Merchant and its Authorized Users access to the Portal providing a dashboard and information regarding the Decline Recovery Services, including support services provided by Flex. Merchant hereby agrees to restrict use and access to the Portal 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. The Merchant is solely responsible for all activities in the Portal, an Authorized User or a third party under Merchant’s control, including for maintaining adequate security and control of any credentials used in order to access the Portal, and agrees to notify Flex immediately of any unauthorized use. Flex will not be held responsible for any unauthorized access by such parties within the 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 Portal. Flex is not responsible for any harm caused by the Authorized Users, including individuals who were not authorized to have access to the Portal but who were able to gain access because credentials were disclosed or any access was not terminated on a timely basis.

3. MERCHANT OBLIGATIONS

3.1. The Merchant shall not act in any manner that could prevent or delay the payment of the Approved Transaction 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 Flex nor delay the execution of such obligations.

3.2. The Merchant shall provide Flex 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 Decline Recovery Services. By accepting this Agreement, Merchant agrees that any electronic communication satisfies any applicable legal communication requirements, including that such communications be in writing.

3.3. The Merchant shall authorize Flex to initiate electronic credit and debit entries to the Merchant 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. Merchant represents, warrants, and certifies to Flex that the Merchant Account identified on the ACH Authorization: (i) is a business deposit account; (ii) is not used for any personal, family, or household purposes; (iii) is owned by the Merchant for the applicable Account Payable; and (iv) is active, have not been suspended, declined or limited otherwise. Merchant represents and warrants to promptly, without undue delay, notify Flex to the extent its Merchant Account was limited.

3.4. The Merchant shall authorize Flex to initiate and process payment transactions with the Merchant Processing Account(s) made available by the Merchant to Flex for the Decline Recovery Service. Merchant acknowledges that Flex is not liable for any fees, charges, or direct or indirect losses relating to any transaction conducted on the Merchant Processing Accounts, including disputes, chargebacks, or fraudulent transactions. By using the Decline Recovery Service, the Merchant hereby releases Flex from any liability arising from the use of the Merchant Processing Accounts.

3.5. Merchant is solely responsible for maintaining accurate Customer Data and ensuring that any such Customer Data being shared through the Decline Recovery Services by Flex is current and valid. Merchant hereby represents and warrants that all Customer Data shared under this Agreement will be accurate and complete in all material respects.

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 (i) 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); (ii) 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 (iii) Merchant’s customer service email and telephone contact details;

3.6.3. Provide Customers with the Merchant’s consumer data privacy policy, security capabilities and policy for the transmission of payment card details including a disclosure of sharing or transferring data to third party service providers, such as Flex;

3.6.4. Where and if the Customer payment is declined, if applicable, disclose to Customer the fact that the Failed Transaction may be processed by Flex and shall, if applicable, add disclosures with the Merchant terms, privacy policy or any visible place within the Merchant Asset disclosing the use of the Decline Recovery Services; Provide any other disclosures necessary under Applicable Law or as required by Flex under the Ordering Documentation, and from time to time in order to comply with the Applicable Law; and

3.6.5. Provide all necessary disclosures, and obtain all necessary consents, permissions and rights, if and to the extent applicable, for collecting personal information or sharing such information with Flex, all as detailed in the data processing addendum available here.

3.7. The Merchant shall fully cooperate with Flex, or any regulatory or financial authority, to investigate any suspected illegal, fraudulent, or improper activity or transaction. the Merchant undertakes, represents and warrants that the Failed Transactions are initiated on a real commercial relation. Merchant is specifically prohibited from conducting any transaction which did not result from an act between the Merchant and a Cardholder (as defined under the Card Network Rules); and the Merchant shall, perform anti-money laundering checks and controls including performing know-your-customer (‘KYC’) checks on Customers, in accordance with Applicable Law,

3.8. Notwithstanding the above, the Merchant shall not use the Decline Recovery Services for prescription or non-prescription drugs; illegal downloads, content or goods; illegal gambling; goods or Decline Recovery 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 Decline Recovery Services prohibited by Applicable Law.

3.9. The Merchant acknowledges and agrees that: (i) Flex is not a bank nor a seller, agent or merchant in relation to the Merchant’s Decline Recovery Services and goods; (ii) Merchant remains solely responsible for the good or Decline Recovery 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 Flex in respect of any loss, liability, claim, expenses of any kind (including legal and professional costs) suffered or incurred by Flex in relation to such dispute of the Merchant’s goods or Decline Recovery Services. Notwithstanding the above, Flex reserves the right to contact the Customer directly in order to request an alternative payment method.

4. FLEX’S OBLIGATIONS

4.1. The Decline Recovery 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. Flex shall use commercially reasonable efforts consistent with industry standards to maintain the availability of the Software and Decline Recovery Services in a manner that minimizes errors and interruptions.

4.3. The Decline Recovery Services or any part of this Agreement shall not be inconsistent with any obligation Flex may have to any other person or entity. Flex 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.

5. REPRESENTATION AND WARRANTIES

5.1. Both Parties represent and warrant that it is and will remain in full compliance with all Applicable Laws which apply to its business activity conducted under this Agreement, and has all needed rights and licenses to enter into this Agreement.

6. PAYMENTS

6.1. In consideration of the Decline Recovery Services, the Merchant shall pay Flex the applicable Fees as outlined under the Ordering Documentation.

6.2. The Merchant shall provide Flex with complete and accurate information regarding the Merchant Bank Account and Merchant Processing Account(s). The Merchant will notify Flex in writing in advance of any change (other than general administrative changes).

6.3. Flex shall Invoice Merchant for the Fees on a monthly basis following the completion of each calendar month, unless otherwise agreed in writing. Each Flex Invoice shall contain a breakdown of Approved Transactions and applicable Fees. Flex Invoices shall be issued to the Merchant’s designated billing contact outlined in the Ordering Documentation and shall be deemed final and approved unless Merchant has sent a dispute notice within 10-days following the receipt of the Invoice. If the Merchant uses as well the factoring services from Flex, and the settlement amount is enough to cover the Decline Recovery Fees, Merchant authorize Flex to deduct such amount from the settlement amount of the factoring services.

6.4. Late payments will bear 1.5% monthly interest fee, and Merchant shall be liable to reimburse Flex for any collection costs, including attorney fees.

6.5. The Fees are quoted exclusive of value added tax (“VAT”). In case VAT or any other sales tax is or becomes chargeable, Flex 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 Flex in its sole discretion.

7. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY

7.1. Subject to Merchant compliance with the Terms imposed under the Agreement, Flex hereby grants the Merchant a non-transferable, nonexclusive, worldwide license, during the Term to use and embed the Software within the Merchant Asset.

7.2. All Intellectual Property Rights in the Decline Recovery Services, the Software, Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Flex. 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 Flex’s Intellectual Property Rights or infringe them in any way; (iv) except as specifically permitted herein, not copy any part or content of the Decline Recovery 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 Service or Software.

7.3. All Intellectual Property Rights in the Merchant Information, Merchant Asset and in any modifications, enhancements and derivatives thereof lie exclusively with the Merchant or its licensors. Merchant permits Flex to use their name, logo, and details of their website in any of Flex’s marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn, and Instagram), and in directory listings of Flex’s merchants. Merchant can however notify Flex 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 Flex will do so as soon as reasonably practicable. Merchant grants Flex a fully-paid, non-exclusive, non-transferable limited license, during the Term, to (i) use the Merchant Information solely for the provision of the Decline Recovery 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, Flex 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 Flex shall cease, and all such rights shall revert to Merchant.

7.4. 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.

8. DISCLAIMER; LIMITATION OF LIABILITY

8.1. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, FLEX PROVIDES THE DECLINE RECOVERY SERVICES, SOFTWARE AND DOCUMENTATION TO MERCHANT ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND FLEX EXPRESSLY DISCLAIMS ALL WARRANTIES – STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHENTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. FLEX FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE DECLINE RECOVERY SERVICES OR ANY RELATED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

8.2. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD 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 FLEX 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 DECLINE RECOVERY 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.

8.3. Flex 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 Flex 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.

9. TERM AND TERMINATION

9.1. 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”).

9.2. Either party can terminate this Agreement for convenience giving 30 days written notice to the other party. This Agreement shall automatically terminate if the Decline Recovery Services remain unused for a continuous period of ninety (90) days, unless otherwise agreed in writing by the parties.

9.3. 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.

9.4. Flex may suspend Merchant’s access to the Decline Recovery Services, by giving the Merchant written notice if: (i) necessary to protect Flex’s rights, Decline Recovery Services or Software, against any harm, including but not limited to fraud or malicious activity, security risk; (ii) the Merchant is subject to an Insolvency Event; (iii) Merchant fails to pay Flex Fees as outlined in Section ‎5 hereof; and (vi) Flex reasonably believes that continuing to process Failed Transaction is in breach of Applicable Laws.

9.5. Upon termination of this Agreement, Merchant will immediately cease use of the Decline Recovery Services and all rights and license granted herein by Flex 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.

9.6. Upon the termination of this Agreement any sections which by their nature survive termination, shall survive any termination or expiration of this Agreement.

10. GENERAL

10.1. Flex may issue publicity or general marketing communications concerning its involvement with the Merchant, including publication on Flex’s website.

10.2. 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 Flex: legal@flexfactor.io

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.

10.3. This Agreement constitutes the entire agreement between Merchant and Flex and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. Flex 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.

10.4. 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.

10.5. 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.

10.6. Merchant must not access or use the Decline Recovery Services: (i) in or relating to any country or territory that is the subject or target of comprehensive trade or economic sanctions imposed by the U.S. government (“Sanctions”); (ii) for the benefit or on behalf of any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State (including OFAC’ s List of Specially Designated Nationals and Blocked Persons), or any person owned 50 percent or more by such person; or (iii) otherwise in violation of any U.S. Sanction, embargo, prohibition or restriction.

10.7. 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.

10.8. 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.

10.9. 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 Decline Recovery 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 Flex 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.

10.10. 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.

10.11. 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).

10.12. The Merchant and Flex 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.

10.13. 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.