Please read this Agreement carefully and be sure you fully understand the terms and conditions contained herein. This Agreement constitutes a binding legal agreement between you and FlowerShop Inc.
Your use of the Platform constitutes your agreement to all such terms, conditions, and notices in effect at such time. You hereby represent and warrant that (i) you are lawfully able to enter into and perform a legally binding contract, (ii) if you are entering this Agreement on behalf of your employer and you are authorized to do so, and (iii) agree to be bound by this Agreement. Please print a copy of this Agreement and retain it for your records.
FlowerShop offers a native and video advertising internet-accessible platform (the “Platform“) that allows Company to buy, track and manage digital media (“Media“) for the purposes of delivering Company’s native and video advertisements (“Ads“). Based on Company’s specified attributes, the Platform utilizes FlowerShop proprietary technology to bid on Media on Company’s behalf, and offers manual and automated methods for meeting Company’s advertising objectives. All Ads are subject to FlowerShop review and approval. FlowerShop, may, in its sole discretion, decide not to deliver an Ad that it deems to be of poor technical quality, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable.
Right to Access and Use the Platform
2.1 Right to Use
Subject to the terms and conditions of this Agreement, including the payment of the applicable fees, commencing as of the Effective Date and for the duration of the Term (as defined below), FlowerShop hereby grants to Company a non-exclusive, non‐transferable, revocable right to access and utilize the Platform in accordance with the terms of this Agreement.
2.2 Restrictions on Use
Any rights not granted herein are strictly reserved by FlowerShop. Company shall not, and shall not permit any third party to: (a) re-license or sublicense, lease, loan or otherwise distribute the Platform to any third person; (b) use the Platform in the operation of a service bureau; (d) reverse engineer, decompile, disassemble or translate any software used by FlowerShop to deliver the Platform (the “Software“), or otherwise attempt to view, display or print the Software’s source code; (e) remove, modify or obscure any copyright, trade-mark or other proprietary notices contained in the Software.
2.3 Reservation of Rights
FlowerShop shall retain ownership of all intellectual property rights associated with the Platform, all ancillary documentation and technology associated therewith, and any enhancements or modifications thereof. Neither party shall use the trademarks or trade names of the other without express consent.
2.4 Audit Rights
FlowerShop reserves the right to monitor and audit Company and its authorized users’ usage of the Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by FlowerShop or a third party authorized by FlowerShop, at FlowerShop’s expense.
In order to use the Platform, Company must log into an account (an “Account“) created for the Company by FlowerShop using the account login credentials provided by FlowerShop. Company will be allowed to create one or more administrator accounts (each an “Admin Account“) for one or more designated administrators (each an “Administrator“) to access the Platform. After the initial log in, an Administrator may assign additional user access to other Company employees, contractors or agents. FlowerShop is not responsible for dissemination of additional user access, as all requests for additional user access must be routed to a designated Administrator.
2.6 Security Requirements
FlowerShop shall implement and maintain the appropriate safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the Platform and Company’s Ads. Company acknowledges and agrees that notwithstanding the security requirements, such methods and procedures may not prevent unauthorized electronic intruders to access the Platform through the Internet or through other form of electronic communication. Except for the maintenance of appropriate firewall and safeguards in compliance with the security requirements, which are designed to frustrate access from unauthorized electronic intruders, FlowerShop shall not be liable to Company, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
From time to time, it will be necessary for FlowerShop to perform maintenance on its system. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of FlowerShop system or upgrading, updating or enhancing its system. FlowerShop shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of its system to Company. To the extent FlowerShop is able, FlowerShop shall notify Company in advance of any scheduled maintenance by posting a message on its website or by sending an email to the designated Company representative of the scheduled maintenance time and the anticipated duration of such maintenance.
Company’s Rights and Obligations
3.1 Company’s Responsibilities
In addition to its other obligations contained in this Agreement, Company shall: (a) be responsible for operating, supporting and maintaining Company’s systems, including computer hardware and software, necessary for Company to access the Platform; (b) be responsible for procuring and maintaining communication Platforms, including high speed Internet connections between Company’s systems and FlowerShop system; (c) assign, record and control the issuance and use of all authorized users; (d) use the Platform, by itself and authorized users in accordance with the terms of this Agreement; and (e) comply, at all times, with all applicable legal and regulatory requirements and with FlowerShop conduct and security policies in respect of the use of the Platform.
3.2 Company’s Negative Covenants
Company shall not: (a) use the Platform for improper or unlawful purposes; (b) take any action that imposes an unreasonable or disproportionately large load on FlowerShop’s system; (c) use the Platform or the software to develop any derivative works or any functionally compatible or competitive software; or (d) copy or download any software used by FlowerShop to provide the Platform and which is contained within FlowerShop’s system. In the case of data which may be provided by or provisioned through FlowerShop, Company shall not: (i) resell, rent, lease, sublicense, or transfer such data to any third party; (ii) use such data in any manner except for marketing purposes and the delivery of online advertisements; or (iii) merge or combine such data with personally identifiable information.
3.3 Representations and Warranties of Company
In addition, Company represents, warrants and covenants that: (a) Ads delivered or served through the Platform will not include any materials or links to materials that are unlawful, harmful, spam, defamatory, libelous, abusive, threatening, pornographic or otherwise objectionable, or infringes or misappropriates the patents, copyrights, trademarks, trade secrets or other intellectual property rights of any person; and (b) none of the Ads will contain any viruses, Trojan horses, worms or other disabling devices or harmful components intended to damage, detrimentally interfere with, intercept, or expropriate any system.
3.4 Ownership of and License to Use Ads
Company shall retain ownership of all intellectual property rights to the Ads and any ancillary advertising materials provided to FlowerShop. Company hereby grants to FlowerShop the right and license to promote and market its Ads through the Platform. Company hereby authorizes and grants to FlowerShop a license to use Company’s Ads and any of Company’s trade-marks, trade names, Platform marks, logos, character names, and other intellectual property provided by Company in connection with Company’s use of the Platform.
Fees; Invoicing and Payment
Company shall pay FlowerShop the cost of all Media purchased by the Company through the Platform (the “Fees“). The Fees do not include applicable taxes. Fees are in the currency specified by the Company in the Company’s Account.
If Company and FlowerShop have executed a Prompt Payment Agreement (a “PPA“) pursuant to which Company has been approved by FlowerShop for a credit limit and monthly billing, FlowerShop shall send Company monthly invoices detailing Company’s advertising campaign activities and amounts due for the previous month’s advertising campaigns. FlowerShop analytics system shall be the sole basis of measurement for the purpose of determining the Fees. If Company has not entered into a PPA, FlowerShop will not provide a monthly invoice unless requested by Company.
Unless the Company has entered into a PPA, Company shall pay the Fees either (a) with the credit card associated with Company’s FlowerShop account and the Fees will be charged to Company’s credit card at pre-determined amounts mutually agreed upon by FlowerShop and Company; or (b) by making a pre-payment of Fees which FlowerShop may apply to Company’s Media purchases, which pre-payment shall be promptly refunded by FlowerShop upon the request of the Company after payment of any outstanding Fees.
For purposes of calculating foreign currency rates for non‐Canadian dollar currencies, FlowerShop utilizes a risk‐adjusted daily exchange rate. Rates are provided via a daily feed from a reputable exchange rate Platform.
Company shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and Platforms, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on FlowerShop’s net income.
The fees agreed between the parties in section 4.1 and listed in Exhibit A of this agreement do not include any tax, fees of duties including goods and service tax, any type of sales and use tax or value added tax, personal property, gross receipt, franchise, excise taxes, assessment or duties, or any similar type of tax, or any interest or penalty related thereto (collectively “taxes“) which are or may be imposed by law on FlowerShop, Company or their affiliate, irrespective of whether FlowerShop needs to collect said taxes or Company is required to account for said taxes and remit them, by any taxing authority or jurisdiction occasioned by, relating to or as a result of the execution of this Agreement or any other matter, good or service provided for under or in connection with this Agreement.
4.6 Interest on Late Payments
Where Company fails to pay any amount in accordance with this Agreement, FlowerShop shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of one percent (1%) per month calculated daily, compounded monthly (12.68% per annum), both before and after any court judgement in respect of the same from the date such payment was due.
Privacy and Data
5.2 Company’s Responsibilities
Company shall comply with applicable Data Protection Laws. Company is solely responsible for any data submitted or transferred by Company to FlowerShop and any data collected by FlowerShop from or for Company pursuant to or in connection with this Agreement, including personal information (“Company Data“).
Company warrants that it will not transfer to FlowerShop any Company Data that has not been lawfully processed in accordance with applicable Data Protection Laws. For greater certainty, Company warrants that it will obtain opt-in consent from data subjects, where such consent is required by Data Protection Laws, to use any FlowerShop trackers, including, but not limited to, conversion pixels, retargeting pixels, or look-alike pixels.
Company shall also identify any Company Data originating in the European Union, the European Economic Area, Switzerland or the United Kingdom (“EU Company Data“) to FlowerShop. Company acknowledges that failure to properly identify EU Company Data shall result in FlowerShop rejecting any bid request and receipt of the EU Company Data.
Company understands and acknowledges that FlowerShop is relying on Company fulfilling its obligations under Data Protection Laws in order for FlowerShop to fulfill its obligations under this Agreement. Company shall notify FlowerShop if Company determines, or suspects, an issue or violation with its obligations outlined in this section.
COMPANY ACKNOWELDGES AND AGREES THAT COMPANY SHALL FULLY INDEMNIFY, DEFEND AND HOLD HARMLESS FLOWERSHOP AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES, ARISING OUT OF OR ASSOCIATED WITH COMPANY’S VIOLATION OF ANY OF COMPANY’S RESPONSIBILITIES AND OBLIGATIONS OUTLINED IN THIS SECTION.
5.3 Processing and Sub-processing
In respect of Company Data, FlowerShop and Company acknowledge that Company is a data controller and FlowerShop is a data processor.
FlowerShop shall be entitled to use sub-processors to process Company Data on behalf of FlowerShop.
5.4 Data Subject Rights
FlowerShop will use commercially reasonable efforts to assist Company fulfill Company’s obligations to respond to requests from data subjects to exercise the data subject’s rights under Data Protection Laws in Company Data concerning the data subject, to the extent that such assistance is legally permitted and technically possible in the circumstances.
5.5 Security Measures
FlowerShop will implement and maintain appropriate technical, administrative and organizational measures to prevent unauthorized and unlawful processing of Company Data appropriate to the nature and sensitivity of the Company Data.
5.6 Aggregated Data
Company grants FlowerShop a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated and anonymized Company Data (“Aggregated Data“) and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for FlowerShop’s own business purposes. FlowerShop shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third party.
5.7 Derivative Data
Company understands that the Platform collects aggregated and non-personally identifiable data relating to users use of the Platform, including, but not limited to, non‐personally identifiable information provided by users in response to an Ad (“Derivative Data“). Derivative Data, including all modifications thereto, is and shall be the sole and exclusive property of FlowerShop, and FlowerShop shall have the right to use Derivative Data to improve the Platform; develop new products, Platforms and features; understand usage; and and generally for any purpose related to FlowerShop’s business without further obligation to Company. FlowerShop may transfer or assign any of its rights in the Derivative Data to any third party.
For purposes of this Agreement, “Confidential Information” means any information related to or contained within the Platform, non‐public information, know‐how and trade secrets, whether provided in written or oral form, that is designated as being confidential, or that a reasonable person knows or reasonably should understand to be confidential; provided, however, that the following shall not be considered Confidential Information: information that is, or becomes, publicly available without a breach of this Agreement, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, is independently developed, or is a comment or suggestion one party volunteers about the other’s business, products or Platforms. The parties agree to use the Confidential Information solely for the purpose of performing their obligations hereunder. Both parties will refrain from disclosing any Confidential Information to any third party, except to the extent that: (a) such disclosure is necessary to perform its obligations or exercise its rights under this Agreement; (b) such disclosure is required by applicable law, provided that the party required to make such disclosure must use reasonable efforts to give the other party advance notice thereof so as to afford that party an opportunity to seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure and the Confidential Information is only disclosed to the extent required by law; (c) such disclosure is made with the consent of the disclosing party; (d) such disclosure is to employees, consultants or agents of the disclosing party who have a need to know such confidential information in order to assist the disclosing party in carrying out its obligations hereunder; or (e) such disclosure is (i) to legal counsel of the Parties; or (ii) in confidence, to accountants, banks, proposed investors, acquirers and financing sources and their advisors.
THE PLATFORM IS PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND FLOWERSHOP EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES WILL FLOWERSHOP BE LIABLE FOR THE RESULTS OF COMPANY’S USE OR MISUSE OF THE PLATFORM, INCLUDING ANY USE CONTRARY TO LAW.
Company agrees to indemnify, defend and hold harmless FlowerShop and its officers, directors, employees and agents from and against any third party claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in connection with: (a) Company’s use of the Platform; (b) Company’s violation of any terms or conditions of this Agreement; or (c) any claim that Company’s Ads violate applicable laws or regulations, or any rights of another person or entity, including without limitation, any intellectual property rights.
Limitations on Liability
OTHER THAN WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 5.2 AND 8 OR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY, THEIR AFFILIATES OR THEIR RESPECTIVE AGENTS BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OF ANY NATURE, FOR ANY REASON, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND WHETHER OR NOT EITHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL FLOWERSHOP AGGREGATE LIABILITY TO COMPANY AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR COMPANY’S ACCESS TO AND USE OF THE PLATFORM EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO FLOWERSHOP IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM OR ACTION.
Term and Termination
This Agreement shall commence on the Effective Date, and will remain in full force and effect until and unless terminated as set forth herein (“Term“).
Either party may terminate this Agreement: (a) immediately upon notice if the other party materially breaches any of its obligations hereunder and fails to cure such breach within seven (7) days following written notice; or (b) immediately upon notice in the event of the suspension of business, insolvency, institution of bankruptcy or liquidation proceedings by or against the other party. Company or FlowerShop may terminate this Agreement at any time by giving written notice of termination to the other party. Following any termination for convenience pursuant to this section 10.2, both parties shall FlowerShop in good faith to honour any existing campaigns, open orders, outstanding invoices known to exist on the date of notice of termination and Customer shall promptly pay any outstanding Fees.
Notwithstanding the foregoing, FlowerShop may suspend or terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Company: (a) fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of five (5) business days after delivery of a written notice by FlowerShop requiring Company to correct such failure; (b) infringes the intellectual property rights of FlowerShop; or (c) if FlowerShop has reason to believe that Company is using the Platform for any improper or unlawful purpose.
10.4 Effect of Termination
Upon termination of the Agreement: (a) all rights of Company under the Agreement will terminate; and (b) FlowerShop’s obligations relating to the Platform will terminate.
All notices and other information to be given by one of the parties to the other shall be given by hand delivery or e‐mail to the other party at the email address or address set forth below on the signature page. Notices sent by e‐mail shall be deemed to have been received by the party to whom it was addressed on the date of transmission or receipt, or if sent on a day that is not a business day or after normal business hours, on the first business day following transmission or receipt. Notices sent by hand delivery shall be deemed to have been received on the date of delivery. Any notice of change of address by a party shall be effective only upon receipt of a notice provided to the other party in accordance with the provisions of this Section 11.1.
11.2 Marketing and Publicity
Without FlowerShop prior written consent, Company shall not release any information regarding any Ads or Company’s relationship with FlowerShop or its customers, including, without limitation, in press releases or promotional or merchandising materials. FlowerShop shall have the right to refer to its work for and relationship with Company for marketing and promotional purposes. No stand‐alone press releases or general public announcements shall be made without the mutual consent of FlowerShop and Company.
11.3 Entire Agreement
This Agreement, together with the Exhibits and any other documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the parties.
The parties may modify this Agreement only upon written agreement.
11.5 Further Assurances
Each party shall take such action (including, but not limited to, the execution, acknowledgement and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.
The parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either party as an agent, representative or employee of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other party. Neither party will have the authority or right to represent nor obligate the other party in any way except as expressly authorized by this Agreement.
11.7 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario. The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario.
The waiver by either party of a breach or default of any provision of this Agreement by the other party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege by such party shall constitute a waiver.
Company may not assign the Agreement, in whole or in part, by operation of law or otherwise without FlowerShop’s prior written consent, and any such purported assignment shall be void.
Company acknowledges that its breach of any confidentiality or proprietary rights provision of the Agreement may cause FlowerShop irreparable damage, which monetary damages would be inadequate to remedy. Consequently, FlowerShop may seek injunctive or other equitable relief to enforce this Agreement and prevent any and all acts in violation of those provisions. The exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.
Sections 6, 8, 9 and 11 shall survive the expiration or termination of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. To evidence its execution of an original counterpart of this Agreement, a party may send a copy of its original signature on the execution page hereof to the other party by facsimile transmission or email and such transmission shall constitute delivery of an executed copy of this Agreement to the receiving party as of the date of receipt thereof by the receiving party or such other date as may be specified by the sending party as part of such transmission.
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