Last Updated: 25 May 2018
This Merchant Agreement , effective as of the Effective Date, is between Surge Ventures Inc. doing business as Fresha ( "we" or "us" ) and the Merchant ( "you" or "your" ) for the Services through Fresha Marketplace. Fresha operates the www.fresha.com booking marketplace for health and beauty services, which is available through a website and mobile application.
By opting in for and using Fresha Marketplace functionality of your Shedul account, you agree that you are authorized to accept the terms set forth below on behalf of yourself and your company and agree to this Merchant Agreement. If you do not agree to be subject to this Merchant Agreement, you should not use the Services nor create a merchant account with Fresha. By continuing to use the Services, you agree to be bound by this Merchant Agreement.
Merchants offer Merchant Services and provide End Users with the convenience of booking appointments through Fresha Marketplace at www.fresha.com or Fresha mobile applications. Fresha provides Merchants with a venue to post availability of Merchant Services and for End Users to learn when these services are available, book an appointment for the desired Service, and, when applicable, to book appointments and pay for Merchant’s Services through Fresha Marketplace.
Through Shedul, Fresha provides Merchants with various services, and features that facilitate online scheduling of appointments for services, communication between Merchants and End Users, and customer relationship management tools.
Therefore, in consideration of the mutual covenants of the Parties and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows:
Terms in the preamble have their assigned meanings and each of the following terms has the meaning assigned to it.
"Agreement" or "Merchant Agreement" means this Merchant Agreement, which may be amended at any time and without notice by Fresha.
"Appointment Time" means the specific date and time of scheduled Order.
“Booked and Paid Order” means an Order that an End User has paid for and remitted payment through Fresha Marketplace.
"Cancellation Period" means the advance notice prior to the scheduled appointment time required to effect an appointment cancellation without cancellation fee. The cancellation period is determined by each Merchant during profile setup.
"Chargeback" refers to a charge drawn against Fresha, its Managed Accounts, or Merchant as a result of a dispute by a purchaser, card-holder, or Consumer through our Payment Processor.
"Data Protection Addendum" means the provisions set out under Schedule 1 to this Agreement.
"European Economic Area" or "EEA" means all member states of the European Union from time-to-time, together with all countries who are part of the European free Trade Agreement ( "EFTA" ), being Iceland, Liechtenstein, and Norway as at the date of this Agreement.
"Effective Date" means the date Merchant registers for a merchant account with Fresha.
"End User" or "Consumer" means users of The Services other than Merchants; whose intention is to book appointments.
"Fresha Application" means mobile application providing access to Fresha Marketplace.
"Fresha.com DMCC" is a legal entity which provides The Services to the Merchants, being a subsidiary of Surge Ventures Inc.
"Fresha Marketplace" means comprehensive marketplace owned by Surge Ventures Inc., available through Fresha Website and Fresha Application.
"Fresha Website" means internet website www.fresha.com providing access to Fresha Marketplace.
"Managed Accounts" refers to Merchant’s Stripe Connect subaccount established through Fresha.
"Merchant" means service provider using the Services to promote and sell services and products to End Users.
"Merchant Offering" means the Merchant Services being delivered from Merchant at a specified date and time.
"Merchant Services" means list of services offered by Merchants to the End Users.
"Order" means an End User scheduling an appointment, purchasing a voucher, purchasing a package of Services, or purchasing a membership entitling Consumer to Merchant Services or discounts on Merchant Services; Order can also mean a Merchant scheduling an appointment for a consumer for Merchant Services; and, for certain Merchants, taking payment for the Merchant Services through the Fresha Marketplace.
"Payment Processor" for the purposes of this Agreement refers to Stripe, Checkout Technology Ltd, Checkout MENA FZ-LLC and other Payment Processors supporting Fresha with the provision of Payment Services.
"Payment Services" refers to all credit or debit card processing services, including charging, refunding, reversing, and adjusting transactions as well as all payouts and disbursements provided by Fresha and its Payment Processors.
"Platform" refers collectively to Fresha Application, Fresha Website, Shedul Website, any links contained within or otherwise available through external hyperlinks within Fresha Application, Fresha Website, Shedul Website.
"Refund" refers to any transaction reversed by Merchant, or in some cases, the Client or Fresha.
"Reserve Account" refers to a Stripe holding account managed by Stripe.
"Services" mean services provided by Surge Ventures Inc. to Consumers through Fresha Marketplace and to Merchants through Fresha Marketplace and Shedul.
"Service Fee" means a fee charged by Fresha to Merchants for the use of The Services.
"Shedul" means a solution for Merchants to manage their calendars, appointments and orders available through Shedul Website. Being an integral part of the Services for Merchants.
"Shedul Website" means internet website www.shedul.com or external hyperlinks, providing access to the Services.
"Surge Ventures Inc." or "Fresha" means the legal entity being sole owner of Fresha Website, Shedul Platform and Fresha Application, doing business as “Fresha”.
"Surge Ventures" means Surge Ventures Inc with it’s all subsidiaries associates and branches.
"Stripe" has the meaning give to it in Section 4(d)(ii) of this Agreement.
"Total Remittance Amount" means the aggregate amount due to Merchant when Consumer makes payment for the Merchant Services through the application for a Booked and Paid Order equal to: (a) the total amount collected by Fresha from the Consumer for such Booked and Paid Order; less (b) Service Fee.
(a) Shedul is an integral part of the Fresha Marketplace solution provided to Merchants. It is a comprehensive online booking and customer records management tool, including creating and modifying appointments for their clients regardless of whether or not they were booked through Fresha Marketplace. Shedul allows merchants to place, accept, conclude, keep records of and manage products and services provided.
(b) Merchants with active Shedul account can upgrade to the Services to promote their services among Fresha community. Consumers who signed up to Fresha can make and edit appointments to Merchants directly through Fresha Marketplace.
(c) Merchants using Shedul may have their business and Merchant Services listed in the Fresha Marketplace by default, but they may delist their profile from the Fresha Marketplace at any time through Shedul account settings.
(d) Shedul users authorize Fresha to use Merchant's Shedul Calendar details for the following purposes:
(a) Fresha Marketplace has been designed to streamline and simplify the process of appointment bookings in health and beauty business. It allows Merchants to present their offer, hold extensive communication with their own clients, and use different promotion features to maximise their own revenue. End Users and Consumers can review, book, rebook or cancel appointments through Fresha Website or Fresha Application.
(b) When a Consumer books an Order on Fresha Marketplace, details of the Merchant Services will be sent to the Consumer and Merchant by Fresha electronically. The Consumer may then execute the Order for Services from the Merchant.
(c) Merchant is considered the seller of the Merchant Services described in the Order, while Fresha is solely responsible for promoting these Merchant Services.
(a) Information Transfer. Merchant agrees to provide all information and materials as may be reasonably required by Fresha in connection with its transactions conducted on, through, or as a result of use of Fresha Marketplace. Fresha has the right to suspend or terminate any Merchant’s account if the Merchant fails to provide the required information and materials.
(b) Orders. Merchant shall honour all Orders that are scheduled using Fresha. Merchant must honour the terms of the Order, including any listed Appointment Time.
(c) Expiration. Merchant is solely responsible for supplying all Merchant Services specified in the Order. Merchant is responsible for accurately listing any applicable Expiration Date for each Order. If Merchant omits an Expiration Date for the Order, Merchant shall accept the Order at any time. Additionally, Merchant shall honor Orders beyond their stated expiration dates as may be required under applicable law.
(d) Transaction Terms. Merchants are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of Fresha Marketplace, including, without limitation, terms regarding payment, cancellations, fees, and taxes.
(e) Service Fulfillment. If a Consumer only receives Merchant Services that are less than the value of the amount paid for the Order, Merchant shall issue a credit note and process a refund in the amount equal to the difference between the value of the service and the payment. Merchant may not impose any extra or additional fees or charges that contradict or otherwise limit the terms of any Order.
(b) Third Party and Affiliate Websites and Applications. Fresha may publish or promote any information acquired under this Agreement, including calendar availability, business information, service descriptions and prices, on any third-party websites or mobile applications. Fresha may also make it possible to book and/or pay for Merchant Services through an embedded widget or Application Program Interface (API) on third-party websites or mobile applications. Fresha is not obligated to promote all Merchant Services using these third party and affiliate websites and mobile applications.
(c) Profile Updating. Fresha may add, edit, rephrase, or update information, including services, variations of services, pricing updates, staff member names, photographs and other information, on a Merchant's Fresha profile, so long as Fresha reasonably believes the information is accurate. Fresha may use information available on Merchant's own website, Facebook or other social media pages, or third-party marketplaces, including Yelp and other consumer review websites, or received through Shedul. Merchants may request Fresha to stop updating their profiles by emailing [email protected]
(d) Deactivation from Fresha Marketplace. A Merchant can, at any time, deactivate the marketing of their services in the Fresha Marketplace via the Merchant’s account settings.
(e) Termination. Fresha may terminate the publication or promotion of the Merchant Services at any time.
(f) Liability. Fresha neither represents either the seller or the buyer in any transactions, nor does it control — and is not liable to or responsible for — the quality, safety, lawfulness or availability of the products or services offered on Fresha Marketplace or the ability or inability of the Merchants to complete a sale or the ability of buyers to complete a purchase. Merchant acknowledges and agrees that it is fully assuming the risks of conducting any purchase and sale transactions through Fresha Marketplace or Merchant Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to Merchant Services that are the subject of transactions booked through Fresha Marketplace. Each Merchant agrees that Fresha shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any of the foregoing risks.
(g) Indemnification. In the event that any user has a dispute with any party to a transaction, the Merchant agrees to release and indemnify Fresha (and its agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such dispute and transaction.
(a) To support Merchants, Fresha introduces Payment Services that allow to accept credit and debit card payments from Consumers and receive bank account transfer deposits for Orders. A Fresha account is required to use Payment Services. Other identifying information as outlined in this Agreement may be needed to use Fresha Payment Services.\
(b) Through selected Payment Processors, Fresha provides Merchants with the following services: collecting card-based payments from End Users, issuing refunds, reversals, adjustments, and chargebacks; as well as electronic disbursements to your Bank Account and Reserve Account (if required by the Payment Processor), withholding Fresha fees, verification, underwriting, and reporting. Fresha, as outlined in this Agreement, is authorized to directly manage your account and activity with our Payment Processor to provide Payment Services in accordance with the Terms of the Payment Processor. Neither Fresha nor the Payment Processors are a bank or a money services business ( "MSB" ), nor does either party offer banking or MSB services. In addition, we do not assume any liability for the products or services purchased using our Payment Service.
(c) It is Fresha responsibility to obtain End User consent to be billed in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., ( “Visa” ) and MasterCard International Incorporated ( “MasterCard” ) or other applicable card network (collectively, the “Payment Networks” ) payment rules.
(d) Fresha Payment Services are available in the following countries:
(e) In order to use Fresha Payment Services, Merchant must agree to this Agreement, accept the terms of the Payment Provider and provide the Payment Provider with any information and documents required to setup an account.
(f) At any point, Fresha, or our Payment Processor may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Payment Services, including without limitation:
(a) By accepting this Agreement and using Fresha Payment Services, you authorize Fresha to receive, deposit, hold, and disburse funds on your behalf for all credit card transactions processed via Fresha and the Payment Services, including transactions for appointment bookings, products, vouchers, and packages. You also authorize Fresha to hold funds in a Reserve Account pending disbursement to you in accordance with the terms of this Agreement. Furthermore, you authorize Fresha to debit, withdraw, and reverse disbursements as defined below.
(b) You grant us a security interest in and lien on any and all funds held in any Reserve Account or other Managed Account, and also authorize us to make any withdrawals or debits from your Account, without prior notice to you, to collect amounts that you owe us under this Agreement, including without limitation for any reversals of deposits or transfers made to your Fresha Account. You agree you are not entitled to any interest or other compensation associated with the funds held in the Reserve Account pending settlement to your designated Bank Account, that you have no right to direct that Reserve Account, and that you may not assign any interest or grant any security interest or lien on the funds in the Reserve Account other than to Fresha as outlined directly above.
(c) You agree to submit any and all refunds and adjustments for returns of your products and services through Fresha Payment Services to the Consumer’s card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will:
(d) Full refunds must be for the exact amount of the original transaction including tax and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to End User for postage costs incurred for product returns. Refunds processed through Fresha Payment Services must be submitted within sixty (60) days of the original transaction and in all cases, within three (3) days of approving the Consumer’s refund.
(e) Fresha reserves the right to disapprove and cancel any refund request submitted for processing through the Payment Services if your Reserve Account balance is zero or negative, if you otherwise have any outstanding balance owed to Fresha, for any reason outlined in this paragraph, or at Fresha’s reasonable judgement on security breach or fraud risks or other concerns.
(a) Merchant authorizes Fresha to withhold payments or debit Merchant’s Reserve Account, bank account, or any other payment instrument for the full amount of any reversed transaction, including without limitation transactions that are:
(b) Merchant assumes all liability for Chargebacks and any applicable fees charged to Fresha for Chargebacks.
(c) You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Network or financial institution as a result of your activities.
(d) In the event a Chargeback is successfully contested and is returned to Fresha, Fresha will credit Merchant’s account with the full returned amount less any applicable Service Fees as defined in this agreement.
(e) Merchant agrees to cover all attorney’s fees, court costs, and collection costs (including those imposed by third-party debt collectors) associated with any Fresha collections efforts in the event Merchant refuses or is unable to pay any balance owed to Fresha (including Chargebacks, refunds, or other withdrawals as outlined in this agreement). Merchant acknowledges and agrees that Fresha may employ independent third-party debt collectors or law firms assist with the collection of all balances owed.
(f) In the event Merchant accrues any balance owed to Fresha and our Payment Processor, all debts to Fresha shall take priority.
(a) Merchant agrees to assist Fresha when requested to investigate any transactions processed through, or related to, their account.
(b) Merchant agrees to produce records that assist Fresha in contesting Chargebacks, including email correspondence, proof of service, testimony, or other records as needed. Records must be received prior to established response deadlines, typically within 15 days after the Chargeback is issued. Merchant’s failure to provide documentation in a timely manner may result in an irreversible Chargeback.
(a) If Fresha needs to investigate or resolve any pending Consumer dispute filed with us related to your Fresha account, or if Fresha has reason to expect a Chargeback or payment dispute with a customer of the Merchant resulting from a transaction or transactions under your account, Fresha reserves the right to temporarily withhold funds from your Reserve Account or other deposits until Fresha reasonably believes, at our sole discretion, that the risk of receiving a chargeback or dispute has passed.
(b) All transactions, deposits, refunds, and other Merchant activity are subject to review for risk and compliance purposes and deposit to Merchant’s bank account may be delayed or postponed if necessary.
(c) Should Fresha need to conduct an investigation or resolve any pending dispute related to your Account, Fresha may defer payout or restrict access to Merchant’s funds for the entire time it takes Fresha to do so. Fresha may also defer payout or restrict access to Merchant’s funds as required by law or court order, or if otherwise requested by law enforcement or governmental entity.
(a) In order to use Fresha Payment Services, Fresha may request identifying information as needed to administer payouts, verify your identity, and comply with applicable regulations (such as Know Your Customer laws), or in accordance with our Payment Processor and Payment Network’s policies.
(b) You may choose to register as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Payment Services, you must agree to this Agreement on behalf of the business. If you have so agreed, the term "you" will mean you, the natural person, as well as the business you represent. You understand that by registering for Payment Services, you are also registering for Payment Provider Account, and that you are simultaneously providing your information to Fresha, and to Payment Provider.
(c) As part of your registration, you must provide the legal name under which you do business (which may be the business's legal name or a "doing business as” name).
(d) Fresha requires that you provide accurate business details required in Your country for proper identification. This may be Employer Identification Number ( “EIN” ), Tax ID, and/or social security number ( “SSN” ), date of birth, and your business’ Bank Account number and routing number. YOUR EIN, TAX ID, OR SSN MUST BE THE NUMBER ASSOCIATED WITH YOUR REGISTERED BUSINESS AND BE THE SAME NUMBER ON FILE WITH YOUR BUSINESS BANK ACCOUNT. The provided SSN and date of birth must be the same as the registered business owner or Bank Account holder. Fresha is not responsible for delays in payouts, or payouts sent to the wrong account, resulting from incorrect information provided during registration or activation. Fresha supports only businesses. Fresha reserves the right to suspend or terminate your account if you have provided inaccurate, untrue, incomplete information, or if you refuse to provide their Business Information.
(e) We may also ask for additional information to help verify your identity and assess your transaction and business risk including business invoices, a driver's license or other government-issued identification, or a business license. We may ask you for financial statements. We may request your permission to do a physical inspection at your place of business and to examine books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five days may result in suspension or termination of your account or access to Fresha Payment Services, or delays in (or holds on) payouts. You authorize us to retrieve additional information about you from third parties and other identification services.
(f) By accepting this Agreement, you authorize Fresha to retrieve information about you through third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for an Account.
(g) You agree that Fresha is permitted to contact and share information about you and your account with our Payment Processor. This includes sharing information about your transactions for regulatory or compliance purposes, use in connection with the management and maintenance of our Payment and Payment Services, to help our Payment Processor create and update their customer records about you and to assist them in better serving you, and to conduct Fresha's and the Payment Processor’s risk management process.
(h) Payment processing services for Merchants on Fresha Marketplace are provided by external Payment Processors and are subject to their terms and conditions. By agreeing to this Agreement or continuing to operate as a Merchant on Fresha Marketplace, you agree to be bound by the Processors’ Agreements. For a full description of Payment Processor Underwriting processes and Agreements, please see at:
(i) You agree to notify us immediately of any changes to your trade name, bank account, other changes in personal or business information, or the manner in which you accept payment. Failure to notify us prior to these changes taking effect, and while still using the Payment Services, may lead to service interruptions or other complications. Fresha takes no responsibility for any disputes, conflicts, interruptions, or delays arising from such changes.
(a) Merchants will receive payouts to the designated Reserve Account and Bank Account in the amount of the transaction charged less Service Fee, any other Fresha fee (Total Remittance Amount), or other withholding as described above. The payouts will be made to Merchant’s bank account you provide in your Fresha registration. The actual timing of the transfers to your bank account of the settling funds will be subject to the Payout Schedule as defined below.
(b) "Payout Schedule". Payout schedule refers to the time it takes for us to initiate a deposit to your bank account for funds due to you from the Payment Services. For settled transactions due to you, Fresha will initiate transfer of funds (less any applicable Service Fee, Chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule.
(c) The funds should normally be credited to your bank account within one to two (1-2) business days of us initiating the payout. Fresha is not responsible for any action taken by the institution holding your bank account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your bank account, or for any delays imposed by your bank or our Payment Processor. Fresha and our Payment Processor reserves the right to change the Payout Schedule from time-to-time or suspend payouts to your Bank Account as outlined in Section 5.1.
(d) Payment Processors may introduce Reserve Accounts for payouts. Reserve Accounts are used to secure Payment Processors against possible consumer disputes, chargebacks or frauds. They result in holding a percentage of Merchant’s funds for a given period of time, subject to Payment Processor internal regulations. This process is independent from Fresha.
(e) Funds held in your Reserve Account are amounts of money set aside to cover Chargebacks, refunds, or other payment obligations under this agreement. We, in our discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our Payment Processor.
(f) Fresha reserves the right to impose limits on the amount or frequency of refunds issued by any Merchant at any time. Fresha may require verification that a Merchant has sufficient funds to cover any refund issued.
(a). Taxes and Reporting. It is your responsibility to determine what, if any, taxes apply to your Orders or any payments processed through Fresha or other methods ("Taxes"). While Fresha may provide reporting and other tools in an effort to assist you calculate Taxes, Fresha makes no guarantees as to the accuracy or effectiveness of these tools or your use of them. It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You acknowledge that Fresha and our Payment Processor may make certain reports to tax authorities regarding transactions processed through Fresha Payment Services and our Payment Processor.
(b) Issuing Form 1099-K. Where applicable, Fresha will issue a form 1099-K to the IRS as required by law for any Merchant that receives both $20,000.00 or more in gross transaction volume and 200 or more unique transactions in a calendar year. Merchants are entitled to a copy of their 1099-K to be available online at our website, or via email at Fresha’s discretion. Forms and notices such as the 1099-K shall be considered to be received by you within twenty four (24) hours of the time it is posted to our website, emailed, or mailed to you unless we are informed that the notice was not received.
(c) Transaction Records. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Account, your transaction history and your use of the Payment Services. Fresha may provide dashboards, reports, and breakdowns of your transactions and payouts through Fresha Marketplace, and may maintain records for the previous eighteen (18) months, subject to change without notice.
(d) Reconciliations and Discrepancies. You agree to notify us of any discrepancies arising from any reconciliations or audits. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will remit funds through applicable Payment Services within your regular Payout Schedule. Your failure to notify us of an error or discrepancy within sixty (60) days of when it first appears in your Fresha account (e.g., in any dashboards or reporting provided to you) will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
(e) Transaction Errors. If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your account as appropriate. Fresha may only correct transactions that you process incorrectly if and when you notify us of such an error, unless we are otherwise made aware of it. Your failure to notify us of any error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
(a) Should you discontinue use of Fresha or otherwise suspend or cancel your Fresha account, we will immediately discontinue your access to the Payment Services. You agree to complete all pending transactions or outstanding appointments (or notify End Users of cancellation) and stop accepting new transactions through Fresha, as applicable. Any funds due to you will be paid out to you subject to the terms of your payout schedule and any applicable withholding.
(b) Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, reversals, or Investigations.
(c) Discontinuing to use Fresha Payment Services will not necessarily terminate your Fresha Merchant Agreement, unless Fresha informs you otherwise.
(d) Failure to pay any fees to Fresha including Service Fees, or accruing any balance owed to Fresha for Payment Services (including as outlined in Section 5.1) may result in the suspension of your account. Fresha may disallow your access to any services provided at our discretion until any balances owed are paid in full.
(a) You are fully responsible for the security of data on your website or otherwise in your possession. You agree to comply with all applicable country and local laws and rules in connection with your collection, security and dissemination of any personal, financial, credit card, or transaction information (defined as "Data" ) on your website. Fresha expressly rejects all responsibility and liability for your own Data.
(b) If we believe that a security breach or compromise of data has occurred, Fresha may require you to have a third-party auditor that is approved by Fresha conduct a security audit of your systems and facilities and issue a report to be provided to Fresha, our Payment Processor, financial banks, and/or the Payment Networks.
(c) You represent to us that you are in compliance with all applicable privacy laws, you have obtained all necessary rights and consents under applicable law to disclose to us, or allow Fresha or Payment Processor to collect, use, retain and disclose any Consumer or cardholder data that you provide to us or authorize us to collect, including email addresses, phone numbers, or information that we may collect directly from your end users via cookies or other means, and that we will not be in breach of any such laws by collecting, receiving, using and disclosing such information in connection with the Payment Services or other services. As between the parties to this Agreement, you are solely responsible for disclosing to your customers that we assist in managing card transactions for you and obtaining data from such customers. If you receive information about others, including Consumers and cardholders, through the use Fresha Payment Services, you must keep such information confidential and only use it in connection with Fresha platform.
(d) You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so. You may not disclose card numbers to any third party, other than in connection with processing a card transaction requested by the buyer customer.
(a) Merchant Representation and Warranties. You represent and warrant to us that:
(b) Prohibited Businesses
(a) Fresha Service Fees. Shedul platform is provided to Merchants for nil consideration. Other parts of the Services provided to Merchants through Fresha Marketplace constitute a paid service. The Service Fee is applicable to bookings processed through Fresha Marketplace and paid by End Users (Booked and Paid Orders). This fee covers the Services including among others: presentation of Merchant Offering to End Users, appointment booking, communication to End Users, reporting and Payment Services.
(b) Refunds and Chargebacks. Fresha fees are not returned when merchant charge is refunded or charged-back. Fresha reserves its right to impose separate fees for processing refunds or Chargebacks.
(d) Fee Verification. The pricing for the Services are set forth within the Merchant’s online account settings. Merchant may verify the fee structure for its account at any time by contacting customer service at [email protected]
(e) No Charge for Consumers. The use of the Services and Fresha Marketplace is free of charge for Consumers.
(a) Consent to Fresha Fees. By providing a credit card or other payment method accepted by Fresha ("Payment Method"), Merchant is expressly agreeing that Fresha is authorized to charge Merchant with all fees attributable for the use of Fresha Marketplace without additional consent. If Merchant wants to use a different Payment Method than the one Merchant provided Fresha, or if there is a change in Merchant’s credit card validity or expiration date, Merchant may edit its Payment Method information in its online account settings or by contacting [email protected]
(b) Consent to Continued Billing. If Merchant’s Payment Method expires and Merchant does not edit its Payment Method information, Merchant authorizes Fresha to continue billing, and Merchant shall remain responsible for any uncollected amounts.
(c) Collection Mechanisms. Fresha Service Fees will be collected in the form of a deduction from Payouts made to Merchant bank account.
(d) Fresha uses billing cycles that are in line with calendar months. At the end of each billing cycle, Fresha will issue an invoice to document monthly transactions, charges and payments with the Merchant.
Merchants may sell vouchers to Consumers through Fresha Marketplace. For any vouchers purchased by Consumers, Fresha will forward the payment to Merchant less applicable Fresha fees as outlined under separate Section. For Orders paid by issued vouchers, Fresha will not charge it’s Service Fee.
Merchant shall grant Fresha a non-exclusive, worldwide license to use, copy, distribute, transmit, and display any information Fresha collects through Shedul or from Merchant's publicly available website and to Merchant's name, logo and any trademarks ( "Merchant Marks" ) and any photographs, graphics, artwork, text and other content provided or specified by Merchant ( "Content" ) in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media or formats in which such Merchant Services are marketed, promoted, transmitted, sold, or distributed, including on the Website. Merchants may request that Fresha remove or stop using any information obtained from Merchant website by emailing [email protected]
(a) Information License. By submitting information, data, materials and other content to Fresha, you are licensing that content to Fresha solely for the purpose of providing The Services. You hereby authorize and permit Fresha to use and store information submitted by you to accomplish the foregoing and to configure The Services for you. Fresha may use and store the content, but only to provide The Services to you. By submitting this content to Fresha, you represent that you are entitled to submit it to Fresha for use for this purpose, without any obligation by Fresha to pay any fees or other limitations. By using The Services, you also expressly authorize Fresha to access your Account Information maintained at Shedul. For purposes of this Agreement and solely to provide the appointment booking feature to you as part of The Services, you grant Fresha a limited power of attorney, and appoint Fresha as your attorney-in-fact and agent, to access third party marketplaces, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN FRESHA IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY MARKETPLACES, FRESHA IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that The Services are not sponsored or endorsed by any third parties accessible through The Services.
(b) Security. Merchant agrees to allow Fresha to access its calendar held at Shedul. Merchant will not hold Fresha liable for any breaches of security.
(c) Shedul Calendar Data. By using The Services, Merchant agrees to Fresha Marketplace making revisions, updates, and sync to Merchant’s calendar data stored in Shedul, including but not limited to recording Orders.
Fresha may collect data from a Merchant's account and may use, sell or report such data for any purpose or use including for promotional purposes, revenue generation and product development, so long as such data has been aggregated with the data of no fewer than four (4) other Merchants.
(a) At all times, Merchant shall comply with:
(b) Where Merchant offers Merchant Services to individual End Users in the EEA or the United Kingdom:
(a) FRESHA MARKETPLACE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FRESHA OR THROUGH THE MARKETPLACE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FRESHA, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; THAT THE FRESHA MARKETPLACE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT FRESHA MARKETPLACE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF FRESHA MARKETPLACE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF FRESHA MARKETPLACE. SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. FRESHA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE FRESHA MARKETPLACE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND FRESHA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
(b) The Merchant represents and warrants to Fresha as follows:
Fresha owns all rights, titles, and interests in the Fresha Marketplace, all content, material, and trademarks presented on Fresha Marketplace or transferred thereby (excluding any licensed Merchant Marks), and any software, technology or tools used by Fresha to promote, market, sell, generate, or distribute the Vouchers and all intellectual property rights related thereto (collectively, the "Fresha IP" ). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights and Merchant may not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, adapt, edit, modify or timeshare the Fresha IP or any portion thereof, or use such Fresha IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. Merchant may not prepare any derivative work based on the Fresha IP. Merchant may not translate, reverse engineer, decompile or disassemble the Fresha IP.
Staff Members of a Merchant having access to Merchant Account at Shedul, will also have access to Merchant Account at Fresha Marketplace. An agency relationship will exist between the staff members and the Merchant and any actions taken by either staff member or Merchant will bind the Merchant.
Merchant agrees to defend, indemnify and hold Fresha, its affiliated and related entities, and any of their officers, directors, agents and staff members, harmless from and against any claims, actions, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney's fees, court fees and collection costs) arising out of or relating to any of the following:
(a) Any breach or alleged breach by Merchant of this Agreement or the representations and warranties stated in this Agreement;
(b) Any claim for Taxes arising from use of the Services, including but not limited to the sale and subsequent redemption of a Voucher;
(c) Any claim by any local, state or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest ( "Abandoned Property Claims" );
(d) Any claim arising out of a violation of law and/or regulation governing the use, sale, and/or distribution of alcohol;
(e) Any claim arising out of or relating to the sale, performance, or delivery of Merchant Services, including, but not limited to, any claims for changes to or determination of the value of a Voucher or Merchant Services, false advertising, product defects, personal injury, death, or property damages;
(f) Merchant's failure to comply with any applicable Laws including, but not limited to the regulations of: telephone consumer protection, consumer personal data protection; or
(g) Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney's fees, court fees and collection costs related to any action against, or determinations against, Fresha related to any action to pursue Fresha for Taxes or Abandoned Property Claims.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FRESHA, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL FRESHA BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESHA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF FRESHA MARKETPLACE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM FRESHA MARKETPLACE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH FRESHA MARKETPLACE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH FRESHA MARKETPLACE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL FRESHA, ITS AFFILIATES, AGENTS, DIRECTORS, STAFF MEMBERS, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FRESHA HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF FRESHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM COUNTRY TO COUNTRY. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Services are controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including, but not limited to, export and import regulations.
(a) Assignment. Merchant may not assign or delegate its rights or obligations under this Agreement or any rights and licenses granted hereunder, whether by operation of law or otherwise, without Fresha's prior written consent, but Fresha may assign the foregoing without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
(b) Headings and Sub-headings. Headings and sub-headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Merchant Agreement
(c) Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invaliding the remaining provisions of this Agreement, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
(d) Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party's prior written approval, to bind or commit the other Party in any way.
(g) Governing Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the English courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
BY REGISTERING FOR A MERCHANT ACCOUNT OR BY USING OR ACCESSING THE SERVICES, MERCHANT UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT MERCHANT WILL ABIDE BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR A MERCHANT ACCOUNT AND IMMEDIATELY STOP (A) ACCESSING FRESHA MARKETPLACE AND (B) SUBMITTING MERCHANT OFFERINGS.
In this Addendum, the following words shall have the following meanings:
“Agreed Purpose” to allow Fresha to provide access to Shedul and the Fresha Marketplace to the Merchant in such a manner as to permit the Merchant to take full advantage of all the features of the Platform.
“Data Protection Authority” means the local governmental or other official regulator(s) responsible for enforcement of Data Protection Legislation from time-to-time in the relevant EEA country or the United Kingdom.
“Data Protection Legislation” means all applicable laws and regulations relating to the processing of personal data and privacy including the General Data Protection Regulation 2016 (EU) 2016/679 and the Electronic Communications Data Protection Directive (2002/58/EC), together with all codes of practice and other guidance on the foregoing issued by any relevant Data Protection Authority, all as amended, updated or re-enacted from time-to-time.
“Shared Personal Data” the personal data which is shared between the parties, including names, contact information (phone numbers, addresses, email addresses), age date of birth, social media data, personal interests, and other personal data shared by the Merchant on Fresha
1.1. The terms ‘personal data’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in the Data Protection Legislation.
1.2. Where a term is capitalised in this schedule but not defined, it shall have the same meaning as is given to it in the main body of this Addendum.
2.1. The parties acknowledge that for the purposes of the Data Protection Legislation, they shall act as data controllers with respect to the Shared Personal Data.
2.2. The parties agree to only process Shared Personal Data for the Agreed Purpose, and shall not process it in a way which is incompatible with the Agreed Purpose.
3.1. Each party shall (and shall ensure that any subcontractors shall):
3.2. The Shared Personal Data must not be irrelevant or excessive with regard to the Agreed Purpose. Neither party shall attempt to access, copy, amend, store or delete any personal data owned by the other party where any such action is not absolutely necessary in order to fulfil the Agreed Purposes.
3.3. Each party shall ensure that it only processes Shared Personal Data on the basis of one or more of the legal grounds for processing contained in the Data Protection Legislation, and that the chosen legal ground shall be and remain valid in the context of the processing operation(s) to which it relates.
3.4. Each party shall ensure that (to the extent of its reasonable knowledge and belief) the personal data it discloses to the other party is accurate.
4.1. Each party shall, in respect of Shared Personal Data, ensure that their privacy notices are clear and provide sufficient information to prospective customers and any other effected data subjects for them to understand what of their personal data is being shared, the circumstances in which it will be shared, the purposes for the data sharing and either the identity of the other party, or a description of the type of organisation that will receive the personal data.
4.2. The parties acknowledge that the Data Protection Legislation grants data subjects certain rights over their personal data, and that the responsibility for complying with such a request falls to the party who receives it in respect of the personal data they hold about the relevant data subject.
4.3. The parties shall maintain a record of any requests made by data subjects to exercise their rights. The records shall also include an explanation of decisions made and any information that was exchanged. Records must include copies of the request, details of the data accessed and shared and where relevant, notes of any meetings, correspondence or phone calls relating to the request.
4.4. The parties agree to provide reasonable assistance as is necessary to each other to enable them to comply with any requests made by a data subject.
Each party shall ensure that it only retains Shared Personal Data for as long as necessary for the purposes it was originally collected for, or as otherwise required under the Data Protection Legislation or other applicable laws.
6.1. For the purposes of this paragraph, transfers of personal data shall mean any disclosure of Shared Personal Data to an unconnected third party.
6.2. Where either party transfers Shared Personal Data in accordance with this Addendum:
7.1. Taking into account the latest standards of security measures, the costs of implementation and the nature, scope, context and purposes of the data sharing, as well as the risk to the rights and freedoms of natural persons, each party shall implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
7.2. It is the responsibility of each party to ensure that its staff members are appropriately trained to handle and process the Shared Personal Data in accordance with the technical and organisational security measures adopted by that party, together with any other applicable national data protection laws and guidance. The level, content and regularity of such training shall be proportionate to the staff members' role, responsibility and frequency with respect to their handling and processing of the Shared Personal Data.
7.3. If either party becomes aware of a personal data breach relating to any of the Shared Personal Data, it shall:
Each party shall perform its obligations under this schedule at its own cost.