Affinity Agreement
This Agreement contains the complete terms and conditions that apply to participation as an affinity member in the eorchidshop.com network.1. Our Responsibilities: We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. We will be solely responsible for processing every order placed by a customer using the special Link, for tracking the volume and amount of sales generated by your participant, and for providing information to Affinity Participants regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellations, returns, and related customer service.
2. Affinity Members Responsibilities:
a. You agree to be an Affinity participant and shall display eorchidshop.com Logo Links prominently throughout their web site.
b. As an Affinity participant, You will be entitled to receive special discount pricing as set forth in section 3 and 4 below.
3. Commission Determination: The purchase price of flowers will count toward the total sales during the calendar month in which such flowers are sold. Flowers and gifts that are sold by us 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 participant:
All available flowers on our participant will be included in the computation of Net Sales, regardless of whether the flower is a next day delivery, international, or weekend delivery item. a. Commission rates will be 5 percent (5 %) or 10 percent (10) of the aggregate amount actually paid to us by users participants who purchase flowers utilizing the Links between affinity members and the eorchidshop.com, excluding amounts collected by us for sales taxes, duties, gift-wrapping, shipping, handling, and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods ("Net Sales").
b. The commission rate will be 5 percent (5%) for any sales up to $2,500 during any term year.
c. The commission rate will be 10 percent (10 %) for any sales of $2,500 and more during any term year.
4. Commission Payment:
a. Based on Net Sales received by us in connection with sales of flowers purchased by affinity members, we will send a commission fee check for the applicable commission fee (less any taxes required to be withheld under applicable law) and a statement of activity to you approximately thirty (30) days after the end of each three-month anniversary of the date of acceptance of your application.
b. The commission will be paid monthly, the first period starting on the date the affinity acceptance agreement. If the Affinity's commission for any month is less than $20, the total amount will be carried to the next month. Once commission passes $20, a check will be sent to at the end of the month for the complete amount owed.
5. Reports of Sales: You will assign yourself a password and have the ability to enter a password protected participant to receive your sales statistics on a daily basis.
6. Policies and Pricing: Customers who buy flowers through the Affinity Network will be deemed to be customers of eorchidshop.com, Inc. 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 flowers sold under the Affinity Network in accordance with our own pricing policies.
7. 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, which we agree shall not be unreasonably withheld.
8. Licenses and Use of the eorchidshop.com Logos and Trademarks:
a. The affinity member and eorchidshop.com grant to each other a non-exclusive license to utilize names, titles, and logos as set forth in section 2. The same may be amended from time to time (the "Affinity Trademarks"). This license shall terminate upon the effective date of the expiration or termination of this Agreement.
9. Disclaimers: We make no express or implied warranties or representations as a part of this agreement for any flowers sold (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 participant will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors.
10. Obligations Regarding Your Participant:
11. Term of the Agreement: The term of this Agreement will begin upon our acceptance of your Affinity Network 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 flower orders are not cancelled. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
12. 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. 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.
13. 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 sites 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 Affinity group members.
14. Limitation of Liability: We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement. Further, our aggregate liability arising with respect to this Agreement will not exceed the total commission fees paid or payable to you under this Agreement.
15. Indemnification: You hereby agree to indemnify and hold harmless eorchidshop.com, 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 _____ logo 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 participant, including, without limitation, content therein not attributable to us.
16. 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 AFFINITY NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Governing Law: This Agreement will be governed by the laws of the United States and the state of Michigan, 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 Ingham, 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.