Please read this agreement carefully. If you agree with the terms, please click "I Agree" at the bottom.
AFFILIATE PROGRAM AGREEMENT
This Affiliate Program Agreement ("Agreement") contains the complete terms and conditions that apply to your participation in the Flowers by Valerie Affiliate Program and the establishment of links from your web site to the FlowersByValerie.com web site located at "www.FlowersByValerie.com"(the “Web Site”). You may also be referred to herein as "AFFILIATE", "You" or "Party". Flowers by Valerie may also be referred to as “FlowersByValerie.com”, “We” or “Us”.
1.The Affiliate Program:
(a) As an AFFILIATE, we will make available to you via the Web Site a variety of graphic, product, textual and other links as determined by Flowers by Valerie (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas of your web site as you desire. The Links will serve to identify your site as an AFFILIATE of our Affiliate Program and will establish a link from your site to the Web Site for your participation in the Affiliate Program. You agree that you will display on your Web Site only those Links that are provided to you by Flowers by Valerie.
(b) To commence the process of enrolling as an AFFILIATE in the Affiliate Program, you will submit an Enrollment Application via our Web Site or as otherwise authorized by Flowers by Valerie. We will evaluate your application and notify you of your acceptance or rejection; which determination shall be in our sole discretion.
2. Term:
(a) This Agreement is conditioned upon and will become effective on our acceptance of your Enrollment Application and your acceptance of the terms of this Agreement. By joining or participating in the Affiliate Program you are acknowledging that You have read this Agreement and are agreeing to abide by all the terms of this Agreement, which may be amended from time to time in the sole discretion of Flowers by Valerie. We will notify You of any amendment by posting a notice on the Web Site or, in our sole discretion, by E-mail and Your continued participation in the Affiliate Program after such notice is posted or sent via E-mail shall constitute your binding and legally enforceable agreement to such amendment and acceptance of the Agreement as amended. Either party may terminate this Agreement at any time, with or without cause by giving the other party notice of termination. The first twelve months following the date this Agreement becomes effective and every twelve months thereafter that this Agreement remains in full force and effect are each a "Term Year". You fully understand that this Agreement creates legally binding obligations on Your part.
(b) AFFILIATE is only eligible to earn commissions on sales which are completed during the term of this Agreement, and commissions earned through the date of termination will be payable only if the related purchases are not canceled or returned. Flowers by Valerie may withhold AFFILIATE'S final payment for a reasonable time to ensure that the correct amount is paid.
3. Commissions:
(a) For products that are purchased by consumers upon linking to the Web Site directly from your web site, or other approved promotional tools (e.g. emails), utilizing a URL(s) approved by Flowers by Valerie and for which Flowers by Valerie has delivered the ordered products and received full payment (each a "Qualifying Purchase(s)"), AFFILIATE will receive the following commission which will be based on "Net Sales" of Qualifying Purchase(s): a 10% commission on all monthly Net Sales. "Net Sales" is defined as the gross sales price of a Qualifying Purchase less taxes, service charge, shipping, relay and handling charges, discounts, gift certificates, promotional offers (e.g., airline miles, points, e-money etc.), credit card processing fees, credits, refunds, rebates and chargebacks. We may make other offers available to You from time to time; which offers may be changed, suspended or discontinued by Flowers by Valerie at any time without notice. AFFILIATES are responsible for inserting a tracking code in the manner designated by Flowers by Valerie to ensure accurate tracking of Qualifying Purchases.
(b) Flowers by Valerie will pay you or cause you to be paid within thirty (30) days after the end of each calendar month in accordance with the above mentioned commission structure provided total commissions due to you for such month exceed Twenty-Five Dollars ($25). The check (or other alternate payment method as selected by Flowers by Valerie) will be for the applicable commission (less any taxes required to be withheld pursuant to applicable law). For any calendar month in which your commissions do not exceed $25, Flowers by Valerie shall have the option to pay same or to withhold such payment and add such commissions to the next calendar month for which you are entitled to receive a commission payment. Furthermore, you will be given a user name and password which will enable you to receive your sales statistics on a reasonable basis.
4. Legal Compliance; Representations and Warranties:
AFFILIATE shall operate its web site, conduct any promotional and advertising activities (e.g. email and telemarketing campaigns), and render its services in compliance with all applicable federal, state, and local laws, rules and regulations, and AFFILIATE will be solely responsible for obtaining all required governmental authorizations necessary for its web site and the full performance of its services as provided for under this Agreement. AFFILIATE hereby further represents and warrants that: (a) if a corporation, it is a corporation duly organized and validly existing and in good standing under the laws of the state of your incorporation; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (c) it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; (d) its web site, promotional activities, and the services to be rendered by AFFILIATE under this Agreement neither infringes nor violates any patent, copyright, trade secret, trademark, or other proprietary or privacy right of any third party; (e) this Agreement has been duly and validly executed, accepted and delivered by AFFILIATE and constitutes its legal, valid and binding obligation, enforceable against AFFILIATE in accordance with its terms; (f) the execution, acceptance, delivery and performance by AFFILIATE of this Agreement, and its consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule or regulation to which it is subject, (ii) any order, judgment or decree applicable to AFFILIATE or binding upon its assets or properties; (iii) any provision of AFFILIATE'S by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to AFFILIATE or binding upon its assets or properties; (g) AFFILIATE is the sole and exclusive owner of AFFILIATE'S Marks, as defined herein, and has the right and power to grant Flowers by Valerie the license to use AFFILIATE'S Marks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to it or binding upon its assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any person or entity; (h) no consent, approval, authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by it in connection with the execution, delivery, and performance of this Agreement, or the taking by it of any other action contemplated hereby; (i) there is not pending, or to the best of AFFILIATE'S knowledge, any threatened claim, action, or proceeding against AFFILIATE, or any of its affiliates , with respect to the execution, delivery or consummation of this Agreement, or with respect to its Marks, and, to the best of its knowledge, there is no basis for any such claim, action or proceeding and (j) AFFILIATE will fully comply with all federal, state, and local laws, rules and regulations applicable to Privacy and the sending of unsolicited commercial emails (SPAM), telemarketing, direct mail and other communications to consumers and other third parties. AFFILIATE shall ensure that its web site accurately and adequately discloses, either through a privacy policy or otherwise, how it collects, uses, stores, and discloses data from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers, and how consumers and other third parties may limit any such disclosure or communication.
5. Maintenance; Representations and Warranties:
(a) AFFILIATE shall monitor and periodically test the general availability and operation of its web site. AFFILIATE represents and warrants that its web site will perform adequately so that customers will be able to shop for Flowers by Valerie’s products.
(b) AFFILIATE is solely responsible for the development, operation and maintenance of its web site and for all materials and content that appear on AFFILIATE'S web site. Such responsibilities include, but are not limited to, the technical operation of AFFILIATE'S web site and all related equipment; the accuracy and propriety of all materials and content posted on AFFILIATE'S web site; and ensuring that materials and content posted on its web site will not (i) violate any laws, rules or regulations; (ii) violate or infringe upon the rights of any third party including, without limitation, copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (iii) be lewd, pornographic, sexually explicit, or obscene; (iv) violate any laws regarding unfair competition, anti-discrimination or false advertising; (v) promote violence or contain hate speech, (vi) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious program routines; or (vii) be libelous, harmful, threatening, abusive, harassing, defamatory, derogatory or otherwise illegal or objectionable to Flowers by Valerie; (viii) be a homepage or a personal website created through free webspace offered by third parties; (ix) use or promote promotion codes, coupon codes or any discount offers unless specifically authorized by Flowers by Valerie; (x) contain promotional materials about Flowers by Valerie or the Affiliate Program unless specifically authorized by Flowers by Valerie and (xi) be operated in a language other than English. AFFILIATE shall not (a) include any of the Marks as defined in Section 8, or variations or misspellings thereof in any of AFFILIATE’s domain names or any metatags; (b) send any emails or other promotional or marketing materials which mention Flowers by Valerie, the Affiliate Program or the Web Site without the prior written consent of Flowers by Valerie; (c) shall not make any press releases or other public statements regarding the Affiliate Program or Flowers by Valerie or the Web Site without first obtaining the express written approval Flowers by Valerie; (d) take any action that could reasonably cause any customer confusion as to our relationship with You, or as to the web site on which any functions or transactions (e.g., search, order, browse, etc.) are occurring; and (e) post or serve any advertisements or promotional content around or in conjunction with the display of the Web Site (e.g., through any “framing” technique or technology or pop-up windows.
(c) Flowers by Valerie disclaims all liability for all matters set forth in Section 4 and 5(b). Further, AFFILIATE will indemnify and hold Flowers by Valerie, its parent company, subsidiaries, affiliates and their respective officers, directors, shareholders and employees free and harmless against and from all claims, damages, losses, liabilities and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of AFFILIATE'S web site.
(d) Flowers by Valerie reserves the right, in its sole discretion, to monitor AFFILIATE'S Web Site, at any time and from time to time, to ascertain whether AFFILIATE is in compliance with the terms of this Agreement.
6. Fulfillment:
Flowers by Valerie will fulfill all fully paid orders for products in accordance with Flowers by Valerie’s customary business practices. Flowers by Valerie shall be solely responsible for fulfilling all orders placed by a customer as a direct result of the Links. Flowers by Valerie‘s products offered through the Links will be supported by the same favorable warranty and return policy for such products as offered through other Flowers by Valerie’s channels. Customers who purchase through the Affiliate Program are deemed to be customers of Flowers by Valerie. Accordingly, all of Flowers by Valerie’s rules, policies, and operating procedures concerning customer orders, customer service, and use of customer names and information, will apply to those customers.
7. Promotion:
(a) Any promotional or advertising activities you may wish to engage in requires the prior written consent of Flowers by Valerie. AFFILIATE shall not create, publish, distribute, or permit any written material, including, without limitation, promotion codes, coupons and discount offers that make reference to Flowers by Valerie and/or its parent company, subsidiaries, affiliates and their respective web sites without first submitting such material to Flowers by Valerie and receiving prior written consent thereto. When engaging in any direct promotional or advertising activities with consumers, AFFILIATE shall (a) identify AFFILIATE’s complete name and physical postal address, (b) clearly, conspicuously, and truthfully indicate the nature of the communication, (c) provide a reasonable method by which consumers can eliminate or limit (“opt-out”) of such communications, (d) timely and in accordance with applicable laws, honor consumer requests to “opt-out” of such communications, (e) maintain reasonable records with regard to such “opt-out” requests, and (f) do not sell, rent, share, transfer, or disclose any personal information regarding consumers who “opt-out” except to process their orders and requests.
(b) AFFILIATE will represent themselves on search engine results for related listings only as “AFFILIATE OF FlowersByValerie.com”. That without limiting the foregoing, AFFILIATE shall not purchase, use or bid for placement any of the Marks, as defined in Section 8, which include without limitation, Flowers by Valerie, and FlowersByValerie.com, or any variations or misspellings of the Marks , with any search engine. In addition, upon Flowers by Valerie’s request, AFFILIATE will immediately cease bidding, purchasing or using any Marks and other terms used to promote the Affiliate Program and AFFILIATE’s participation therein. Furthermore, Flowers by Valerie, hereby reserves all legal and equitable remedies it may have for AFFILIATE's violation of Sections 7(b) and 8 and for any misuse or infringement of the Marks by AFFILIATE.
(c) PARTICPANT shall not, in any manner, misrepresent or embellish the relationship between AFFILIATE and Flowers by Valerie, or expressly or imply any relationship or affiliation between us and You or any other person or entity except as expressly permitted by this Agreement (including by expressly or implying that Flowers by Valerie supports, endorses, or contributes money to any charity or other cause).
(d) Software applications: AFFILIATE in utilizing software applications (e.g. TopMoxie etc) will comply with all provisions of the FlowersByValerie.com Affiliate Agreement. In addition AFFILIATE will only receive credit for those transactions generated by users after clicking the software applications messaging window on the user’s screen. Credit will not be given for transactions on FlowersByValerie.com that are generated through internet locations where the software applications have been downloaded but the user has not clicked on the applications messaging window prior to purchase.
8. Licenses:
(a) Flowers by Valerie grants to AFFILIATE a limited, non-exclusive, non-transferable, royalty-free, revocable license to (i) access the Web Site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use Flowers by Valerie‘s and its parent company’s, subsidiaries’ and affiliated companies’ logos, trade name, trademarks, service marks and similar identifying material (collectively the "Marks"), for the sole purpose of selling Products on your Web Site for Flowers by Valerie (but only in the form(s) as they appear on the Web Site). You may not alter, modify, amend, or change the Marks in any way. You are only entitled to use the Marks to the extent that this Agreement provides and only while this Agreement remains in full force and effect The use of any such Marks requires the prior written approval of Flowers by Valerie in all instances.
(b) AFFILIATE shall not make any specific use of any Marks for purposes other than selling Flowers by Valerie’s products on AFFILIATE'S web site for Flowers by Valerie. No use of the Marks can be made without first submitting a sample of such proposed use to Flowers by Valerie, and obtaining the prior written consent of Flowers by Valerie. AFFILIATE agrees not to use the Marks in any manner that is disparaging or otherwise portrays Flowers by Valerie in a negative light. Flowers by Valerie reserves all of its rights in the Marks and all of its other proprietary rights. No right, property, license or interest in any Marks is intended to be given to or acquired by AFFILIATE by the execution or the performance of this Agreement. Flowers by Valerie may revoke this license at any time, by giving you written notice. AFFILIATE may not alter, modify, or change the Marks in any way. All goodwill arising from the use of the Marks shall inure solely to the benefit of Flowers by Valerie and its parent, subsidiary or affiliated companies, as applicable.
(c) All intellectual and proprietary property and information, supplied or developed by Flowers by Valerie shall be and remain the sole and exclusive property of Flowers by Valerie. Upon termination of this Agreement, AFFILIATE shall immediately cease using and return to Flowers by Valerie any and all such property and information it receives from Flowers by Valerie and, without limiting the foregoing, immediately cease use of Flowers by Valerie’s Marks. AFFILIATE agrees not to contest or challenge the Marks or to use any confusingly similar marks.
(d) AFFILIATE grants to Flowers by Valerie a non-exclusive, non-transferable, royalty-free license to access the AFFILIATE web site through the Links; and (ii) use AFFILIATE'S trade name, titles, logos, trademarks, service marks, products and similar identifying material relating to AFFILIATE (the "AFFILIATE'S Marks"), to advertise, market, promote and publicize in any manner this Agreement, the transactions contemplated hereunder or Flowers by Valerie’s rights hereunder; provided, however, that Flowers by Valerie shall not be required to advertise, market, promote or publicize, in any manner, this Agreement, the transactions contemplated hereunder, or AFFILIATE'S Marks.
9. Confidentiality:
Pursuant to this Agreement, the Parties may disclose to one another certain information ("Information") which is considered by the disclosing party to be proprietary or confidential information, including, without limitation, the term of this Agreement, business, marketing and financial information, customer and vendor lists, and pricing and sales information. All such Information shall remain the sole property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary Information and the receiving party shall not disclose such Information to any third party without the prior written consent of the disclosing party. The restrictions of the use or disclosure of any Information shall not apply to any information: (i) after it has become generally available to the public without breach of this agreement by the receiving party; (ii) is independently developed by receiving party; (iii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iv) is rightfully received by receiving party from a third party without duty of confidentiality; or (v) is disclosed under operation of law or pursuant to legal or regulatory process.
10. LIABILITY: NEITHER FLOWERS BY VALERIE NOR ITS PARENT COMPANY, SUBSIDIARIES, OR ITS AFFILIATED COMPANIES SHALL HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT OR BUSINESS OPPORTUNITIES, WHETHER OR NOT FLOWERS BY VALERIE KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGE MIGHT BE INCURRED. FURTHERMORE, FLOWERS BY VALERIE’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF RECOVERY SHALL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
11. Indemnification:
AFFILIATE agrees to indemnify, defend and hold harmless Flowers by Valerie, its parent company, subsidiaries, affiliated companies, successors and assigns and their respective officers, directors, shareholders and employees, from and against any and all losses, liabilities, damages, actions, claims, expenses and costs including, without limitation, reasonable attorneys' fees, which result or arise from or are based on (i) the negligence of AFFILIATE, its agents, servants and/or employees, (ii) AFFILIATE'S breach of this Agreement or any of the terms hereunder, (iii) any breach of a representation or warranty, or breach of a covenant or agreement made by AFFILIATE herein, or in the Enrollment Application, (iv) any claim that Flowers by Valerie’s use of AFFILIATE'S Marks infringe on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, or (v) any claim related, in any way, to AFFILIATE'S web site, including, without limitation, content therein not contributed directly by Flowers by Valerie, as well as, any and all promotional and advertising activities conducted by, or on the behalf of, AFFILIATE.
12. Independent Parties:
Nothing contained herein shall imply any partnership, joint venture or agency relationship between the Parties and neither Party shall have the power to obligate or bind the other in any manner whatsoever, except to the extent herein specifically provided.
13. Binding Effect; Benefit:
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the Parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
14. Severability:
If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect.
15. Notices:
Any notices required or permitted under this Agreement shall be sent electronically to you at your web site or the email address as provided to Flowers by Valerie and shall be deemed duly made and received when sent.
16. Force Majeure:
Except as otherwise expressly provided in this Agreement, Flowers by Valerie shall not be liable for any breach of this Agreement or for any delay or failure of performance resulting from any cause beyond such Party's reasonable control, including without limitation, the weather, strikes or labor disputes, war, terrorist acts, riots or civil disturbances, government regulations, acts of civil or military authorities, or acts of God.
17. Entire Agreement:
This Agreement constitutes (a) the binding agreement between the Parties; (b) represents the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements; and (c) may not be modified or amended except in a writing signed by the Parties. Notwithstanding anything to the contrary contained herein, Flowers by Valerie may modify and change any of the terms and conditions of this Agreement, at any time in its sole discretion. We will notify You of any such modification or change as provided for in Section 2 (a) hereof. Modifications and changes may include, without limitation, changes in the scope of available commission fees and payment procedures. If any modification or change is unacceptable to AFFILIATE, AFFILIATE'S only recourse is to terminate this Agreement. Your continued participation in the Program after the notice is posted or sent pursuant to Section 2(a) hereof, will constitute Your legally binding acceptance of the modification or change.
18. Governing Law:
This Agreement shall be governed by, and construed in accordance with the laws of the State of New York without regard to conflicts of law principles thereof.
19. Arbitration; Venue;
Each Party hereby agrees to submit to binding arbitration in Indianapolis, Indiana, all disputes or controversies arising out of or in conjunction with this Agreement in accordance with the commercial arbitration rules of the American Arbitration Association (AAA) then in effect and judgment upon the award shall be final and unappealable and may be entered in any court having jurisdiction thereof. Nothing contained herein shall, however, be construed to limit or preclude Flowers by Valerie from bringing any action in any court of competent jurisdiction for injunctive or other provisional relief as Flowers by Valerie may deem to be necessary or appropriate against conduct or threatened conduct by AFFILIATE. Venue for purposes of any action brought in connection with or arising out of this Agreement shall be conclusively presumed to be in the State of Indiana County of Marion and the United States District Court, in and for the Southern District of Indiana and the Parties hereby irrevocably consent to jurisdiction in said courts.
20. INDEPENDENT INVESTIGATION:
AFFILIATE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS. IT UNDERSTANDS THAT FLOWRS BY VALERIE MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, SOLICIT CUSTOMER REFERRALS AND ENTER INTO SIMILAR AGREEMENTS ON TERMS THAT MAY BE THE SAME, SIMILAR OR DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR ENTER INTO AN AGREEMENT WITH COMPETITORS OF AFFILIATE, OR MAY OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH AFFILIATE'S WEB SITE. AFFILIATE HAS INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE TRANSACTIONS CONTEMPLATED HEREUNDER AND IT IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
21. NO GUARANTEE:
FLOWERS BY VALERIE MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH REFERENCE TO THE TRANSACTIONS AND SERVICES CONTEMPLATED HEREUNDER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF PERFORMANCE, DEALING, OR TRADE USAGE. IN ADDITION, FLOWERS BY VALERIE MAKES NO REPRESENTATION THAT THE OPERATION OF FLOWERS BY VALERIE’S WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND FLOWERS BY VALERIE WILL NOT BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER OF ANY INTERRUPTIONS OR ERRORS. FURTHERMORE, FLOWERS BY VALERIE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE AMOUNT OF COMMISSIONS TO BE PAID TO AFFILIATE HEREUNDER, OR AS TO ANY ASSET OR PROFITABILITY, IF ANY, OR OTHER BENEFIT AFFILIATE MAY DERIVE HEREUNDER, IF ANY.
22. Survival:
Sections 4, 5, 6, the last two sentences of Section 7, 8(c), 10, 11, 18, 19, 20 and 21 of this Agreement shall survive the termination or expiration of this Agreement.
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