LEGAL AGREEMENT & LICENSE
FOR USE OF WEB-SITE AND RELATED PRODUCTS & SERVICES
This Agreement last updated on: January 31st
2006
-- See Update Summary below. --
This Agreement describes the legal rights and
responsibilities of DesignerFloral.com™, LLC (the “Company”),
Visitors to our web-site, our Customers, and the Floral Designers
approved for participation in our Floral Designer Membership
Network. Please read this Agreement carefully and in its entirety.
I. Terms and Terminology
II. Products, Services, Forms and Information
III. Order Procedures
IV. Web-Site Use License
V. Acceptance of Terms
VI. Required Information and Reliance
VII. Limits of Liability – Other Warranties Excluded
VIII. Floral Designer Membership Agreement
IX. Link and Banner Exchange
X. Indemnification for Your Actions
XI. Affiliates Products, Services and Internet
XII. Responsibilities – Arbitration of Disputes – Non-Waivers
XIII. Trademarks, Copyrights and Service Marks
XIV. Miscellaneous
XV. Notices and Legal Conditions Precedent
I. Terms and Terminology
As used in this Agreement, the terms:
'Affiliate' (when capitalized) means and refers to a person or
company who is participating in the 'Floral Designer Membership
Network' of DesignerFloral.com™ in accordance with the terms and
conditions of the ‘Floral Designer Membership Agreement’ as
hereafter described in this Agreement; and 'affiliate' (when not
capitalized) means and refers to a person or company who may have
a relationship with DesignerFloral.com™ which may constitute an
'affiliate', 'affiliation' or 'affiliated' relationship at law or
in fact for limited purposes, not based on the participation of
such person or company in the 'Floral Designer Membership Network'
of DesignerFloral.com™. Neither the Affiliates (participating in
the 'Floral Designer Membership Network' of DesignerFloral.com™)
nor any persons or companies found or determined in fact or law to
be affiliates of DesignerFloral.com™ for any other purpose are or
shall be deemed to be authorized agents or representatives of
DesignerFloral.com™ for any purpose beyond their performance of
the limited scope of the service provided by or to
DesignerFloral.com™. Referrals are made by DesignerFloral.com™
to Affiliates only as independent contractors, and no such
referral shall make or constitute such Affiliate as an ‘agent’ of
DesignerFloral.com™ for any purpose, it being understood and
agreed that each such Affiliate accepts such referrals for their
own account, with full responsibility to create a Floral Design in
conformance with the Order referred to such Affiliate and to make
‘delivery’ of such Floral Design at its own cost and expense and
without any responsibility of DesignerFloral.com™ therefor, and
no action by any 'Affiliate' (including specifically but without
limitation the act of making the ‘delivery’ of a completed Floral
Design pursuant to an Order referred to the Floral Designer from
DesignerFloral.com™) is or shall be binding on or be deemed to be
taken on behalf of DesignerFloral.com™ in any respect.
'Affiliate ID Number' means and refers to the unique identifier
assigned to each Affiliate by DesignerFloral.com™ at the time
when the Affiliate is approved to participate in the 'Floral
Designer Membership Network' of DesignerFloral.com™.
'Affiliate Program' means and refers to the agreement of
DesignerFloral.com™, to pay a 'commission' (pursuant to the
Commission Schedule in effect at the date the Order is received
and referred to the Affiliate) to those individuals or companies
who have officially joined and accepted the duties and obligations
of membership in the ‘Floral Designer Membership Network’ and
agreed to be bound by the terms and conditions of the 'Floral
Designer Membership Agreement’ of DesignerFloral.com™, as
hereafter described in this Agreement. See the Commission Schedule
for complete details.
'Agreement' and 'License' mean and refer to the current and
updated version of this entire document, together with the other
documents incorporated by reference herein, as amended from time
to time, and available continually on this web-site, relating to,
describing and governing the relations of DesignerFloral.com™
with all other persons and companies who may utilize this web-site
for any purpose, including to request or obtain any product or
service from or through DesignerFloral.com™, whether or not such
product or service is then offered, available or described on this
web-site.
'Company' means and refers to Designer Floral.com, LLC, a Nevada
Limited Liability Company, which is also referred to herein
alternatively as Designer Floral.comTM and/or DesignerFloral.com™,
which Company is the sole owner and sole authorized licensor of
all of the rights, title and interests in the entirety of the
‘intellectual property’ appearing on and/or utilized in connection
with the Company’s web-site at www.DesignerFloral.com.
‘Commission Schedule’ means and refers to the document entitled
‘Commission Schedule’, as modified or amended from time to time,
which is incorporated by this reference into this Agreement as
though fully set forth here. See the Commission Schedule for
complete details.
'Contact Information' means and refers to the information provided
to DesignerFloral.com™ for use by DesignerFloral.com™ and its
Affiliates.
‘Copyright’ means and refers to the legal protections afforded
under US copyright (17 USC §106), international treaties and other
intellectual property laws which prohibit appropriation or copying
of original works and provide civil and criminal penalties for
copyright violations. The text, visual appearance, photographs and
other elements of this web-site are copyrighted by
DesignerFloral.com, LLC, which is the sole owner and sole
authorized licensor which may permit any use of any aspect of this
web-site.
'Customer' means and refers to a person who places an Order with
DesignerFloral.com™ requesting a product or service to be
delivered by DesignerFloral.com™ directly or by referral to an
Affiliate through the Floral Designer Membership Network within
the 50 States of the United States of America.
'Customer Service' means and refers to the companies and/or
individuals who are appointed by DesignerFloral.com™ by a written
letter of appointment, or written contract, describing and
granting specific authority to act as an authorized representative
of DesignerFloral.com™ to interface with Customers on behalf of
DesignerFloral.com™. Excepting only the Manager designated in the
Operating Agreement of DesignerFloral.com™ , the Company does not
have any 'common law' officers, agents, employees or
representatives, and no person is authorized to represent
DesignerFloral.com™ in any manner, way or respect, in the absence
of a written letter of appointment, or a written contract,
granting such authority executed by the Manager named in the
Operating Agreement of DesignerFloral.com™.
‘Design Elements’ means and refers to each separate distinguishing
feature, flower, component and part of a design which may be
arranged in any number of configurations, designs or displays to
produce an unique or custom artistic design.
‘Design Elements DatabaseTM’ means and refers to the proprietary
database developed by DesignerFloral.com™ to retain and
facilitate communication with Floral Designer Affiliates,
Customers and others about the particular combination of Design
Elements involved in or selected in relation to an Order.
'DesignerFloral.com™', and 'we', 'us', and 'our', mean and refer
to Designer Floral.com, LLC (a Nevada Limited Liability Company).
'Fee Schedule' means and refers to the document entitled 'Fee
Schedule', as modified or amended from time to time, which is
incorporated by this reference into this Agreement as though fully
set forth here. See the Fee Schedule for complete details.
‘Floral Designer’ means and refers to a person who performs the
creative and artistic service of floral design, as distinguished
from a person who is merely trained or qualified as a flower
arranger.
‘Floral Designer Membership Agreement’ means and refers to the
acceptance of an application from a Floral Designer which has been
reviewed and determined to be of a quality acceptable to
DesignerFloral.com™ for participation in the Floral Designer
Membership Network subject to the terms, conditions, limitations,
rights and obligations set forth in this Agreement.
‘Floral Designer Membership Network’ means and refers collectively
to those Affiliates who have been accepted and agreed to be bound
by the Floral Designer Membership Agreement. Each Affiliate who is
a member of the Floral Designer Membership Network is qualified to
receive referrals from DesignerFloral.com™ of Orders for custom
floral designs placed through the web-site of, or by phone, fax,
email or other means of communication with, DesignerFloral.com™.
Referrals are made by DesignerFloral.com™ in its sole and
absolute discretion, and without any obligation to allocate any
Order, or any particular number of Orders, to any Affiliate on
account of such Affiliate’s membership in the Floral Designer
Membership Network.
'Link Exchange' means and refers to and encompasses the pages on
the web-site entitled 'Our Link Exchange', 'Add a Banner Link' and
'Link To Us' which constitute and comprise the reciprocal Link
Exchange of DesignerFloral.com™. The Link Exchange is designed to
permit any one with a web-site:
(1) to obtain a link to the web-site of DesignerFloral.com™,
and/or
(2) to post a link to another web-site into the Link Exchange.
Any link correctly posted into the Link Exchange will
automatically appear on the page entitled 'Our Link Exchange' on
the web-site of DesignerFloral.com™. All links posted are subject
to review by DesignerFloral.com™ and will be removed if
considered to be unsuitable or inappropriate to appear on the
DesignerFloral.com™ web-site in the sole and absolute discretion
of DesignerFloral.com™.
'Liquidated Damages' means and refers to the amount payable by
DesignerFloral.com™ in the event of an error, dispute or claim
for damages asserted by a Customer or any other person (a
“Claimant”) against DesignerFloral.com™ whether arising in
‘contract’ or ‘tort’ and whether the damages allocable to
DesignerFloral.com™ are denominated as ‘compensatory’ or
‘exemplary’, as 'liquidated damages', 'compensation', 'refund' or
other name. The 'Liquidated Damages' in any case shall not exceed
the amount received by DesignerFloral.com™ for the product or
service giving rise to the claim of the Claimant, and shall be
accepted by the Claimant as the full amount of compensation
attributable to and recoverable from DesignerFloral.com™ for all
claims, damages and liabilities asserted (or which may be
asserted) against DesignerFloral.com™ in relation to the act,
incident or event giving rise to the Claimant’s claim against
DesignerFloral.com™.
‘Manager’ means and refers to the person or company named as the
Manager in the Operating Agreement of the Company, when acting for
and on behalf of the Company in a decision making capacity, and
not in any other capacity. When the Manager named in the Operating
Agreement of the Company is a company, such Manager shall act
through the duly authorized officers and employees of such
Manager, all of which officers and employees are and shall be
deemed to be and remain as officers and employees of the company
named as Manager, and not as officers or employees of
DesignerFloral.com™ in any way or capacity.
‘Operating Agreement’ means and refers to that certain document
entitled “Operating Agreement” which is executed by the duly
authorized signatures of the Members and Manager of the Company in
accordance with the law of the State where the Company was
chartered.
'Order' means and refers to a request directed to
DesignerFloral.com™ to provide a service or product (whether
directly by DesignerFloral.com™ or by referral to an Affiliate
participating in the Floral Designer Membership Network) which is
accompanied by the appropriate payment as specified in the Fee
Schedule. See the Fee Schedule for complete details.
'Partner' means and refers to a person or company who has entered
into a formal written 'partnership agreement' with
DesignerFloral.com™, for the purposes and subject to the
limitations specified in such 'partnership agreement'. As of this
date, DesignerFloral.com™ has no 'partners', is not participating
in any 'partnerships', and has not executed any 'partnership
agreements', and no action of any claimed or purported 'partner'
is or shall be binding on DesignerFloral.com™ in any respect.
'Primary Contact' means and refers to the person who is designated
in the Order placed by a Customer with DesignerFloral.com™ as the
preferred person for DesignerFloral.com™, and/or any Affiliate to
whom such Order is referred, to contact in relation to any matter
or issue pertaining to the Order. DesignerFloral.com™, and any
Affiliate to whom an Order has been referred, will generally
attempt to contact the person designated as the Primary Contact
before attempting to contact other persons associated with the
Order, but is not under any obligation to do so.
'Privacy Policy' means and refers to the document entitled
'Privacy Policy', as modified or amended from time to time, which
is incorporated by this reference into this Agreement as though
fully set forth here. See the Privacy Policy for complete details.
'Responsible Person' means and refers to the person, and the name,
mailing address and other contact information of the person, whose
credit card (or debit card or ACH check or other payment medium)
is utilized for payment in connection with an Order placed by a
Customer with DesignerFloral.com™, and/or the person who assumes,
or has assumed, financial responsibility to make payment for an
Order placed by a Customer with DesignerFloral.com™. The
Responsible Person will typically be the Primary Contact in
connection with an Order, unless another person is designated to
be the Primary Contact by the Responsible Person.
‘Trademarks’ mean and refer to those specific words and phrases
registered and/or used by DesignerFloral.comTM as “trademarks”,
“service marks”, “trade names”, which are identified by the
symbols “TM” or “®”, which include without limitation: “DesignerFloral.comTM”,
“Who Sent Your ThoseTM” and “More than FlowersTM” and the LOGO
appearing on the DesignerFloral.com web-site. The Company hereby
disclaims all rights in or to any “trademark”, “service mark” or
“trade name” which is owned by any other person or company,
notwithstanding any incidental mention or reference to any such
“trademark”, “service mark” or “trade name”, whether with or
without the symbols “TM” or “®” appearing in connection with such
incidental mention or reference, and hereby acknowledges that all
such “trademarks”, “service marks” and “trade names” are and
remain the sole and exclusive property of their respective lawful
owners.
‘Visitor’ means and refers to a person who obtains the ability to
see, read or view any printed matter, photograph or other aspect
of the Designer Floral.comTM web-site, regardless of the means or
manner by which such ability is obtained.
‘We’, ‘Us’ and ‘Our’ means and refers only to Designer Floral.com,
LLC, a Nevada Limited Liability Company, which is also referred to
herein alternatively as Designer Floral.comTM and/or
DesignerFloral.com™, which is the sole owner and sole authorized
licensor of all of the rights, title and interests in the entirety
of the ‘intellectual property’ appearing on and/or utilized in
connection with the company’s web-site at www.DesignerFloral.com.
'Web-Site' and ‘web-site’ as used in this Agreement mean and refer
to the web-site which appears at the URL: www.DesignerFloral.com
together with all subsidiary and related pages hosted on the
server hosting www.DesignerFloral.com.
'You', 'your' and 'yourself' mean and refer to each Visitor,
Customer and Affiliate of the Company who is or has or will at any
time view the web-site of Designer Floral.comTM, and includes
without limitation the person reading this Agreement and a person
who has entered into or contemplates entering into a contractual
relationship with DesignerFloral.com™ to obtain or provide a
product or service to or through DesignerFloral.com™.
II. Products, Services, Forms and Information
DesignerFloral.com™, through its web-site at 'www.DesignerFloral.com™',
provides an Order procedure utilizing a proprietary Design
Elements DatabaseTM combined with a procedure to promptly refer
each Order received to an Affiliate who has been approved to be a
member of the Floral Designer Membership Network by
DesignerFloral.com™ based on a review of the quality of the
floral design services provided by each of the Floral Designers.
All products, services, forms and information provided by
DesignerFloral.com™ and its web-site are provided and intended
solely for entertainment purposes, are protected by US and
international Copyright and other intellectual property laws, and
are and shall be and remain the sole and exclusive property of
DesignerFloral.com™.
III. Order Procedures
Upon receipt of an Order from a Customer, including payment of
the applicable amount specified in the Fee Schedule, the design
elements selected by the Customer and other Order information are
stored in the proprietary Design Elements DatabaseTM of
DesignerFloral.com™ and promptly referred to a Floral Designer
Affiliate to complete the design and delivery of the Order in
accordance with the Customer’s Order instructions.
Payment for the Order is collected by DesignerFloral.com™ through
its ‘secure server’ Credit Card Merchant Account, and payment to
the Floral Designer Affiliate is made by DesignerFloral.com™ when
the Order is delivered to the Customer in accordance with the
governing Commission Schedule.
The Design Elements specified in the Order are communicated
directly from Design Elements DatabaseTM to the Floral Designer
Affiliate for use by the Floral Designer in creating an
appropriate Floral Design consistent with the Order instructions
provided by the Customer. The Floral Designer Affiliate has
complete artistic freedom in the design of a suitable Custom
Floral DesignTM consistent with the Customer’s instructions and
the Design Elements specified in the Order.
Other services may also be undertaken by DesignerFloral.com™ from
time to time, in connection with an Order or pursuant to a
separate agreement between the Customer and DesignerFloral.com™.
All actions taken by DesignerFloral.com™ in response to an Order
or separate agreement are understood and deemed to be specifically
authorized by the Customer and to be within the scope of the
authority conferred.
The forms utilized by DesignerFloral.com™ for placing and
processing Orders have been designed to collect certain
information about the Customer, including, the name and billing
address of the Customer, the name and address where the Floral
Design is to be delivered and other information requested or
required in connection with the Order. The information collected
by DesignerFloral.com™ is stored in the DesignerFloral.com™
database for use by DesignerFloral.com™ and the Floral Designer
Affiliate in connection with the processing and delivery of the
Order. Other uses of the information may be made by
DesignerFloral.com™ from time to time subject to and consistent
with the Privacy Policy of DesignerFloral.com™.
IV. Web-Site Use License
DesignerFloral.com™ grants to each Visitor, Customer and to
each other user of this web-site a personal, non-transferable,
non-exclusive, limited license to use this web-site ( including
the scripts, code and software embedded and/or included in the
web-site and/or necessary to the proper functioning of the
web-site ) in the form and with the content provided by
DesignerFloral.com™, and as administered and maintained by
DesignerFloral.com™, subject to all terms and provisions of this
Agreement. This limited license and right to use is specifically
limited to the use of the web-site on the Internet host computer(s)
designated by DesignerFloral.com™, and to the use of the web-site
in the form provided by DesignerFloral.com™ for the purpose of
accessing and updating name, address and other pertinent
information in connection with the placing or delivery of Orders
through the DesignerFloral.com™ web-site.
Each user of this web-site understands, acknowledges and agrees
that no part of the web-site may be translated, reverse
engineered, reverse compiled or disassembled, that the web-site
may not be copied, re-moved or re-located to, or reproduced on,
any other computer or location, and that no alteration,
modification or derivative work may be made from the web-site,
without the express prior written consent of DesignerFloral.com™.
The limited license granted by this section is expressly
conditioned upon and shall be in effect only for the period that
the user is in full compliance with the terms, conditions and
limitations specified in this Agreement, and this limited license
shall be deemed to immediately cease and terminate upon any breach
or failure of compliance with any term or provision of this
Agreement for any reason.
V. Acceptance of Terms
By viewing or using this web-site to obtain or submit
information or to place or receive an Order for any product or
service provided from or through DesignerFloral.com™, you accept
and agree to be bound by the terms and provisions of this
Agreement to the same extent as though you had signed it in person
in your own handwriting. You understand and agree that we may
modify or amend ('update') this Agreement at any time, that such
changes shall become effective immediately when posted on the
DesignerFloral.com™ web-site, without other notice to you than
such notice as is given by the posting of the modified Agreement
on the DesignerFloral.com™ web-site, and that your sole remedy in
the event you do not agree to continue to be bound by the changed
Agreement shall be to suspend or terminate your use of the
web-site and related facilities and services of
DesignerFloral.com™. To facilitate compliance with this
provision, you agree to review this Agreement periodically, and
you agree that each time you access this web-site or otherwise
obtain a product, utilize a service or accept a benefit from
DesignerFloral.com™, you thereby re-affirm your acceptance of the
then current version of this Agreement. You also agree to comply
fully with all applicable provisions of the Fee Schedule, the
Privacy Policy and the Commission Schedule, which are incorporated
herein by this reference as though fully set forth. And you
acknowledge, agree and understand that it is your sole remedy to,
your obligation to, and that you will, whenever you do not agree
to continue to be bound by this Agreement in any respect or for
any reason, immediately suspend or terminate your use of this
web-site.
VI. Required Information and Reliance
You understand, acknowledge and agree that the
DesignerFloral.com™ is and shall be entitled to collect and
maintain information about you in relation to each Order you place
or receive from DesignerFloral.com™, including without limitation
your name, address, telephone, certain financial information
necessary or convenient to facilitate payments to or from
DesignerFloral.com™ and other pertinent information.
You further understand and agree that all information you provide
to DesignerFloral.com™ must be true, accurate and complete, that
DesignerFloral.com™ will rely upon the information that you
provide, and that it is your sole, exclusive and personal
obligation (which you may not delegate, assign or transfer to any
other person) to provide and maintain at all times your correct
name, address, telephone and other information connected with each
Order and payment made to or from DesignerFloral.com™ and/or in
connection with each request to DesignerFloral.com™ for any
product, service or benefit.
Therefore, it is understood and agreed that each Responsible
Person and each Affiliate does hereby (jointly and severally, if
applicable) covenant and agree to 'protect and defend', to 'save
and hold-harmless' and to 'indemnify' DesignerFloral.com™
(including its officers, agents, representatives, employees,
managers, members and innocent Affiliates), from and against any
claim, liability or damage arising from or related in any way to
any inaccuracy in, or failure to accurately maintain, all
information provided to DesignerFloral.com™ in relation to each
Order and payment made to or from DesignerFloral.com™.
VII. Limits of Liability – Other Warranties Excluded
When you place an Order with DesignerFloral.com™ or through
the DesignerFloral.com™ web-site, DesignerFloral.com™ agrees to
make a prompt referral of your order, including all Design
Elements selected and other information provided, to an approved
Floral Designer Affiliate participating in the Floral Designer
Membership Network. The Floral Designer is authorized to use their
independent artistic judgment to create a custom design utilizing
the Design Elements and other information you have provided, and
therefore no particular floral design can be predicted, or
produced, with regularity or assurance, since Floral Designers are
selected and approved for Affiliate membership in the Floral
Design Membership Network based on factors such as creativity,
originality and artistry, instead of commitment to repetitive
arrangement of standard decoration elements.
IN THE EVENT THAT ANY CUSTOMER OF DesignerFloral.com™ IS
DISSATISFIED WITH THE QUALITY OF THE FLORAL DESIGN PRODUCED OR
DELIVERED IN RESPONSE TO AN ORDER PLACED WITH OR THROUGH
DesignerFloral.com™, THE SOLE RIGHT AND REMEDY OF THE CUSTOMER,
AND THE SOLE OBLIGATION OF DesignerFloral.com™, SHALL BE TO ISSUE
A REFUND TO THE CUSTOMER, WHICH MAY BE A FULL OR A PARTIAL REFUND
DEPENDING ON THE CIRCUMSTANCES, OF THE AMOUNT PAID BY YOU TO
DesignerFloral.com™, IN CONNECTION WITH THE ORDER. A REQUEST FOR
REFUND MUST BE SUBMITTED TO DesignerFloral.com™ WITHIN SEVEN (7)
CALENDAR DAYS AFTER DELIVERY OF THE ORDER, AND NO REFUND WILL BE
AUTHORIZED UNLESS THE REQUEST FOR A REFUND IS SUBMITTED TO
DesignerFloral.com™ WITHIN SEVEN (7) CALENDAR DAYS AFTER DELIVERY
OF THE ORDER.
ALL OTHER 'WARRANTIES' AND 'GUARANTEES' ARE EXPRESSLY EXCLUDED,
BOTH EXPRESS AND IMPLIED (INCLUDING NO WARRANTIES OF
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
UNDER NO CIRCUMSTANCES SHALL DesignerFloral.com™, OR ANY
AFFILIATE OF DesignerFloral.com™, BE LIABLE OR RESPONSIBLE FOR
ANY AMOUNT OF DAMAGES (WHETHER CALLED 'ACTUAL DAMAGES', 'PUNITIVE
DAMAGES', 'LIQUIDATED DAMAGES' OR OTHERWISE CHARACTERIZED)
EXCEEDING THE ACTUAL AMOUNT PAID TO AND RECEIVED BY
DesignerFloral.com™ FOR THE PURCHASE OF THE PRODUCT OR SERVICE
GIVING RISE TO THE CLAIMED LIABILITY.
VIII. Floral Designer Membership Agreement
Floral Designers who apply to participate in the Floral
Designer Membership Network (the “Network”) understand,
acknowledge and agree:
1. That DesignerFloral.com™ permits participation in the Network
only by Floral Designers who display and demonstrate the ability
to consistently produce high quality floral designs with
significant distinction and artistic components, expression and
interpretation, rather than standard, generic or ready-made
arrangements.
2. That qualification for and continued participation in the
Network is discretionary with DesignerFloral.com™ and any Floral
Designer who fails to provide floral designs of the requisite
quality may be removed from the Network in the sole discretion of
DesignerFloral.com™.
3. That DesignerFloral.com™ will allocate referrals to Floral
Designers on a flexible basis taking into consideration the nature
of the Order, the place and manner of delivery specified, and the
particular skills of the Floral Designer Affiliates available to
receive the referral of the Order, but that no Floral Designer
Affiliate shall be entitled to receive any specific referral or
number of referrals, regardless of the number of referrals made to
any other Floral Designer Affiliate.
4. That DesignerFloral.com™ will pay to the Floral Designer
executing the referred Order the amount of the commission
specified in the Commission Schedule in effect at the date of the
Order, within twenty-one (21) business days after delivery of the
product or service Ordered according to the Customer’s directions.
5. That the decision to make a refund to a dissatisfied Customer
rests solely in the sound discretion and business judgment of
DesignerFloral.com™, without any requirement that
DesignerFloral.com™ consult with or obtain any consent or
concurrence from the Floral Designer who produced the dissatisfied
Customer.
6. That, upon making any refund to a dissatisfied Customer, the
full amount of the Commission paid or accrued by
DesignerFloral.com™ to the Floral Designer Affiliate will be
charged back to the Floral Designer Affiliate who produced the
dissatisfied Customer, and that two or more refunds charged back
to a Floral Designer Affiliate may cause the removal of the Floral
Designer from further participation in the Network.
7. That the names, addresses, telephones and other contact
information pertaining to all Customers placing Orders through
DesignerFloral.com™ are proprietary to and shall be deemed to be
the sole property of DesignerFloral.com™, and not of any Floral
Designer Affiliate, and each Floral Designer Affiliate covenants
and agrees to hold all information pertaining to such Customers
and Orders in complete confidence, and to use such information
only to promote the business and benefit of DesignerFloral.com™,
and not for any other or personal or business purpose.
8. That the floral designs created by a Floral Designer Affiliate
for or in response to an Order received from or through
DesignerFloral.com™ shall be deemed to be the sole ‘intellectual
property’ of DesignerFloral.com™ and not of the Affiliate, and
shall at all times be identified to the Customer by use of
appropriate tags and labels furnished by DesignerFloral.com™, as
a product or service of DesignerFloral.com™, and without any
identification of the Affiliate providing the specific floral
design service for or in response to the Order.
9. That each Floral Design Affiliate is acknowledged to be an
independent contractor with separate business activities and
business identity, with separate customers, and with separate
rights and responsibilities, which must be kept completely
separate and segregated from the business activities, business
identity and Customers of DesignerFloral.com™, and therefore each
Floral Designer Affiliate hereby covenants and agrees to make
their good faith best efforts at all times to maintain such
separation and segregation of business activities, business
identity and Customers of DesignerFloral.com™ from its other
customers, in order to consistently enhance and avoid diminution
of the business activities, business identity and Customers of
DesignerFloral.com™, by virtue of such actions as are within the
control or authority of the Floral Designer Affiliate.
10. That DesignerFloral.com™ hereby specifically disclaims any
right, title, interest or claim to any of the separate business
and customers of the Floral Designer Affiliate developed without
the use or participation of the web-site of DesignerFloral.com™
or any of the personnel, facilities or other products or services
(including without limitation advertising services) provided by or
through or becoming available to the Floral Designer Affiliate by
virtue of his/her/its connection to or relationship with
DesignerFloral.com™, and each Floral Designer Affiliate hereby
specifically disclaims any right, title, interest or claim to any
of the business or Customers of DesignerFloral.com™ or developed
by the use or participation of the DesignerFloral.com™ web-site
or any of the personnel, facilities or other products or services
(including without limitation advertising services) provided by or
through or becoming available to the Floral Designer Affiliate by
virtue of his/her/its connection to or relationship with
DesignerFloral.com™.
IX. Link and Banner Exchange
DesignerFloral.com™, offers
a Link and Banner Exchange as part of this web-site (the 'Link
Exchange'). The Link Exchange permits any person to obtain a
Banner or Link to the web-site of DesignerFloral.com™, or to post
a Link or Banner ad which will then automatically appear on the
web-site of DesignerFloral.com™, whenever the page entitled 'Our
Link Exchange' is activated by an Internet Browser like 'Internet
Explorer®' or 'Netscape®'.
Therefore, as a user of the web-site, (1) you understand and agree
that DesignerFloral.com™ has no ability to control the type or
nature of any Link or Banner ad which might be posted on the
web-site by any third person, and (2) you release and discharge
DesignerFloral.com™ from any liability for, and you covenant and
agree that DesignerFloral.com™ is not (and shall not be) liable
under any circumstances for, any costs or damages, whether for
negligence or otherwise, on account of or in relation to the
appearance of any Link or Banner ad on any web-site on any one or
on multiple occasions, and further (3) you covenant and agree to
'protect and defend', to 'save and hold-harmless' and to
'indemnify' DesignerFloral.com™ from and against any claim,
liability or damage arising from or related to the appearance or
persistence of any Link or Banner ad on any web-site, or the
removal or disappearance of any Link or Banner ad from any
web-site, whether or not you have notified DesignerFloral.com™
regarding the appearance or non-appearance of the Link or Banner
ad in the Link Exchange, or on the web-site at
www.DesignerFloral.com, whether or not you have notified
DesignerFloral.com™ that you consider the Link or Banner ad to be
objectionable, and whether or not you have requested
DesignerFloral.com™ to remove the Link or Banner ad from the Link
Exchange, from the web-site at www.DesignerFloral.com, or from any
other web-site. And further, as a person who is or may be posting a Link or Banner
ad in the Link Exchange of DesignerFloral.com™: (1) you
understand and agree that DesignerFloral.com™ has and reserves
the exclusive right, privilege and discretion to remove any Link
or Banner ad from the Link Exchange at any time, whether with or
without cause, and (2) you release and discharge
DesignerFloral.com™ from any liability for, and you covenant and
agree that DesignerFloral.com™ is not (and shall not be) liable
under any circumstances for, any costs or damages, whether for
negligence or otherwise, on account of or in relation to either
(a) the appearance of any Link or Banner ad on this web-site, or
(b) the removal or disappearance of any Link or Banner ad from
this web-site, and further (3) you covenant and agree to 'protect
and defend', to 'save and hold-harmless' and to 'indemnify'
DesignerFloral.com™ from and against any claim, liability or
damage arising from or related to the appearance or persistence of
any Link or Banner ad on any web-site, or the removal or
disappearance of any Link or Banner ad from any web-site, whether
or not you have notified DesignerFloral.com™ regarding the
appearance or non-appearance of the Link or Banner ad on the
web-site. X. Indemnification for Your Actions
You agree to 'protect and defend', to 'save and hold-harmless' and
to 'indemnify' DesignerFloral.com™ (its officers, agents,
representatives, employees, managers, members and innocent
Affiliates) from and against any claim, liability or damage
arising from or related in any way to your actions or conduct,
whether arising from or related to your use of the web-site of
DesignerFloral.com™, whether arising from or related to your
marketing, use or delivery of any product or service, or whether
arising from or related to your interactions or relations with
Affiliates of DesignerFloral.com™, or to any interaction or
relation with any member of the general public or any other
person. XI. Affiliates Products, Services and Internet
You acknowledge, understand and agree that DesignerFloral.com™
does not own or control the Internet or any of its Affiliates, and
that DesignerFloral.com™ cannot and does not accept any
responsibility for, does not warrant or guarantee, and cannot
assure that any product or service received from any Affiliate
will be as you intended or desired. You further acknowledge,
understand and agree that DesignerFloral.com™ can not and does
not warrant that your use of the Internet or any web-site will be
uninterrupted, error free or productive of any particular result,
and that DesignerFloral.com™ can not and does not guarantee
connectivity to any web-site at any particular time or for any
length of time. In addition, you acknowledge, understand and agree
that DesignerFloral.com™ can not and does not make any warranty
as to the accuracy, completeness, usefulness, safety,
merchantability, suitability or fitness for a particular purpose
of any service or product provided by DesignerFloral.com™ or any
Affiliate, or that any file, link, computer code, cookie or other
electronic code, message or messenger will be free from defects or
viruses, worms, 'Trojan horses' or other code that manifest
contaminating or destructive properties, and you understand that
you are solely and exclusively responsible for implementing
sufficient procedures and checkpoints to satisfy your particular
requirements for accuracy of data in files and for maintaining
means external to the Internet for the reconstruction of any lost
data.
The web-site of DesignerFloral.com™ (including all information
and related script, code and software) is provided on an 'AS IS'
and 'AS AVAILABLE' basis without any warranties whatsoever (either
express or implied), including without limitation, all warranties
of title, of suitability, of merchantability and of fitness for a
particular purpose. No statements or advice, verbal or written
(including electronic) information, provided by
DesignerFloral.com™, its agents, employees, managers,
representatives, Affiliates or licensees will create a warranty or
guarantee of any kind (express or implied), and you should not
rely on any such advice or information.
Under no circumstances (including negligence) will
DesignerFloral.com™, or anyone else involved in the
administration, service or maintenance of the web-site of
DesignerFloral.com™, and the services and products appearing on
the web-site, be liable for any direct, indirect, incidental,
special or consequential damages or losses from or related to the
use of or inability to use the web-site or resulting from
mistakes, omissions, interruptions, deletion of files or e-mail,
defects, viruses, delays in operation or transmission or any
failure of performance, even if advised of the possibility
thereof. Your sole and exclusive remedy (and the sole
responsibility of DesignerFloral.com™) shall be to suspend or
terminate your use of the web-site or the Internet and the maximum
liability exposure of DesignerFloral.com™, in any event, shall be
limited to the refund of the unearned prorata portion of any fees
for services paid in advance, or the purchase price actually paid
for any product purchased from DesignerFloral.com™. XII. Responsibilities – Arbitration of Disputes – Waivers
You understand, acknowledge and agree: [1] that
DesignerFloral.com™ cannot and does not control or have any
responsibility for the conduct, actions or representations of its
Affiliates or other persons; [2] that you are solely responsible
for protecting yourself from harmful or inaccurate information and
enforcing your rights against Affiliates and other persons; and
[3] that the Affiliates and other users of the web-sites are
intended third party beneficiaries of this Agreement who may
enforce their rights under this Agreement against you.
In the event any dispute arises concerning this Agreement, you
acknowledge and agree that the following rules shall apply:
(1) You must begin any legal proceedings within one year after
your claim arises.
(2) All disputes, controversies or claims, whether based in
contract, tort, statutory fraud, misrepresentation or any other
legal theory, arising out of or related in any way to this
Agreement and/or any product or services provided by and/or the
web-site of DesignerFloral.com™, (i.e., the 'Disputes') shall be
settled by final and binding arbitration, by a neutral arbitrator,
in accordance with this Agreement and the then current commercial
arbitration rules of the American Arbitration Association. The
arbitrability of Disputes shall also be determined by the
arbitrator. Each party shall bear its own expenses, except that
the prevailing party may recover the filing costs and the expenses
of the arbitrator from the other party, but only in proportion to
the extent that the prevailing party has obtained an award in
excess of the amount of any prior payment or written offer of
settlement or compromise received at any time from an opposing
party . Any award of the arbitrator shall be in writing and shall
state the reasons supporting the award. Judgment upon an award may
be entered in any court having competent jurisdiction. The
arbitrator shall not have the power to award any damages in excess
of the applicable dollar limits specified in this Agreement. The
arbitrator shall not have the power to order pre-hearing discovery
of documents or the taking of depositions, but may compel the
attendance of witnesses and the production of documents at the
hearing. The parties agree that the terms and provisions of the US
Federal Arbitration Act, 9 USC Chapter 1, Sections 1-14, shall
govern the interpretation and enforcement of this paragraph, and
that any party may apply to any court with jurisdiction over the
adverse party or parties to compel such arbitration and/or appoint
an arbitrator in the absence of agreement on an arbitrator between
the parties. The parties, their representatives, the arbitrator
and other participants shall hold the existence, content, and
result of the arbitration in confidence, except to the limited
extent necessary to enforce a final settlement agreement or to
obtain or enforce a judgment on an arbitration decision and award.
Disputes arising from or relating to your failure to pay in a
timely manner the applicable fees and charges of
DesignerFloral.com™, are exempt from the binding arbitration
requirement. The foregoing notwithstanding, this Agreement shall
not prevent DesignerFloral.com™, from seeking and obtaining
temporary equitable remedies, including temporary restraining
orders, from a court with jurisdiction over the parties and
subject matter. A request to a court for interim equitable relief
shall not be deemed a waiver of the obligation to arbitrate.
(3) You acknowledge, understand and agree that
DesignerFloral.com™, would be irreparably harmed by the use of
the web-site and services of DesignerFloral.com™, in connection
with the transmission of SPAM or unsolicited commercial e-mail in
violation of this Agreement, and that DesignerFloral.com™, shall
be entitled to obtain injunctive relief against such transmission,
without waiver of the Agreement to arbitrate Disputes. Such remedy
shall not be deemed an exclusive remedy, but shall be in addition
to all other remedies available at law or in equity or otherwise
specified in this Agreement.
(4) You understand and agree that the words of this Agreement, and
not the conduct between us or any trade practice, shall control
the meaning of this Agreement; that our decision not to enforce a
particular provision of this Agreement in a particular instance or
on one or more occasions does not mean that we waive the right to
enforce it in the future; that a waiver cannot be implied, but can
only be evidenced by a written 'waiver' which is specific as to
the person and conduct encompassed within the waiver; and that any
such written waiver must be limited to its terms and strictly
construed. XIII. Trademarks, Copyrights and Service Marks You understand and acknowledge that all aspects of the services
and web-sites (including all trademarks, service marks and logos)
available for use by Affiliates of DesignerFloral.com™, pursuant
to this Agreement are copyrighted as a collective work under US
Copyright Laws and are owned by DesignerFloral.com, LLC (a Nevada
Limited Liability Company). DesignerFloral.com™, also has a
non-exclusive, royalty-free, world-wide, perpetual license, with
the right to sub-license and to use in any and every way, the
ideas and materials that you may submit at any time to
DesignerFloral.com™. DesignerFloral.com™, acknowledges that
trademarks, service marks, logos and other intellectual property
of third parties are displayed on the web-sites with the consent
of such third parties, and that all such intellectual property is
owned by and remains the sole property of their respective owners.
XIV. Miscellaneous
Assignments - We may assign our rights under this Agreement to
others at any time without notifying you, but you may not assign
your rights and duties under this Agreement to others.
Severability - If any provision of this Agreement is held to be
unenforceable for any reason, that provision will be reformed only
to the extent necessary to effect the original intentions of the
parties, and the remainder of this Agreement shall remain in full
force and effect.
Survival - The provisions concerning payment of fees and charges,
the duty to arbitrate Disputes, and the rights of
DesignerFloral.com™, and third parties shall survive termination
of this Agreement.
Independent Contractor Relationship - Nothing contained herein
shall be deemed to create an agency, partnership, or other form of
joint or common enterprise between you and us, and in every
respect you and we are and shall remain as independent
contractors.
Entire Agreement - The parties agree that this Agreement, together
with the documents incorporated by reference into this Agreement,
set forth, express and contain the entire agreement and
understanding between the parties related to the subject matter
hereof, and replaces, merges and supersedes all prior agreements,
commitments, discussions and understandings between the parties.
Independent Evaluation - You acknowledge and agree that you have
thoroughly read and understood the terms and provisions of this
Agreement, that you have made an independent evaluation of,
weighed the risks and benefits, and arrived at an independent
decision and election to utilize the web-site, products and
services of DesignerFloral.com™, and that you have agreed to all
terms and provisions of this Agreement (together with the
documents incorporated by reference into this Agreement) without
reliance on any representation, guarantee or statement existing
outside of this Agreement, and that you acknowledge your
acceptance of this Agreement (together with all documents
incorporated by reference into this Agreement) by your use of the
web-site, by your application, order or request for a product or
service to be provided to you by DesignerFloral.com™.
Headings and Fair Meaning - The parties understand that the
'Headings' are included for convenience in locating various parts
and provisions and do not constitute a substantive part of this
agreement. The parties further agree that this Agreement will be
construed so as to arrive at its fair and intended meaning,
without inference in favor of any party, and without inference
against the drafting party. XV. Notices and Legal Conditions Precedent
No suit or action may be instituted prior to legal Notice thereof
to DesignerFloral.com™, and to the Affiliate involved (if any) in
accordance with this provision.
Notice to a company, to a Responsible Person or to an Affiliate
shall be directed to the postal address last provided to
DesignerFloral.com™, and shall be deemed delivered if properly
addressed and mailed by US certified mail with return receipt
requested, US registered mail, Federal Express, DHL, United Parcel
Service, personal delivery, or other similar delivery methods, so
long as a receipt or certificate proving delivery or attempted
delivery is returned to the sender.
Notice to DesignerFloral.com™ shall be delivered to
DesignerFloral.com, LLC, at 8550 West Desert Inn Road #102-184,
Las Vegas, Nevada 89117, with a copy to the Attention of Corporate
Counsel, at 1285 Baring Blvd. #205, Sparks, NV 89434
Update Summary:
First published: January 31st 2006
No further revisions.
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