AFFILIATE AGREEMENT
This Affiliate Agreement (this “Agreement”), sets forth the agreement between Florist 1 LLP, a Florida Limited Liability Company (“Provider”) and the person or entity entering into this Agreement (“Affiliate”).
By clicking the "Accept" button for this Agreement and/or using the links and/or other coded materials issued by Provider, you confirm your acceptance of, and agree to be bound by, this Agreement.
If you have registered as or on behalf of an entity, such as a corporation, partnership, limited liability company or other entity, then “Affiliate” refers to the entity, and you represent and warrant that you have power and authority to enter into this Agreement on behalf of the entity.
In the Agreement the words “we”, “our", and "us" mean Provider, and the words "you" and "your" mean the Affiliate as defined above.
1. Appointment.
You are appointed non-exclusively by us as our affiliate to obtain orders for our products and services described in our commission schedule, the current version of which is available at http://www.floristone.com/api/commissions.cfm (“Eligible Products”), in accordance with this Agreement. You are not authorized to appoint subaffiliates, unless we separately provide you with link(s) to appoint subaffiliates. In any event, only one tier of subaffiliates is permitted, and subaffiliates shall not appoint other subaffiliates. Each subaffiliate must also enter into an agreement with us that is identical to this Agreement. We may adjust our Eligible Products and Commissions (as defined below) from time to time to reflect different commissions for affiliates and subaffiliates, among other things.
2. Customer Order Tracking.
Customer orders will be tracked by Provider based on the Affiliate codes (each an “Affiliate ID”) included in one or more URL’s, or information, data, text, software, video, music, sound, photographs, graphics and similar materials (collectively, "Content") that Provider provides to you (collectively, “Provider Materials”). You shall not change Affiliate IDs or other Provider Materials that we provide to you, and you acknowledge that any such changes may impair our tracking mechanisms and your Commissions. We or our subcontractors or participating florists are responsible for payment processing, shipping and delivery and related customer service for our products and services. All customer orders must be bona fide and comply with our rules, policies and operating procedures from time to time. All purchases of goods and services from us are subject to our acceptance. All credits and refunds are at our sole discretion. Generally, the last affiliate who causes a customer to purchase eligible Provider products and services will receive the credit for subsequent purchases of other eligible Provider products and services by that customer.
Customers who buy flowers through our affiliate program will be deemed to be customers of Florist 1 LLP. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for flowers sold under our affiliate program accordance with our own pricing policies.
3. Your Obligations.
You agree to:
(a) provide true, current and complete information about yourself in the required fields of our affiliate registration form(s) and promptly update such information as necessary;
(b) ensure that you have all necessary rights and permissions to use all reviews, articles, and other Content from third parties in connection with your marketing of our products and services;
(c) have sole responsibility for providing, hosting and maintaining, at your expense, each of your websites, and backing up your data on a regular basis;
(c) not frame (I-frame) any of our websites without our prior written approval;
(d) post a privacy policy in a conspicuous place in connection with any collection of personally identifiable information (“PII”);
(e) make no representations or guarantees regarding us or our products and services, other than those contained in Provider Materials supplied to Company, or as approved in advance by Provider in writing; and not use any false or misleading testimonials; and
(f) not use our name, address, telephone numbers and/or email addresses on your websites (including but not limited to any Contact Us or About Us pages) or marketing materials, except as we may include them in Provider Materials or may approve in writing.
Certain of our affiliates may make available to you custom applications for use with our Eligible Products. If you use any such custom application, you hereby agree to be bound by the following Sections of our API Agreement as in effect from time to time, the current version of which is available at http://www.floristone.com/api/api-legal.cfm, as they may apply to “Company,” with respect to your use of such custom application: Sections 2.1.2 (License Restrictions) (excluding clause (i)), 3.4 (No Curtailment), 3.6 (Privacy and Security), 3.7 (Feedback), 4.1 (Payments), 4.2.1 (Acceptance, Credits and Refunds), 4.2.3 (Customer Billing), 4.2.4 (Partner Billing), 4.2.5 (Enhanced Fraud Detection), and 4.2.6 (Taxes). You also agree to use any such custom application only in accordance with the terms and conditions supplied by such affiliate, and subject to other limitations on Provider Materials in this Agreement.
We have the right but not the obligation to pre-approve any of your marketing materials and other Content used to market Eligible Products.
Your affiliate relationship with us is subject to our Privacy Policy, as in effect from time to time, available from our website, http://www.floristone.com/privacy.cfm. You consent to the use of your personally identifiable information in accordance with such privacy policy.
The terms and conditions of this Agreement are our confidential information, and you agree that you will not disclose the same to any third party (other than your employees or contractors under non-disclosure agreements), except as may be required by law, provided you use reasonable efforts to request confidential treatment of the same.
We grant you a limited, non-exclusive license to use our trademarks, copyrights and other intellectual property in the links and Provider Materials for use under this Agreement. You agree not to challenge our rights to such property.
4. Affiliate Code of Conduct.
In connection with your marketing of our products and services and/or use of any Affiliate ID or Provider Materials, you agree not to, directly or indirectly: (i) use any Affiliate ID and/or Provider Materials in any way that would breach this Agreement or would be abusive, harassing, tortious, obscene, or otherwise could result in civil or criminal liability or in excessive non-acceptance, non-delivery, refunds and/or chargebacks of purchases; (ii) violate any applicable law, rule or regulation; (iii) use any Affiliate ID and/or Provider Materials in connection with any email marketing (other than to your own opt-in list) or unethical or illegal methods; (iv) provide false or misleading information or impersonate any person or entity, including, but not limited to, any representative of Provider or falsely appear to be a local florist; (v) interfere with or disrupt any Affiliate ID and/or Provider Materials or the servers, networks or communications systems connected to them or any security functionality of ours or any third party; (vi) use or introduce any spyware, adware, viruses, trojan horses, worms or similar invasive, destructive or self-replicating code in connection with Affiliate ID’s and/or Provider Materials; or (vii) use any automated system, such as “robots” or “spiders,” to access our systems significantly faster than a human or to monitor activity thereon, other than functionality approved by us (e.g., our API); (viii) transmit any Content prohibited by intellectual property (e.g., patent, copyright, trademark, trade secret, or privacy and publicity) or other laws (including account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising), unless you are the owner or have permission to use such rights; (ix) market or use any of our products or services as a multi-level marketing (MLM), pyramid, chain letter or similar arrangement; (x) misrepresent any product or business; and (xi) conduct raffles, contests, lotteries or sweepstakes, except in compliance with all relevant federal and state legal requirements and with our prior written consent. Provider shall be the sole arbiter as to what activities violate the foregoing.
5. Commissions.
During the term of the Agreement, we will calculate your commissions as defined in our then-current commission schedule available from our website, http://www.floristone.com/api/commissions.cfm (“Commissions”).
Commissions will be paid monthly within fifteen (15) days of the end of each calendar month, based on the total payments received from customers for fulfilled orders each month to which you are entitled to a Commission, net of Chargebacks, service charges and applicable taxes, provided that total Commissions for such month exceed one hundred fifty dollars (USD$150). If total Commissions due to you are less than one hundred fifty dollars (USD$150), such Commissions will be carried forward. Commissions shall be paid by check. “Chargebacks” mean (i) product and service returns, refunds or cancellations, (ii) payment chargebacks, (iii) clear error, and/or (iv) fraudulent or non-bona-fide transactions. We may hold a reasonable reserve for Chargebacks. To the extent we are required by federal, state and/or regulatory agencies to provide tax information regarding our affiliates, you must submit your tax information to us, and we may withhold Commission payments until we receive such information.
Upon acceptance in our affiliate program, you will be given a user name and password and may enter our affiliate site to receive real-time sales and Commission statistics.
6. Independent Contractor.
You understand you are an independent contractor and not an employee of Provider under the Agreement. You control the management of your business, subject to the limitations contained in this Agreement. You may not, however, enter into any agreement on behalf of Provider or otherwise obligate Provider.
7. Limitation of Our Liability.
WE DO NOT MAKE ANY WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY AND NONINFRINGMENT. WE DO NOT WARRANT THAT THE PROVIDER MATERIALS, TRACKING MECHANSIMS OR OUR OTHER GOODS AND SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST REVENUE, PROFITS OR SAVINGS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. OUR MAXIMUM LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE COMMISSIONS PAID OR PAYABLE TO YOU FOR COMPLETED SALES DURING THE PRECEDING 12 MONTHS. Any claim or cause of action arising out of this Agreement must be filed within one (1) year after such claim arose.
8. Term and Termination.
8.1 Term. Unless otherwise terminated as specified in this Section, the term of this Agreement shall begin on our acceptance of your affiliate application and will continue on a month to month basis (the “Term”).
8.2 Termination and Suspension.
8.2.1 Either party may terminate this Agreement due to material breach of this Agreement by the other party if such breach remains uncured for thirty (30) days following written notice to the breaching party by the non-breaching party.
8.2.2 We may suspend or terminate all or any portion of this Agreement due to: (i) any material breach by you of this Agreement or our policies; (ii) illegal or fraudulent activity; and/or (iii) termination or suspension of any agreement or services by our subcontractors. In the event of such suspension or termination under (i) or (ii), unless otherwise agreed by us, your unpaid Commissions shall be waived, as liquidated damages. Such a suspension or termination may be immediate and/or without notice, though we will use reasonable efforts to give you prompt written notice (including email) of the suspension or termination.
8.3 Survival. The following provisions of this Agreement will survive any termination or expiration of this Agreement: Sections 5 (as to amounts accrued and due on or prior to termination or expiration), and 6 to 10 inclusive.
8.4 Effect of Termination. Upon the expiration or termination of this Agreement, you shall remove and cease use as soon as practicable of the Affiliate ID’s and Provider Materials; we are not restricted by this Agreement or its termination from fulfilling orders made prior to such termination or expiration; and we will not be liable for compensation, indemnity, or damages of any sort as a result of such expiration or termination. In the event of termination other than for your breach or for illegal or fraudulent activity, we shall continue to pay you Commissions earned and unpaid as of the termination date.
9. Indemnification.
You agree to defend, indemnify and hold harmless us, our affiliates, and our and their officers, directors, partners, shareholders, employees, successors, assigns and independent contractors from and against all losses, claims, damages, liabilities or expense (including, but not limited to reasonable attorneys’ fees and costs) arising out of your errors or omissions in connection with this Agreement, including, but not limited to, your breach of this Agreement, or your violation of rights of third parties. We have the right to consent to any settlement, such consent not to be unreasonably withheld, and to participate with our own counsel at our expense in any defense.
10. Miscellaneous.
10.1 Compliance With Law. Each party shall comply with all U.S. federal, state and local laws, rules and regulations applicable to its activities under this Agreement.
10.2 References. We may use your name and logo in our marketing materials (for example, in trade shows, press releases and blog posts) and websites.
10.3 Assignment. You may not assign this Agreement, in whole or in part, without our prior written consent. Any attempt by you to assign this Agreement without such consent shall be void. Subject to the foregoing, this Agreement binds and benefits both parties, and their successors and permitted assigns.
10.4 Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, U.S.A., except for its conflicts of laws principles. You consent and agree that exclusive jurisdiction for any dispute, claim or controversy arising from this Agreement shall be in the federal and state courts located in Flagler County, Florida, U.S.A. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
10.5 Notices. Notices from us to you will be given by general posting on our website, or by email, overnight courier, first class or express mail to you address of record with us. Notices from you to us must be given by overnight courier, first class or express mail, certified or registered, postage prepaid and sent to Florist 1 LLP, Attn: President, 712 S Ocean Shore Blvd, Flagler Beach, FL 32136, USA.
10.6 No Agency. The parties are independent contractors and neither will have power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.
10.7 Force Majeure. Any delay in or failure of performance by a party of its obligations under this Agreement will not be considered a breach of this Agreement and will be excused to the extent such delay or failure of performance is caused by any occurrence beyond the reasonable control of such party, which occurrences may include, but are not limited to, acts of God; failures of the Internet, telecommunications or payment processing facilities; bank holidays, market closures, or other government interventions; war; riot or labor strikes; and similar events.
10.8 Severability. If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected.
10.9 Entire Agreement. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter.
10.10 Amendments and Modifications. We reserve the right at any time and from time to time to modify or discontinue any of our products and services, our affiliate program (such as Commissions, payment procedures and program rules) and/or the terms and conditions of this Agreement, with or without notice. We may amend this Agreement at any time by (a) posting a revised version accessible via our websites, and/or (b) sending information regarding the amendment to your email address of record with us. Your continued participation in our affiliate program and use of our Affiliate ID’s after such modification shall constitute your acceptance of the new modifications. If you do not agree to any such modification, you may terminate this Agreement and immediately cease all marketing of our Eligible Products. You agree that such termination will be your sole remedy if you do not agree to any such modification.
10.11 No Third Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any customer or other third party. Only the parties to this Agreement may enforce it.
10.12 Remedies. The rights and remedies of us in this Agreement, at law or in equity, are cumulative and are not intended to be exclusive of one another.
10.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
Revised: December 1, 2012