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 Provide Commerce, Inc. (the "Company", "us" or "we"), and the establishment of links from your Affiliate website to one or more of our following websites: ProFlowers.com, Berries.com, CherryMoonFarms.com, Redenvelope.com and/or SecretSpoon.com (the "Sites").
1. Enrollment in the Affiliate Program.
First, you need to submit a complete affiliate application. We will evaluate your application and will notify you of your acceptance or rejection in a timely manner. 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.
2. 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.
3. Spam.
Affiliate agrees to not utilize unsolicited communications, or "spam" (defined below), in promoting the Company or its Sites. 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 Sites or products. The ONLY exceptions to this definition are:
a. 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.
b. You may include information on the Company or the Sites 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 Sites posted to a newsgroup or chat room to be spam. Violators will be fined at US$50 per incident.
4. Promotion of Our Affiliate Relationship.
As an Affiliate Site, we will make available to you banner and text links to our Sites via the Google Affiliate Network (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 Site via the Google Affiliate Network.
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 Sites' logos and certain promotional text and images. This Link will connect your site directly to our product sales transaction 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.
5. Our Responsibilities.
We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our Sites. 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.
6. 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. This includes specials provided at within the Google Affiliate Network interface.
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 Marketing Policy:
i. Affiliate agrees not to bid on the Company’s brand keywords, brand misspellings, or any similar trademarks on any pay-per-click search engines or content networks, including, but not limited to: Google Adwords, Yahoo Marketing Solutions Sponsored Search (formerly Overture), Yahoo Search Submit Pro (formerly Paid Inclusion), Microsoft Adcenter, and Ask.com Sponsored Listings. Examples of Company brand words are: berries.com, cherry moon farms, cherrymoonfarms, cherrymoonfarms.com, cherrys berries, porflowers, pro flower, pro flowers, Proflower, Pro-flower, proflowers, Pro-flowers, proflowers.com, proflwers, red envelope, redenvelope, redenvelope.com, secret spoon, secretspoon.com, shari’s berries, sharisberries, sharisberries.com
ii. Affiliates are allowed to bid on keyword strings that include Company brand words plus a promotional modifier (i.e. “proflowers coupons”, “proflowers discount”, “proflowers promo code”). However, Affiliates may NOT bid on brand plus generic modifier words (i.e., “proflowers flowers”, “pro flowers florist”, “proflowers roses”, “proflowers online”, etc.)
iii. When bidding on keyword strings that contain brand plus promotional modifier keywords (i.e., “proflowers coupons”, etc.), the keywords must be set to “exact” match type in Google Adwords and Microsoft Adcenter, and must be set to “standard” match type in Yahoo Marketing Solutions. “Broad” match type keywords are not allowed.
iv. Affiliate may not out-bid the Company, or bid above $0.15 on the brand plus promotional modifier keywords.
v. Affiliates must not represent themselves as the Company’s Site, nor use the Company’s domain name in the visible URLs (i.e., Affiliates can not use www.proflowers.com, www.proflower.com, www.pro-flowers.com, www.pro_flowers.com). Affiliates may use subdirectories in the visible URL such as www.affiliatesite.com/proflowers, but they may not use sub-domains such as proflowers.affliatesite.com.
vi. Affiliates may not use any of the Company's trademarks, service marks, or copyrighted materials without prior permission.
vii. Affiliates found in violation of the above policies may be terminated from the Affiliate Program at the Company’s sole discretion and/or not be compensated or commissioned for sales generated.
e. Promotional Code Policy
i. Affiliate agrees to NOT utilize, advertise or otherwise promote any Company promotional offer or coupon code that is not provided by Google Affiliate Network or made available in Connect Commerce. Affiliates caught posting unauthorized promotional offers or coupon codes will be notified to remove the offer/code. Upon notification, you will have 48 hours to respond and comply or your commissions will be set to 0.
ii. Multiple violations as well as unresponsiveness will lead to termination from the Affiliate Program.
7. 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 vary based upon the volume of sales made on your site.
Commission rates will begin at eight percent (8%) and could reach as high as fifteen percent (15%) of Net Sales (defined below) depending on the amount of sales 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, orders placed for same day delivery through our "Florist Express" service, third party hosted products (e.g., wine.com), gift cards or certificates, international delivery or similar services, order replacements and credits for returned goods ("Net Sales").
8. Commission Payment.
Based on Net Sales received by us in connection with sales of qualified products purchased by your users through a Link to our Sites, Google Affiliate Network will send a commission fee check for the applicable commission fee (less any taxes required to be withheld under applicable law).
9. 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. To find out more please visit: http://www.google.com/ads/affiliatenetwork/
10. 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.
11. Policies and Pricing.
Customers who buy flowers 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.
12. 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.
13. 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.
14. 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 flowers, 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.
15. 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.
16. 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 Sites will constitute binding acceptance of the change.
17. 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.
18. Disclaimers.
We make no express or implied warranties or representations with respect to the Affiliate Program or any flowers 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.
19. 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.
20. 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.
21. Limitation of Liability.
WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
22. 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.
23. 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 NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
24. Governing Law.
This Agreement will be governed by the laws of the United States and the state of California, 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 San Diego, 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.
