Affiliate Agreement
This affiliate agreement ("Agreement") contains the complete terms and conditions that apply to your participation as an affiliate ("Affiliate" or "you") in the affiliate program (the "Affiliate Program") of The Flower Bakery. (the "Company", "us" or "we"), and the establishment of links from your Affiliate website to TheFlowerBakery.com (the "Site").
- Enrollment in the Affiliate Program.
To enroll in the Affiliate Program you must be at least 18 (eighteen) years of age. You must fill the application and submit a completed W-9 form via fax (301) 576-4018 or mail to The Flower Bakery, P.o.box 4239, Silver Spring, MD 20914. By filling out the signup form you will automatically become an AFFILIATE and are bound by the terms of this agreement. Completed W-9 must be received within 7 days of enrollment.
We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Affiliate Program for any reason.
If we reject your application, you are welcome to reapply to the Affiliate Program at any time.
- Prohibited Sites.
Prohibited Sites for advertising Company products or services:
- Sites that promote sexually explicit material or violence.
- Sites that promote discrimination based on race, sex, religion, national origin, or physical disability.
- Sites that promote illegal activities.
- Spam.
Affiliate agrees to not utilize unsolicited communications, or "spam" (defined below), in promoting the Company or its Site. This action may result in the immediate suspension or termination of your Affiliate account with a cancellation of any pending commissions. Affiliate will also be in violation of this Agreement and subject to legal action and be held liable for any financial loss incurred by the Company. Any service interruptions to as a result of Affiliates spamming will be billed to Affiliate at US$200 per hour until service is restored.
For the purpose of this Agreement, "spam" is defined as emailing, in bulk or by single mailing, to anyone who has not specifically requested such information directly from Affiliate regarding the Company, its Site or products. The ONLY exceptions to this definition are:
- Mailing to APPROPRIATE OPT-IN mailing lists where the source does the mailing on Affiliate's behalf. However, use extreme caution when choosing an opt-in mailing list company! Using anything but the most reputable sources could generate spam complaints against Affiliate resulting in suspension or termination.
- You may include information on the Company or the Site in email acknowledgement messages for orders and inquiries that you receive so long as it is stated upfront that you will be sending them an acknowledgement.
The Company also considers ANY type of advertisement about the Company or the Site posted to a newsgroup or chat room to be spam. Violators will be fined at US$50 per incident.
- Promotion of Our Affiliate Relationship.
As an Affiliate Site, we will make available to you banner and text links to our Site (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your site as you desire. The Links will serve to identify your site as a member of our Affiliate Program and will establish a link from your site to the applicable.
a. Banner and Text Links:
Subject to the terms of clause b. below, we will provide you Links which will consist of a graphic image provided by us (and subject to change from time to time in our sole discretion) containing the Company's or any of the Site' logos and certain promotional text and images. This Link will connect your site product page area. By utilizing this Link, users of your site will be able to order, directly from us, any products that were described or referenced on our Site.
b. Agreements Regarding Links:
In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic images (indicating a Link) that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. All Affiliate sites shall display such graphic images prominently in relevant sections of its site. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to the pertinent area of our Site will in no way alter the look, feel or functionality of our site. You also agree use verbatim the link HTML code from your individual password-protected Affiliate Administration area on our site at www.TheFlowerBakery.com. These include sophisticated HTML code. If the HTML code is altered in any way after copying from that Webpage, we take no responsibility for you receiving credit for any sale. Any change you make may cause the tracking to no longer function correctly. When someone clicks on a Qualified Link on your site, a cookie will be set in their browser with your Affiliate ID, and their IP address will be logged with your Affiliate ID. During that visit to our Website or any later visit occur within 90 days of the visitor passing through the Affiliate link, when a purchase is made, the commission will be given based on the existence of the cookie or a match of the IP address in the database. You agree that if a visitor passes through qualified links from two different Affiliates before making a purchase, then the most recent link is credited with the sale. You agree not to challenge or dispute the sales tracking performed by the Affiliate management software we select to administer this program.
- Our Responsibilities.
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our Site. We will be solely responsible for processing every order placed by a customer following a special Link from your site, for tracking the volume and amount of sales generated by your site, and for providing information to Affiliate sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
- Other Responsibilities and Opportunities of Affiliate Sites.
a. Display of Links:
If you qualify and agree to participate as an Affiliate, you shall display Links prominently throughout your site as you see fit and with our consent.
b. Contests and Promotions:
i. As an Affiliate, you will be entitled to participate and promote on your site sweepstakes, contests, and special promotions we may offer. In addition, you will be entitled to earn commissions as set forth in sections 7 and 8 below.
ii. Only offers and promotional tools provided explicitly by the Company for use on an affiliate site are valid.
iii. The unauthorized use of promotional offers taken from another website is strictly forbidden and may result in the termination of this Agreement.
c. Compliance with the Agreement:
We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
d. Search Engine policy:
i. Affiliates may not use any of the Company's or the Sites' visible URLs - you must not represent yourself as, for example, the TheFlowerBakery Site (i.e., Affiliates can't use www.TheFlowerBakery.com, www.FlowerBakery.com, but they can use www.affiliatesamplesite.com).
ii. Affiliates may not use any of the Company's trademarks, service marks, or copyrighted materials without prior permission.
iii. Affiliates may not outbid the Company within any online or automated search mechanisms with regard to any branded terms of the Company or of the Site. Our branded terms are: TheFlowerBakery, TheFlowerBakery.com and the names of the arrangements.
iv. Violation of the above terms will result in your termination from the Affiliate Program immediately.
- Commission Determination.
The purchase price of Site products will count toward the total sales during the calendar month in which such Site's products are sold. Only products that are sold by us (to users of your site linked to our Site), shipped to a customer, and for which we have received full payment will qualify for a commission. Commission rates will be five percent (5%) of Net Sales (defined below) generated by Affiliate. Commissions are up to the sole discretion of the Company and are eligible for change at any time. For purposes of this Agreement, "Net Sales" shall mean amounts collected by us from customers purchasing products directly through your Affiliate Links, excluding all sales taxes, duties, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, international delivery or similar services, order replacements and credits for returned goods ("Net Sales").
- Commission Payment.
Based on Net Sales received by us in connection with sales of products purchased by your users through a Link to our Site, we will send a commission fee payment for the applicable commission fee (less any taxes required to be withheld under applicable law). Payments will be made via PayPal. Commission payments will be made via PayPal only if your accumulated commission total reached $25 or more.
- Reports of Sales.
You will be given a password and have the ability to enter a password-protected site to receive your sales statistics on a daily basis.
- Your Responsibilities.
You are solely responsible for ensuring that reviews, descriptions, and articles on your site comply with applicable copyright and other laws. You must have express permission to use another party's copyrighted or other proprietary material. We are not responsible for violations. You must maintain a PayPal account to receive commission payments.
- Policies and Pricing.
Customers who buy gifts through the Affiliate Program will be deemed to be customers of the Company. 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 products sold under the Affiliate Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect products that you already have listed on your site, you should not include price information in your product descriptions.
- Publicity.
You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent.
- Licenses and Use of Company Logos and Trademarks.
a. WE GRANT YOU A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS AND UNDER THE CONDITIONS PROVIDED FOR HEREIN, TO USE OUR LOGOS, TRADE NAMES, TRADEMARKS, AND SIMILAR IDENTIFYING MATERIAL RELATING TO US (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF SELLING OUR PRODUCTS ON YOUR SITE FOR THE COMPANY. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY WITHOUT WRITTEN PERMISSION. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS WHILE YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE PROGRAM.
b. You shall not make any specific use of any Licensed Materials for purposes other than selling our products on your site for the Company, without first submitting a sample of such to us and obtaining the prior written consent of your account executive here at the Company. We reserve all of our rights in the Licensed Materials and of our other proprietary rights. We may revoke your license at any time, by giving you written notice.
c. You grant to us a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the effective date of the expiration or termination of this Agreement.
- Obligations Regarding Your Site.
a. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting gifts, descriptions, and references on your site and linking those descriptions to our site; the accuracy and propriety of materials posted on your site (including, but not limited to, all product-related materials); ensuring that materials posted on your site do not violate or infringe upon the rights of any third party and are not otherwise illegal.
b. We disclaim all liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
- Term of the Agreement.
The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commission fees on sales occurring during the term, and fees earned through the date of termination will remain payable only if the related product orders are not cancelled. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
- Modification.
We may modify any of the terms and conditions contained in this Agreement, at any time in our sole discretion. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on our Site will constitute binding acceptance of the change.
- Relationship of Parties.
You and the Company are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf.
- Disclaimers.
We make no express or implied warranties or representations with respect to the Affiliate Program or any gifts sold through the Affiliate Program (including, without limitation, warranties of fitness, merchantability, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
- Representations and Warranties.
You hereby represent and warrant to us as follows:
a. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable in accordance with its terms.
b. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions discussed herein 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 you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon you or your assets.
c. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use your trademarks in the manner contemplated herein, and such grant does not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
d. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action discussed herein.
e. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
- Confidentiality.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.
- Assignment/Transfer.
We may assign this Agreement to any successor. Affiliate may not assign, sell or transfer this Agreement.
- Limitation of Liability.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA, SAVING, SPECIAL DEMAGED OR OTHER INCIDENTAL DEMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER WE DO NOT WARRANT THAT THE AFFILIATE PROGRAM WILL MEET THE AFFILIATE’S REQUIRMENTS OR THAT THE OPERATION OF THE SITE AND ORDERING SYSTEM OR AFFILIATE TRACKING SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE.
FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU FOR THE PREVIOUS THREE MONTHS UNDER THIS AGREEMENT.
- Indemnification.
You hereby agree to indemnify and hold harmless the Company, and its parents, subsidiaries and affiliates, and their directors, officers, employees, agents, stockholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
- Independent Investigation.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
- Force Majeure.
Neither Company nor the Affiliate shall be liable under this Agreement by reason of any failure or delay in performance of its obligations in this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other cause which is beyond the reasonable control of Company or the Affiliate.
- Governing Law.
This Agreement will be governed by the laws of the United States and the state of Maryland, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in the county of Montgomery, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
- Sole Agreement.
This Agreement constitutes the sole agreement between Us and the Affiliate regarding the Affiliate Program.
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