Plants by Mail
Program Terms
PLANTS BY MAIL™
AFFILIATE PROGRAM TERMS AND CONDITIONS
1. OVERVIEW
These Plants By Mail™ Affiliate Program Terms and Conditions (the “Terms”) contain legally binding terms and conditions that govern your participation in the Plants By Mail™ Affiliate Program, operated by ShareASale (the “Affiliate Program”). PLEASE REVIEW THESE TERMS CAREFULLY!
By applying to become a Plants By Mail™ affiliate (an “Affiliate”), you: (a) represent and warrant that you are over nineteen years of age; (b) represent and warrant that if you are applying to participate in the Affiliate Program on behalf of a company or other entity, you are an authorized representative and agent of such company or entity with the power and authority to bind such company or entity to these Terms; (c) acknowledge and agree that these Terms constitute a legally binding agreement (the “Agreement”) between Plants By Mail™ and you if you are accepted as a participant in the Affiliate Program; and (d) agree to abide by these Terms if you are accepted as a participant in the Affiliate Program. We reserve the right to modify or otherwise amend these Terms from time to time and at any time, and to terminate the Affiliate Program at any time, without prior notice to you. These Terms only govern the relationship between Plants By Mail™ and you in connection with your participation in the Affiliate Program. For all terms and conditions that govern your relationship with ShareASale in connection with your participation in the Affiliate Program, please refer to the agreement between you and ShareASale.
2. DEFINITIONS
In addition to the words and terms that are defined in the other sections of these Terms, the following words and terms have the following meanings:
(a) “Affiliate” means the applicant who has been accepted as a participant in the Affiliate Program.
(b) “Affiliate Program” means the Plants By Mail™ Affiliate Program operated by ShareASale.
(c) “Agreement” means these Terms which constitute a legally binding Agreement between Plants By Mail ™ and you.
(d) “commissions” means any fees that you earn in connection with your participation in the Affiliate Program.
(e) “Customer” means any visitor to your website or other individual to whom you promote the Products in connection with your participation in the Affiliate Program.
(f) “Laws” means all federal, state, and local laws, statutes, regulations, rules, ordinances, codes, decisions of courts, judgments, orders, decrees, guidelines, directives, licensing requirements, permits, permit conditions, and governmental restrictions and requirements, and all administrative and judicial rulings thereon and interpretations thereof.
(g) “Links” means links and banner ads to our website available to you through the ShareASale Interface for loading on to your website, and which consist of graphic images and/or text.
(h) “Marks” means (a) our and our affiliates’ owned or licensed registered and common law trademarks, trade names, logos, and similar identifying material, including, without limitation, the following: Plants By Mail™, PlantsbyMail.com®, Flowerwood®, Southern Living® Plant Collection, Encore® Azalea, Sunset® Plant Collection, Sunset WesternGarden Collection®, BetterBoxwood®, and Butterfly Candy™; and (b) registered and common law trademarks, trade names, logos, and similar identifying material owned or licensed by third parties whose Products are sold on our website.
(i) “our website” means the Plants By Mail™ website located at www.PlantsByMail.com or any other website that is owned or operated by or on behalf of Plants By Mail™.
(j) “Plants By Mail™”, “we”, “us”, and “our” refers to Flowerwood Direct, LLC, an Alabama limited liability company, d/b/a Plants By Mail™, located at 15315 Kelly Road, Loxley, Alabama 36551, together with our website and domain name, PlantsByMail.com®.
(k) “Products” means plants and other products and services sold and distributed by Plants By Mail™ on our website.
(l) “Qualifying Purchases” means purchases made when a Customer (i) clicks through the Links on your website to our website; (ii) following such click-through, adds a commission-eligible Product (identified by us on the ShareASale Interface) to the Customer’s shopping cart and places the order for that Product no later than thirty (30) days following the click-through; and (iii) pays us for that Product.
(m) “ShareASale” means ShareASale.com, Inc. located at 15 W. Hubbard Street, Suite 500, Chicago Illinois 60654, being the company that provides an affiliate marketing network service at www.shareasale.com, and operates the Affiliate Program for Plants By Mail™.
(n) “ShareASale Interface” means your Affiliate Program homepage on the intranet and software platform operated by ShareASale and the functions accessed by or made available to you through such platform, including, without limitation, the Links made available by us, commission payment information, and other Affiliate Program materials.
(o) “Terms” means these Plants By Mail™ Affiliate Program Terms and Conditions.
(p) “you” or “your” means the Affiliate.
(q) “your website” means, whether one or more, any websites, web pages, or other online services that you own, control, or operate and link to our website via the Links to promote the Products.
3. PURPOSE
The purpose of the Affiliate Program is to permit you to advertise and promote our Products on your website to Customers and, in exchange, to earn commissions for Qualifying Purchases.
4. ENROLLMENT
In order to apply to participate in the Affiliate Program, you must first establish an account with ShareASale. After creating your ShareASale account, you may apply to participate in the Affiliate Program by submitting an application to Plants By Mail™ via ShareASale’s website. Your application must include all information requested by Plants By Mail™ and ShareASale, including information about your website, links to any website that you intend to use in connection with the Affiliate Program, your website’s visitor demographics, your contact information and your website’s traffic statistics. After receiving your application, we will review your application materials and your website and notify you by email of your acceptance into or rejection from the Affiliate Program, usually within three (3) business days. We reserve the right to reject your application for any reason. If you have questions regarding your application, please contact us.
5. LINKING TO OUR WEBSITE
After we have accepted you into the Affiliate Program, we will make Links available to you through the ShareASale Interface. The Links will serve to identify you and your website as a participant in the Affiliate Program and will establish a link from your website to our website. By utilizing these Links, Customers will be able to order the Products described or referenced on your website directly from us.
Links are customized for use in the Affiliate Program and permit the tracking, reporting and accrual of all commissions that you may earn by participating in the Affiliate Program. We may modify the Links from time to time and at any time without prior notice to you. By participating in the Affiliate Program and displaying the Links on your website, you consent to us and ShareASale monitoring, using, and disclosing information about your website and Customers. When linking to our website, you agree that you will:
(a) Only use and display the Links on your website in their entirety and exactly and in the most current form as provided to you through the ShareASale Interface, and not manipulate or change the Links in any manner;
(b) List all domains of your websites that currently contain our Links in your Affiliate Program profile on the ShareASale Interface;
(c) Not copy, resemble, or mirror the look and feel of our website on your website, nor in any way create the impression that your website is our website or any part thereof, including, without limitation, framing our website on your website in any manner;
(d) Not engage in cookie stuffing and or include pop-ups, false, or misleading links on your website, nor attempt to mask the referring URL information for any Link (i.e. the page from which the Link click is originating);
(e) Not redirect any Link in a manner that hides or manipulates its source or gives the appearance that a Customer’s click on a Link came from another domain
(f) Not promote, post, or link to information about methods to manipulate or work around the requirements of a Link promotion;
(g) Not advertise Links obtained from any means other than the ShareASale Interface, including via our non-referral advertising, customer e-mails, paid searches or any other campaign; and
(h) Not mislead customers or give the appearance that any offer on our website requires a click from your website in order to redeem such offer. For example, if we are running a promotion on our website for free shipping on Product purchases over $100, you may not suggest or imply that a Customer must click a Link from your website to receive this deal.
If you fail to properly implement the Links on your website, you will not be entitled to receive any commissions.
6. EARNING COMMISSIONS
Commissions will be paid to you on Qualifying Purchases. We reserve the right to reject any orders for Products that do not comply with the requirements that appear on our website. Customers who make Qualifying Purchases are our customers with respect to all Products that they purchase.
Commissions payable to you in connection with your participation in the Affiliate Program will be calculated as provided on the ShareASale Interface. The ShareASale Interface will identify the commission-eligible Products and the percentage commission payable for each such Product. Commission-eligible Products and commission percentages are subject to change from time to time and at any time, without prior notice to you. You are encouraged to regularly review the ShareASale Interface for the most current commission-eligible Products and commission percentages.
We may, from time to time, offer to you additional ways to earn commissions through your participation in the Affiliate Program (e.g., via bonus incentives or similar programs), the terms and conditions of which will be made available to you via the ShareASale Interface.
7. PAYMENT TERMS & SHAREASALE
The calculation and payment of all commissions that you earn by participating in the Affiliate Program are performed by and processed through ShareASale. Please refer to your agreement with ShareASale for all terms and conditions relating to the calculation and payment of your commissions. Commissions will be paid to you solely through ShareASale. Plants By Mail™ is not responsible for paying and has no obligation to pay any commissions or compensation directly to you. If you have a question or dispute regarding the calculation or payment of your commissions, you must contact ShareASale to answer such question or resolve such dispute. Plants By Mail™ is not responsible for and disclaims all liability to you for miscalculations, errors, or mistakes in ShareASale’s payment of commissions to you.
Commissions paid by ShareASale to you are the only compensation that is payable to you for participating in the Affiliate Program. No other compensation of any kind is payable to you under this Agreement. You are solely responsible for (a) all costs and expenses incurred by you in participating in the Affiliate Program and performing your obligations under this Agreement ; and (b) all taxes, fees, and other charges that may be imposed on you in connection with your participation in the Affiliate Program.
8. YOUR WEBSITE REQUIREMENTS
You are solely responsible for your website, including all materials and content that appear on your website, and the development, operation, and maintenance of your website.
You may display the Links as often and in as many areas on your website as you desire, however, we have the right at any time while you are an Affiliate to review and approve your website and the placement, appearance, and use of the Links on your website. We have the right, as a condition of your participation in the Affiliate Program, to require you to change or modify portions of your website and/or the placement, appearance, or use of the Links on your website in such manner as we direct, and to terminate your participation in the Affiliate Program if you do not make such changes or modifications.
At all times during your participation in the Affiliate Program, you agree that your website shall not do any of the following:
(a) Infringe on our or anyone else’s intellectual property, publicity, privacy, proprietary rights, or other rights;
(b) Violate or be used to violate any Laws;
(c) Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contain nudity, pornography, or sexually explicit materials;
(d) Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to or may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
(e) Be directed toward children under 13 years of age, or otherwise violate or fail to comply with the Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501-6506, and the regulations thereunder;
(f) Contain software or use technology that attempts to intercept, divert, or redirect internet traffic to or from any other website, or that potentially enables the diversion of commissions from another affiliate’s website;
(g) Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to our website, user accounts, or the technology and equipment supporting our website;
(h) Violate any of our policies; or
(i) Use any of the Marks or any variations or misspellings of the Marks as part of the domain or sub-domain for your website (e.g., plantsbymail.website.com or www.plantsbymail-coupons.com, etc.)
Your website must accurately and adequately disclose, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from Customers, including a disclosure, where applicable or appropriate, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from Customers, and place or recognize cookies on visitors’ browsers.
9. LICENSE
We grant to you a limited, non-exclusive, non-transferrable, revocable right (a) to access our website through the Links solely in accordance with the Terms; and (b) solely in connection with the Links, to use only those Marks that we provide to you or authorize for such purpose via the ShareASale Interface or otherwise, in each case solely for the limited purpose of promoting the Products to Customers in connection with your participation in the Affiliate Program. You may use the Marks only as directed by us and in exactly the form that we provide them to you. You may only use the Marks while you are a participant in the Affiliate Program. The license granted to you in this paragraph will immediately terminate upon termination of your participation in the Affiliate Program and your status as an Affiliate. You agree that all uses of the Marks by you will be on our behalf, and that all goodwill associated with use of the Marks belongs to us and will inure to our sole benefit. You agree not to use our website, the Marks, or any other of our proprietary content and materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays us in a negative light. You acknowledge and agree that you do not own and do not by these Terms acquire any right, title, or interest in or to our website, the Marks, or any of our other intellectual property, proprietary content, materials, technology, or rights, whether provided or used in connection with the Affiliate Program, on our website, or in any other manner whatsoever, and that all rights, title, and interest in and to the foregoing shall remain vested in and owned by us and/or the other constituent owners thereof.
10. ADVERTISING AND PUBLICITY
You agree not to create, publish, distribute, or print any written or visual materials, including e-mails, that refer to our Products or Affiliate Program or contains any Marks without first submitting those materials to us and receiving our prior written consent. If you intend to promote our Products or Affiliate Program via e-mail, you agree to comply with the CAN-SPAM Act of 2003 (Public Law No. 108-187) and the regulations thereunder, including, but not limited to, complying with the following requirements:
(a) The recipient’s e-mail address, the domain, and the sender’s name appearing in the e-mail shall accurately identify and represent the sender and the recipient of the e-mail and shall not contain materially false or misleading information;
(b) The subject line of the e-mail shall be clear, non-deceptive, and accurately describe the content of the e-mail;
(c) The content of the email shall clearly and conspicuously identify that it is an advertisement or solicitation, and shall contain an ad label that is easily noticeable to the recipient;
(d) The email must present the recipient with an obvious means of unsubscribing or opting out of receiving future e-mails via a link or other uncomplicated and expeditious means, and the recipient cannot be incentivized against opting out of the e-mail list;
(e) Opt-out or unsubscribe requests shall be honored by removing the recipient from the e-mail list within 10 business days of receiving the request; and
(f) The email shall contain a valid physical or P.O. Box postal address for the sender.
In addition, you must also comply with all applicable state anti-spam laws. All e-mails must be expressly sent on your behalf and must not directly or indirectly imply that the email is being sent by us or on our behalf. At all times, you must clearly represent yourself and your website as independent from us and our website.
11. PAY PER CLICK GUIDELINES
If you engage in pay-per-click (“PPC”) advertising for your website, you agree to comply with our PPC policies as follows:
(a) You may not bid on any of the Marks or any variations or misspellings of the Marks for search or content-based campaigns on advertising networks, search services, or similar services, including, but not limited to, Google, Bing, Yahoo, DuckDuckGo, Facebook or any other search or advertising network.
(b) You may not use any of the Marks in combination or sequence with any other keywords (e.g., “Plants By Mail Coupons”).
(c) You may not use any of the Marks in your ad title, ad copy, display name, or as the display URL.
(d) You may not direct link to our website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
(e) You may not bid in any manner appearing higher than Plants by Mail™ for any search term in position 1-5 in any auction-style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude the Marks from your program. We strongly recommend that you add the Marks as negative keywords.
We have a strict policy against PPC trademark bidding. If we determine that you have engaged in PPC trademark bidding with any of the Marks, we may immediately terminate your participation in the Affiliate Program. We reserve the right to add or modify the Marks from time to time and at any time, without prior notice to you, and these Terms will apply to such additional or modified Marks. We further reserve the right to modify or amend our PPC guidelines from time to time and at any time, without prior notice to you, and you agree to comply with all such modifications and amendments.
12. FTC ONLINE ADVERTISING DISCLOSURE REQUIREMENTS
You agree to comply with all Federal Trade Commission (FTC) laws, regulations, rules, and guidance related to online advertising disclosure requirements and endorsement. For information about FTC disclosure requirements, please review the FTC’s publication “.Com Disclosures – How to Make Effective Disclosures in Digital Advertising” located online at www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf ; and the FTC’s Endorsement Guides in 26 C.F.R. Part 255 located online at https://www.ftc.gov/sites/default/files/documents/ federal_register_notices/guides-concerning-use-endorsements-and-testimonials-advertising-16-cfr-part-255/091015guidesconcerningtestimonials.pdf.
You must include a disclosure statement within any websites, pages, blogs/posts, or social media posts where Links for the Affiliate Program are posted in connection with an endorsement or review and where it is not clear that the Links are paid advertisements. This disclosure statement shall be clear and concise and state that we are compensating you for your review or endorsement. If you received any Plants By Mail™ product or services for free in connection with your participation in the Affiliate Program, you shall also clearly state that you received free products and/or services from us in your disclosure. In addition:
(a) Disclosures shall be made as close as possible to the Link and related claims;
(b) Disclosures shall be placed “above the fold” of your website; scrolling should not be necessary to find the disclosure (e.g., the disclosure should be visible before the jump); and
(c) Pop-up disclosures are prohibited.
13. THIRD-PARTY WEBSITES AND SOCIAL MEDIA
You are permitted to promote the Products (including posting Links) on third party social media websites, including Facebook, Twitter, Instagram, Pinterest, and other blogs, forums and social media platforms in accordance with these Terms. If you use any social media websites to promote the Products, you must comply with each website’s own terms and conditions regarding the posting of promotional content. Further, you agree to comply with our social media policies as follows:
(a) You may promote the Products by posting Links on your own social media pages. For example, you may post a Facebook status update that states: “Click here for a 10% off sale at PlantsByMail.com through Wednesday.”
(b) You may not post your Links on any public forum found on our social media pages in an attempt to create Affiliate sales by those Links. For example, you may not post Links as comments to posts or news feed stories found on our Facebook page.
(c) You may not purchase or run advertisements on our social media pages using the Links or any of the Marks.
14. OPERATIONS OUTSIDE THE UNITED STATES
If you are located or conducting business in or taking orders from persons in countries outside of the United States, you agree to follow all applicable laws of those countries pertaining to your participation in the Affiliate Program. For example, if you are located or conducting business in or taking orders from persons in one or more of the European Union countries, you must comply with the European Union’s Privacy and Electronic Communications Directive.
15. REVERSALS AND CHARGEBACKS
From time to time, orders of Products may be reversed and your earned commissions may be adjusted or reduced due to order cancellations, duplicate tracking, returns, or disputed charges by Customers, or due to breach of any of these Terms. Any adjustment or reduction of your earned commissions will be reflected in your Affiliate Program account on the ShareASale Interface. ShareASale may withhold the payment of your earned commissions pending any adjustments or reductions.
16. COMMUNICATIONS POLICY
If Plants By Mail™ or ShareASale asks you for clarification or additional information regarding any Link clicks or orders for the Products, you agree to respond to the request promptly, no later than 48 hours after the request is made, truthfully, and completely. Following are violations of our communications policy:
(a) Your response to an information request by us or ShareASale is not prompt, is vague or incomplete, or appears to be deceptive or untrue;
(b) You fail to respond to an information request by us or ShareASale after we attempt to contact you by e-mail, mail, or delivery service at the e-mail, mailing, or physical address in your Affiliate Program account on the ShareASale Interface, or our e-mail, mail, or physical delivery to you is undeliverable; or
(c) You cannot substantiate or validate the source of your traffic to our website through the Links by evidence acceptable to us, in our sole and absolute discretion.
17. FRAUD PREVENTION
You shall ensure that your website includes appropriate protections designed to detect, identify, and prevent affiliate fraud. Affiliate fraud refers to tactics designed to generate unearned commissions from the Affiliate Program.
18. COMPLIANCE WITH LAWS
You agree that you will at all times promptly, effectively, and fully comply with all Laws applicable to affiliate marketing, digital advertising, commercial e-mail and text message communications, and to all of your activities and operations relating to or in connection with the Affiliate Program.
19. TERM AND TERMINATION
This Agreement will be effective upon our acceptance of your application to participate in the Affiliate Program, and will end when terminated by either us or you. Either party may terminate this Agreement at any time, for any reason, with or without cause, by delivering written notice to the other party. Upon termination: (a) your status as an Affiliate and your participation in the Affiliate Program will immediately end; (b) you must immediately discontinue the use of all of the Marks, including removing all Marks from your website; and (c) you must immediately cease using the Links.
Upon termination of this Agreement, except as provided below, you will be entitled to receive your accrued but unpaid commissions as of the date of termination. You will not be entitled to any new commissions generated after termination of this Agreement (including from Links distributed by you prior to such termination). You are responsible for communicating to Customers that you are no longer a participant in the Affiliate Program and that all distributed Links are no longer valid.
If we terminate this Agreement because (i) you have breached, violated, or failed to comply with any of these Terms (including any of the representations and agreements in the initial section of these Terms entitled “Overview”) or the terms of your agreement with ShareASale relating to the Affiliate Program; or (ii) you submitted an application to participate in the Affiliate Program which contained false or misleading information or omitted information that would have been material to our decision whether or not to accept you as an Affiliate; or (iii) we have reason to believe, in our sole and absolute discretion, that your participation in the Affiliate Program or any action taken by you in connection with the Affiliate Program is fraudulent, deceptive, or violates any Laws, then, in the case of any of such termination events, you will not be entitled to receive a payout of your accrued but unpaid commissions as of the date of such termination.
No termination of this Agreement will release either party from any liability which, at the time of termination, has already accrued to the other party or is attributable to a period prior to termination, nor preclude any party from pursuing any and all rights and remedies that such party may have under this Agreement or at law or in equity which accrued or are based upon any event occurring prior to termination.
20. DISCLAIMER
THE AFFILIATE PROGRAM AND YOUR PARTICIPATION THEREIN, OUR WEBSITE, ANY PRODUCTS OR SERVICES OFFERED ON OUR WEBSITE, ALL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, OUR DOMAIN NAME, THE MARKS, THE SHAREASALE INTERFACE, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED BY US OR USED BY YOU ON OUR BEHALF OR ON BEHALF OF ANY OF OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATE PROGRAM (COLLECTIVELY, THE “PROGRAM OFFERINGS”) ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” NEITHER PLANTSBYMAIL™, NOR ANY PARENT, SUBSIDIARY OR AFFILIATE OF PLANTSBYMAIL™, NOR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (ALL OF THE FOREGOING, COLLECTIVELY WITH PLANTSBYMAIL™, THE “PBM PARTIES”) MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PROGRAM OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, EACH OF THE PBM PARTIES DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
WE MAY DISCONTINUE ANY PROGRAM OFFERING OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY PROGRAM OFFERING AT ANY TIME AND FROM TIME TO TIME, WITHOUT PRIOR NOTICE TO YOU. NONE OF THE PBM PARTIES REPRESENT OR WARRANT THAT THE AFFILIATE PROGRAM OR PROGRAM OFFERINGS WILL CONTINUE TO BE AVAILABLE OR PROVIDED OR WILL FUNCTION AS DESCRIBED, EITHER CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE FREE FROM ERRORS, INACCURACIES, DEFECTS, HARMFUL COMPONENTS, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES. NONE OF THE PBM PARTIES REPRESENT OR WARRANT THAT YOU WILL BE FREE FROM ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR WEBSITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT, NOR WILL ANY OF THE PBM PARTIES BE RESPONSIBE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY OF SAME.
21. LIMITATION OF LIABILITY
YOU AGREE THAT NONE OF THE PBM PARTIES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, INTEREST, LOST GOODWILL, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION, ATTORNEY FEES, EXPERT FEES, COURT COSTS, OR OTHER LITIGATION EXPENSES ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE AFFILIATE PROGRAM, OR THE PROGRAM OFFERINGS, REGARDLESS OF THE CAUSE OF ACTION (WHETHER BASED IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY OF THE PBM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE MAXIMUM LIABILITY OF THE PBM PARTIES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
YOU AGREE THAT NONE OF THE PBM PARTIES WILL BE LIABLE OR RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES IN CONNECTION WITH ANY LOSS OF PROFITS, PROSPECTIVE PROFITS, REVENUES, ANTICIPATED SALES, GOODWILL, OR OTHER INCOME OR BENEFITS RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE AFFILIATE PROGRAM, OR ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE AFFILIATE PROGRAM.
22. INDEMNIFICATION
You will indemnify, defend, and hold harmless each of the PBM Parties from and against any and all claims, actions, proceedings, damages, liabilities, judgments, fines, penalties, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of litigation, arising from, relating to, resulting from, or in connection with (a) your participation in the Affiliate Program and your activities and operations in connection with the Affiliate Program; (b) any statements, claims, representations or warranties made by you regarding Plants By Mail™ or the Products that were not specifically authorized in writing by us; (c) any illegal, unfair, deceptive or unethical business practices whatsoever by you, whether with respect to your participation in the Affiliate Program, use of the Links, or otherwise; (d) your website; any materials, content, data, products or services that appear on your website; and the use, development, design, manufacture, production, advertising, promotion or marketing of your website; (e) your performance of and under this Agreement; (f) your breach, violation, or failure to comply with any of these Terms (including any of the representations and agreements in the initial section of these Terms entitled “Overview”) or the terms of your agreement with ShareASale relating to the Affiliate Program; and (g) any act or omission by you or any person or entity with whom you are affiliated or connected in any manner whatsoever.
23. RELATIONSHIP OF THE PARTIES
Plants By Mail™ and you are independent contracting parties and this Agreement is intended to create solely a contractual relationship between us and you. This Agreement does not and shall not be construed to create any employment, partnership, agency, joint venture, sales representative, franchise or similar relationship between Plants By Mail™ and you. You are not authorized to act as an agent of or otherwise represent Plants By Mail™, to make any representation, contract, warranty, obligations, or commitment on behalf of Plants By Mail™, to assume any obligation, commitment, or responsibility on behalf of Plants By Mail™, or to bind Plants By Mail™ to any contract, obligation or commitment.
24. CHANGES TO TERMS
We reserve the right to modify or otherwise amend any provision of these Terms and any other terms, policies, or guidelines governing your participation in the Affiliate Program from time to time and at any time, in our sole and absolute discretion, without prior notice to you, by providing written notice that these Terms have been so modified or amended. Such written notice may be provided by sending a notice to you at the e-mail, mailing, or physical address in your Affiliate Program account on the ShareASale Interface, or by posting a notice on our website, or by posting the modified Terms on our website and/or the ShareASale website, or by such other reasonable method of providing of notice as determined by us. Any modifications or other amendments to these Terms will be effective seven (7) days after providing such written notice. Your continued participation in the Affiliate Program following such 7-day period will constitute your acceptance of such changes or modifications.
25. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL
This Agreement and the rights and obligations of the parties shall be governed by and construed and enforced in accordance with the laws of the State of Alabama without regard to any applicable conflicts of laws or choice of law principles. Any legal action relating in any way to this Agreement shall be brought either in the Circuit Court of Baldwin County, Alabama, or the United States District Court for the Southern District Alabama, located in Mobile, Alabama (subject to jurisdictional requirements). THE PARTIES EACH HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
26. GENERAL PROVISIONS
(a) You may not assign, transfer, or delegate, in whole or in part, this Agreement or any of your rights or obligations under this Agreement, and any attempted assignment, transfer, or delegation will be null and void. We may assign this Agreement at any time in our sole and absolute discretion, without prior notice to you. This Agreement will be binding on our successors or assigns.
(b) Except for persons or entities entitled to indemnification under this Agreement, this Agreement is for the sole benefit of you and us, and nothing in this Agreement, expressed or implied, gives or will be construed to give to any person or entity other than you and us any legal or equitable rights under this Agreement.
(c) No waiver by us of any Term of this Agreement will be effective unless made by us or our authorized representative in writing. Our waiver of a breach by you of any Term of this Agreement shall not be construed as a waiver of any subsequent breach. No failure, delay, or omission by us to insist upon your strict performance of or compliance with any Term contained in this Agreement or to exercise any right or remedy under or with respect to this Agreement shall be deemed a waiver of such Term, right, or remedy, or any other term, provision, right, or remedy outside this Agreement.
(d) Except as otherwise provided in the section of these Terms entitled “Limitation of Liability,” in the event either party takes action to enforce any of its rights under this Agreement or successfully defends any action brought by the other party against it, the non-prevailing party shall pay all costs and expenses of such action or such defense incurred by the prevailing party, including, without limitation, attorneys’ fees and costs of litigation.
(e) If a court of competent jurisdiction determines that any Term (or portion thereof) of this Agreement is to any extent illegal, invalid, or unenforceable, such Term (or portion thereof) shall be excluded to the extent of the invalidity or unenforceability; all other Terms of this Agreement shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable Term (or portion thereof) shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable Term.
(f) The provisions of the sections in these Terms entitled “Term and Termination,” “Disclaimer,” “Limitation of Liability,” and “Indemnification,” the provisions of paragraph (d) of this section, and all other provisions in these Terms which require a party to pay any sum of money to the other party, or to defend, reimburse, indemnify, or hold harmless the other party, or which by their express provisions or by implication are to be performed after the termination of this Agreement or are prospective in nature, will survive the termination of this Agreement.
(g) This Agreement will be construed without regard to any presumption or other rule requiring construction against the party drafting the document or any provision hereof. It will be construed neither for nor against any party but shall be given its reasonable interpretation in accordance with the plain meaning of its terms.
(h) The headings of sections in this Agreement are for reference purposes only and will not affect the meaning or construction of the Terms of this Agreement.
AFFILIATE PROGRAM TERMS AND CONDITIONS
1. OVERVIEW
These Plants By Mail™ Affiliate Program Terms and Conditions (the “Terms”) contain legally binding terms and conditions that govern your participation in the Plants By Mail™ Affiliate Program, operated by ShareASale (the “Affiliate Program”). PLEASE REVIEW THESE TERMS CAREFULLY!
By applying to become a Plants By Mail™ affiliate (an “Affiliate”), you: (a) represent and warrant that you are over nineteen years of age; (b) represent and warrant that if you are applying to participate in the Affiliate Program on behalf of a company or other entity, you are an authorized representative and agent of such company or entity with the power and authority to bind such company or entity to these Terms; (c) acknowledge and agree that these Terms constitute a legally binding agreement (the “Agreement”) between Plants By Mail™ and you if you are accepted as a participant in the Affiliate Program; and (d) agree to abide by these Terms if you are accepted as a participant in the Affiliate Program. We reserve the right to modify or otherwise amend these Terms from time to time and at any time, and to terminate the Affiliate Program at any time, without prior notice to you. These Terms only govern the relationship between Plants By Mail™ and you in connection with your participation in the Affiliate Program. For all terms and conditions that govern your relationship with ShareASale in connection with your participation in the Affiliate Program, please refer to the agreement between you and ShareASale.
2. DEFINITIONS
In addition to the words and terms that are defined in the other sections of these Terms, the following words and terms have the following meanings:
(a) “Affiliate” means the applicant who has been accepted as a participant in the Affiliate Program.
(b) “Affiliate Program” means the Plants By Mail™ Affiliate Program operated by ShareASale.
(c) “Agreement” means these Terms which constitute a legally binding Agreement between Plants By Mail ™ and you.
(d) “commissions” means any fees that you earn in connection with your participation in the Affiliate Program.
(e) “Customer” means any visitor to your website or other individual to whom you promote the Products in connection with your participation in the Affiliate Program.
(f) “Laws” means all federal, state, and local laws, statutes, regulations, rules, ordinances, codes, decisions of courts, judgments, orders, decrees, guidelines, directives, licensing requirements, permits, permit conditions, and governmental restrictions and requirements, and all administrative and judicial rulings thereon and interpretations thereof.
(g) “Links” means links and banner ads to our website available to you through the ShareASale Interface for loading on to your website, and which consist of graphic images and/or text.
(h) “Marks” means (a) our and our affiliates’ owned or licensed registered and common law trademarks, trade names, logos, and similar identifying material, including, without limitation, the following: Plants By Mail™, PlantsbyMail.com®, Flowerwood®, Southern Living® Plant Collection, Encore® Azalea, Sunset® Plant Collection, Sunset WesternGarden Collection®, BetterBoxwood®, and Butterfly Candy™; and (b) registered and common law trademarks, trade names, logos, and similar identifying material owned or licensed by third parties whose Products are sold on our website.
(i) “our website” means the Plants By Mail™ website located at www.PlantsByMail.com or any other website that is owned or operated by or on behalf of Plants By Mail™.
(j) “Plants By Mail™”, “we”, “us”, and “our” refers to Flowerwood Direct, LLC, an Alabama limited liability company, d/b/a Plants By Mail™, located at 15315 Kelly Road, Loxley, Alabama 36551, together with our website and domain name, PlantsByMail.com®.
(k) “Products” means plants and other products and services sold and distributed by Plants By Mail™ on our website.
(l) “Qualifying Purchases” means purchases made when a Customer (i) clicks through the Links on your website to our website; (ii) following such click-through, adds a commission-eligible Product (identified by us on the ShareASale Interface) to the Customer’s shopping cart and places the order for that Product no later than thirty (30) days following the click-through; and (iii) pays us for that Product.
(m) “ShareASale” means ShareASale.com, Inc. located at 15 W. Hubbard Street, Suite 500, Chicago Illinois 60654, being the company that provides an affiliate marketing network service at www.shareasale.com, and operates the Affiliate Program for Plants By Mail™.
(n) “ShareASale Interface” means your Affiliate Program homepage on the intranet and software platform operated by ShareASale and the functions accessed by or made available to you through such platform, including, without limitation, the Links made available by us, commission payment information, and other Affiliate Program materials.
(o) “Terms” means these Plants By Mail™ Affiliate Program Terms and Conditions.
(p) “you” or “your” means the Affiliate.
(q) “your website” means, whether one or more, any websites, web pages, or other online services that you own, control, or operate and link to our website via the Links to promote the Products.
3. PURPOSE
The purpose of the Affiliate Program is to permit you to advertise and promote our Products on your website to Customers and, in exchange, to earn commissions for Qualifying Purchases.
4. ENROLLMENT
In order to apply to participate in the Affiliate Program, you must first establish an account with ShareASale. After creating your ShareASale account, you may apply to participate in the Affiliate Program by submitting an application to Plants By Mail™ via ShareASale’s website. Your application must include all information requested by Plants By Mail™ and ShareASale, including information about your website, links to any website that you intend to use in connection with the Affiliate Program, your website’s visitor demographics, your contact information and your website’s traffic statistics. After receiving your application, we will review your application materials and your website and notify you by email of your acceptance into or rejection from the Affiliate Program, usually within three (3) business days. We reserve the right to reject your application for any reason. If you have questions regarding your application, please contact us.
5. LINKING TO OUR WEBSITE
After we have accepted you into the Affiliate Program, we will make Links available to you through the ShareASale Interface. The Links will serve to identify you and your website as a participant in the Affiliate Program and will establish a link from your website to our website. By utilizing these Links, Customers will be able to order the Products described or referenced on your website directly from us.
Links are customized for use in the Affiliate Program and permit the tracking, reporting and accrual of all commissions that you may earn by participating in the Affiliate Program. We may modify the Links from time to time and at any time without prior notice to you. By participating in the Affiliate Program and displaying the Links on your website, you consent to us and ShareASale monitoring, using, and disclosing information about your website and Customers. When linking to our website, you agree that you will:
(a) Only use and display the Links on your website in their entirety and exactly and in the most current form as provided to you through the ShareASale Interface, and not manipulate or change the Links in any manner;
(b) List all domains of your websites that currently contain our Links in your Affiliate Program profile on the ShareASale Interface;
(c) Not copy, resemble, or mirror the look and feel of our website on your website, nor in any way create the impression that your website is our website or any part thereof, including, without limitation, framing our website on your website in any manner;
(d) Not engage in cookie stuffing and or include pop-ups, false, or misleading links on your website, nor attempt to mask the referring URL information for any Link (i.e. the page from which the Link click is originating);
(e) Not redirect any Link in a manner that hides or manipulates its source or gives the appearance that a Customer’s click on a Link came from another domain
(f) Not promote, post, or link to information about methods to manipulate or work around the requirements of a Link promotion;
(g) Not advertise Links obtained from any means other than the ShareASale Interface, including via our non-referral advertising, customer e-mails, paid searches or any other campaign; and
(h) Not mislead customers or give the appearance that any offer on our website requires a click from your website in order to redeem such offer. For example, if we are running a promotion on our website for free shipping on Product purchases over $100, you may not suggest or imply that a Customer must click a Link from your website to receive this deal.
If you fail to properly implement the Links on your website, you will not be entitled to receive any commissions.
6. EARNING COMMISSIONS
Commissions will be paid to you on Qualifying Purchases. We reserve the right to reject any orders for Products that do not comply with the requirements that appear on our website. Customers who make Qualifying Purchases are our customers with respect to all Products that they purchase.
Commissions payable to you in connection with your participation in the Affiliate Program will be calculated as provided on the ShareASale Interface. The ShareASale Interface will identify the commission-eligible Products and the percentage commission payable for each such Product. Commission-eligible Products and commission percentages are subject to change from time to time and at any time, without prior notice to you. You are encouraged to regularly review the ShareASale Interface for the most current commission-eligible Products and commission percentages.
We may, from time to time, offer to you additional ways to earn commissions through your participation in the Affiliate Program (e.g., via bonus incentives or similar programs), the terms and conditions of which will be made available to you via the ShareASale Interface.
7. PAYMENT TERMS & SHAREASALE
The calculation and payment of all commissions that you earn by participating in the Affiliate Program are performed by and processed through ShareASale. Please refer to your agreement with ShareASale for all terms and conditions relating to the calculation and payment of your commissions. Commissions will be paid to you solely through ShareASale. Plants By Mail™ is not responsible for paying and has no obligation to pay any commissions or compensation directly to you. If you have a question or dispute regarding the calculation or payment of your commissions, you must contact ShareASale to answer such question or resolve such dispute. Plants By Mail™ is not responsible for and disclaims all liability to you for miscalculations, errors, or mistakes in ShareASale’s payment of commissions to you.
Commissions paid by ShareASale to you are the only compensation that is payable to you for participating in the Affiliate Program. No other compensation of any kind is payable to you under this Agreement. You are solely responsible for (a) all costs and expenses incurred by you in participating in the Affiliate Program and performing your obligations under this Agreement ; and (b) all taxes, fees, and other charges that may be imposed on you in connection with your participation in the Affiliate Program.
8. YOUR WEBSITE REQUIREMENTS
You are solely responsible for your website, including all materials and content that appear on your website, and the development, operation, and maintenance of your website.
You may display the Links as often and in as many areas on your website as you desire, however, we have the right at any time while you are an Affiliate to review and approve your website and the placement, appearance, and use of the Links on your website. We have the right, as a condition of your participation in the Affiliate Program, to require you to change or modify portions of your website and/or the placement, appearance, or use of the Links on your website in such manner as we direct, and to terminate your participation in the Affiliate Program if you do not make such changes or modifications.
At all times during your participation in the Affiliate Program, you agree that your website shall not do any of the following:
(a) Infringe on our or anyone else’s intellectual property, publicity, privacy, proprietary rights, or other rights;
(b) Violate or be used to violate any Laws;
(c) Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contain nudity, pornography, or sexually explicit materials;
(d) Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to or may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
(e) Be directed toward children under 13 years of age, or otherwise violate or fail to comply with the Children’s Online Privacy Protection Act, 15 U.S.C. §§ 6501-6506, and the regulations thereunder;
(f) Contain software or use technology that attempts to intercept, divert, or redirect internet traffic to or from any other website, or that potentially enables the diversion of commissions from another affiliate’s website;
(g) Attempt to interfere with, harm, reverse engineer, steal from, or gain unauthorized access to our website, user accounts, or the technology and equipment supporting our website;
(h) Violate any of our policies; or
(i) Use any of the Marks or any variations or misspellings of the Marks as part of the domain or sub-domain for your website (e.g., plantsbymail.website.com or www.plantsbymail-coupons.com, etc.)
Your website must accurately and adequately disclose, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from Customers, including a disclosure, where applicable or appropriate, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from Customers, and place or recognize cookies on visitors’ browsers.
9. LICENSE
We grant to you a limited, non-exclusive, non-transferrable, revocable right (a) to access our website through the Links solely in accordance with the Terms; and (b) solely in connection with the Links, to use only those Marks that we provide to you or authorize for such purpose via the ShareASale Interface or otherwise, in each case solely for the limited purpose of promoting the Products to Customers in connection with your participation in the Affiliate Program. You may use the Marks only as directed by us and in exactly the form that we provide them to you. You may only use the Marks while you are a participant in the Affiliate Program. The license granted to you in this paragraph will immediately terminate upon termination of your participation in the Affiliate Program and your status as an Affiliate. You agree that all uses of the Marks by you will be on our behalf, and that all goodwill associated with use of the Marks belongs to us and will inure to our sole benefit. You agree not to use our website, the Marks, or any other of our proprietary content and materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays us in a negative light. You acknowledge and agree that you do not own and do not by these Terms acquire any right, title, or interest in or to our website, the Marks, or any of our other intellectual property, proprietary content, materials, technology, or rights, whether provided or used in connection with the Affiliate Program, on our website, or in any other manner whatsoever, and that all rights, title, and interest in and to the foregoing shall remain vested in and owned by us and/or the other constituent owners thereof.
10. ADVERTISING AND PUBLICITY
You agree not to create, publish, distribute, or print any written or visual materials, including e-mails, that refer to our Products or Affiliate Program or contains any Marks without first submitting those materials to us and receiving our prior written consent. If you intend to promote our Products or Affiliate Program via e-mail, you agree to comply with the CAN-SPAM Act of 2003 (Public Law No. 108-187) and the regulations thereunder, including, but not limited to, complying with the following requirements:
(a) The recipient’s e-mail address, the domain, and the sender’s name appearing in the e-mail shall accurately identify and represent the sender and the recipient of the e-mail and shall not contain materially false or misleading information;
(b) The subject line of the e-mail shall be clear, non-deceptive, and accurately describe the content of the e-mail;
(c) The content of the email shall clearly and conspicuously identify that it is an advertisement or solicitation, and shall contain an ad label that is easily noticeable to the recipient;
(d) The email must present the recipient with an obvious means of unsubscribing or opting out of receiving future e-mails via a link or other uncomplicated and expeditious means, and the recipient cannot be incentivized against opting out of the e-mail list;
(e) Opt-out or unsubscribe requests shall be honored by removing the recipient from the e-mail list within 10 business days of receiving the request; and
(f) The email shall contain a valid physical or P.O. Box postal address for the sender.
In addition, you must also comply with all applicable state anti-spam laws. All e-mails must be expressly sent on your behalf and must not directly or indirectly imply that the email is being sent by us or on our behalf. At all times, you must clearly represent yourself and your website as independent from us and our website.
11. PAY PER CLICK GUIDELINES
If you engage in pay-per-click (“PPC”) advertising for your website, you agree to comply with our PPC policies as follows:
(a) You may not bid on any of the Marks or any variations or misspellings of the Marks for search or content-based campaigns on advertising networks, search services, or similar services, including, but not limited to, Google, Bing, Yahoo, DuckDuckGo, Facebook or any other search or advertising network.
(b) You may not use any of the Marks in combination or sequence with any other keywords (e.g., “Plants By Mail Coupons”).
(c) You may not use any of the Marks in your ad title, ad copy, display name, or as the display URL.
(d) You may not direct link to our website from any PPC ad or use redirects that yield the same result. Visitors must be directed to an actual page on your website.
(e) You may not bid in any manner appearing higher than Plants by Mail™ for any search term in position 1-5 in any auction-style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude the Marks from your program. We strongly recommend that you add the Marks as negative keywords.
We have a strict policy against PPC trademark bidding. If we determine that you have engaged in PPC trademark bidding with any of the Marks, we may immediately terminate your participation in the Affiliate Program. We reserve the right to add or modify the Marks from time to time and at any time, without prior notice to you, and these Terms will apply to such additional or modified Marks. We further reserve the right to modify or amend our PPC guidelines from time to time and at any time, without prior notice to you, and you agree to comply with all such modifications and amendments.
12. FTC ONLINE ADVERTISING DISCLOSURE REQUIREMENTS
You agree to comply with all Federal Trade Commission (FTC) laws, regulations, rules, and guidance related to online advertising disclosure requirements and endorsement. For information about FTC disclosure requirements, please review the FTC’s publication “.Com Disclosures – How to Make Effective Disclosures in Digital Advertising” located online at www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf ; and the FTC’s Endorsement Guides in 26 C.F.R. Part 255 located online at https://www.ftc.gov/sites/default/files/documents/ federal_register_notices/guides-concerning-use-endorsements-and-testimonials-advertising-16-cfr-part-255/091015guidesconcerningtestimonials.pdf.
You must include a disclosure statement within any websites, pages, blogs/posts, or social media posts where Links for the Affiliate Program are posted in connection with an endorsement or review and where it is not clear that the Links are paid advertisements. This disclosure statement shall be clear and concise and state that we are compensating you for your review or endorsement. If you received any Plants By Mail™ product or services for free in connection with your participation in the Affiliate Program, you shall also clearly state that you received free products and/or services from us in your disclosure. In addition:
(a) Disclosures shall be made as close as possible to the Link and related claims;
(b) Disclosures shall be placed “above the fold” of your website; scrolling should not be necessary to find the disclosure (e.g., the disclosure should be visible before the jump); and
(c) Pop-up disclosures are prohibited.
13. THIRD-PARTY WEBSITES AND SOCIAL MEDIA
You are permitted to promote the Products (including posting Links) on third party social media websites, including Facebook, Twitter, Instagram, Pinterest, and other blogs, forums and social media platforms in accordance with these Terms. If you use any social media websites to promote the Products, you must comply with each website’s own terms and conditions regarding the posting of promotional content. Further, you agree to comply with our social media policies as follows:
(a) You may promote the Products by posting Links on your own social media pages. For example, you may post a Facebook status update that states: “Click here for a 10% off sale at PlantsByMail.com through Wednesday.”
(b) You may not post your Links on any public forum found on our social media pages in an attempt to create Affiliate sales by those Links. For example, you may not post Links as comments to posts or news feed stories found on our Facebook page.
(c) You may not purchase or run advertisements on our social media pages using the Links or any of the Marks.
14. OPERATIONS OUTSIDE THE UNITED STATES
If you are located or conducting business in or taking orders from persons in countries outside of the United States, you agree to follow all applicable laws of those countries pertaining to your participation in the Affiliate Program. For example, if you are located or conducting business in or taking orders from persons in one or more of the European Union countries, you must comply with the European Union’s Privacy and Electronic Communications Directive.
15. REVERSALS AND CHARGEBACKS
From time to time, orders of Products may be reversed and your earned commissions may be adjusted or reduced due to order cancellations, duplicate tracking, returns, or disputed charges by Customers, or due to breach of any of these Terms. Any adjustment or reduction of your earned commissions will be reflected in your Affiliate Program account on the ShareASale Interface. ShareASale may withhold the payment of your earned commissions pending any adjustments or reductions.
16. COMMUNICATIONS POLICY
If Plants By Mail™ or ShareASale asks you for clarification or additional information regarding any Link clicks or orders for the Products, you agree to respond to the request promptly, no later than 48 hours after the request is made, truthfully, and completely. Following are violations of our communications policy:
(a) Your response to an information request by us or ShareASale is not prompt, is vague or incomplete, or appears to be deceptive or untrue;
(b) You fail to respond to an information request by us or ShareASale after we attempt to contact you by e-mail, mail, or delivery service at the e-mail, mailing, or physical address in your Affiliate Program account on the ShareASale Interface, or our e-mail, mail, or physical delivery to you is undeliverable; or
(c) You cannot substantiate or validate the source of your traffic to our website through the Links by evidence acceptable to us, in our sole and absolute discretion.
17. FRAUD PREVENTION
You shall ensure that your website includes appropriate protections designed to detect, identify, and prevent affiliate fraud. Affiliate fraud refers to tactics designed to generate unearned commissions from the Affiliate Program.
18. COMPLIANCE WITH LAWS
You agree that you will at all times promptly, effectively, and fully comply with all Laws applicable to affiliate marketing, digital advertising, commercial e-mail and text message communications, and to all of your activities and operations relating to or in connection with the Affiliate Program.
19. TERM AND TERMINATION
This Agreement will be effective upon our acceptance of your application to participate in the Affiliate Program, and will end when terminated by either us or you. Either party may terminate this Agreement at any time, for any reason, with or without cause, by delivering written notice to the other party. Upon termination: (a) your status as an Affiliate and your participation in the Affiliate Program will immediately end; (b) you must immediately discontinue the use of all of the Marks, including removing all Marks from your website; and (c) you must immediately cease using the Links.
Upon termination of this Agreement, except as provided below, you will be entitled to receive your accrued but unpaid commissions as of the date of termination. You will not be entitled to any new commissions generated after termination of this Agreement (including from Links distributed by you prior to such termination). You are responsible for communicating to Customers that you are no longer a participant in the Affiliate Program and that all distributed Links are no longer valid.
If we terminate this Agreement because (i) you have breached, violated, or failed to comply with any of these Terms (including any of the representations and agreements in the initial section of these Terms entitled “Overview”) or the terms of your agreement with ShareASale relating to the Affiliate Program; or (ii) you submitted an application to participate in the Affiliate Program which contained false or misleading information or omitted information that would have been material to our decision whether or not to accept you as an Affiliate; or (iii) we have reason to believe, in our sole and absolute discretion, that your participation in the Affiliate Program or any action taken by you in connection with the Affiliate Program is fraudulent, deceptive, or violates any Laws, then, in the case of any of such termination events, you will not be entitled to receive a payout of your accrued but unpaid commissions as of the date of such termination.
No termination of this Agreement will release either party from any liability which, at the time of termination, has already accrued to the other party or is attributable to a period prior to termination, nor preclude any party from pursuing any and all rights and remedies that such party may have under this Agreement or at law or in equity which accrued or are based upon any event occurring prior to termination.
20. DISCLAIMER
THE AFFILIATE PROGRAM AND YOUR PARTICIPATION THEREIN, OUR WEBSITE, ANY PRODUCTS OR SERVICES OFFERED ON OUR WEBSITE, ALL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, OUR DOMAIN NAME, THE MARKS, THE SHAREASALE INTERFACE, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED BY US OR USED BY YOU ON OUR BEHALF OR ON BEHALF OF ANY OF OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATE PROGRAM (COLLECTIVELY, THE “PROGRAM OFFERINGS”) ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” NEITHER PLANTSBYMAIL™, NOR ANY PARENT, SUBSIDIARY OR AFFILIATE OF PLANTSBYMAIL™, NOR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (ALL OF THE FOREGOING, COLLECTIVELY WITH PLANTSBYMAIL™, THE “PBM PARTIES”) MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE PROGRAM OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, EACH OF THE PBM PARTIES DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE.
WE MAY DISCONTINUE ANY PROGRAM OFFERING OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY PROGRAM OFFERING AT ANY TIME AND FROM TIME TO TIME, WITHOUT PRIOR NOTICE TO YOU. NONE OF THE PBM PARTIES REPRESENT OR WARRANT THAT THE AFFILIATE PROGRAM OR PROGRAM OFFERINGS WILL CONTINUE TO BE AVAILABLE OR PROVIDED OR WILL FUNCTION AS DESCRIBED, EITHER CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE FREE FROM ERRORS, INACCURACIES, DEFECTS, HARMFUL COMPONENTS, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES. NONE OF THE PBM PARTIES REPRESENT OR WARRANT THAT YOU WILL BE FREE FROM ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR WEBSITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT, NOR WILL ANY OF THE PBM PARTIES BE RESPONSIBE OR LIABLE TO YOU OR ANY THIRD PARTY FOR ANY OF SAME.
21. LIMITATION OF LIABILITY
YOU AGREE THAT NONE OF THE PBM PARTIES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, INTEREST, LOST GOODWILL, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION, ATTORNEY FEES, EXPERT FEES, COURT COSTS, OR OTHER LITIGATION EXPENSES ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, THE AFFILIATE PROGRAM, OR THE PROGRAM OFFERINGS, REGARDLESS OF THE CAUSE OF ACTION (WHETHER BASED IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY OF THE PBM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE MAXIMUM LIABILITY OF THE PBM PARTIES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
YOU AGREE THAT NONE OF THE PBM PARTIES WILL BE LIABLE OR RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES IN CONNECTION WITH ANY LOSS OF PROFITS, PROSPECTIVE PROFITS, REVENUES, ANTICIPATED SALES, GOODWILL, OR OTHER INCOME OR BENEFITS RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE AFFILIATE PROGRAM, OR ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE AFFILIATE PROGRAM.
22. INDEMNIFICATION
You will indemnify, defend, and hold harmless each of the PBM Parties from and against any and all claims, actions, proceedings, damages, liabilities, judgments, fines, penalties, losses, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of litigation, arising from, relating to, resulting from, or in connection with (a) your participation in the Affiliate Program and your activities and operations in connection with the Affiliate Program; (b) any statements, claims, representations or warranties made by you regarding Plants By Mail™ or the Products that were not specifically authorized in writing by us; (c) any illegal, unfair, deceptive or unethical business practices whatsoever by you, whether with respect to your participation in the Affiliate Program, use of the Links, or otherwise; (d) your website; any materials, content, data, products or services that appear on your website; and the use, development, design, manufacture, production, advertising, promotion or marketing of your website; (e) your performance of and under this Agreement; (f) your breach, violation, or failure to comply with any of these Terms (including any of the representations and agreements in the initial section of these Terms entitled “Overview”) or the terms of your agreement with ShareASale relating to the Affiliate Program; and (g) any act or omission by you or any person or entity with whom you are affiliated or connected in any manner whatsoever.
23. RELATIONSHIP OF THE PARTIES
Plants By Mail™ and you are independent contracting parties and this Agreement is intended to create solely a contractual relationship between us and you. This Agreement does not and shall not be construed to create any employment, partnership, agency, joint venture, sales representative, franchise or similar relationship between Plants By Mail™ and you. You are not authorized to act as an agent of or otherwise represent Plants By Mail™, to make any representation, contract, warranty, obligations, or commitment on behalf of Plants By Mail™, to assume any obligation, commitment, or responsibility on behalf of Plants By Mail™, or to bind Plants By Mail™ to any contract, obligation or commitment.
24. CHANGES TO TERMS
We reserve the right to modify or otherwise amend any provision of these Terms and any other terms, policies, or guidelines governing your participation in the Affiliate Program from time to time and at any time, in our sole and absolute discretion, without prior notice to you, by providing written notice that these Terms have been so modified or amended. Such written notice may be provided by sending a notice to you at the e-mail, mailing, or physical address in your Affiliate Program account on the ShareASale Interface, or by posting a notice on our website, or by posting the modified Terms on our website and/or the ShareASale website, or by such other reasonable method of providing of notice as determined by us. Any modifications or other amendments to these Terms will be effective seven (7) days after providing such written notice. Your continued participation in the Affiliate Program following such 7-day period will constitute your acceptance of such changes or modifications.
25. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL
This Agreement and the rights and obligations of the parties shall be governed by and construed and enforced in accordance with the laws of the State of Alabama without regard to any applicable conflicts of laws or choice of law principles. Any legal action relating in any way to this Agreement shall be brought either in the Circuit Court of Baldwin County, Alabama, or the United States District Court for the Southern District Alabama, located in Mobile, Alabama (subject to jurisdictional requirements). THE PARTIES EACH HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
26. GENERAL PROVISIONS
(a) You may not assign, transfer, or delegate, in whole or in part, this Agreement or any of your rights or obligations under this Agreement, and any attempted assignment, transfer, or delegation will be null and void. We may assign this Agreement at any time in our sole and absolute discretion, without prior notice to you. This Agreement will be binding on our successors or assigns.
(b) Except for persons or entities entitled to indemnification under this Agreement, this Agreement is for the sole benefit of you and us, and nothing in this Agreement, expressed or implied, gives or will be construed to give to any person or entity other than you and us any legal or equitable rights under this Agreement.
(c) No waiver by us of any Term of this Agreement will be effective unless made by us or our authorized representative in writing. Our waiver of a breach by you of any Term of this Agreement shall not be construed as a waiver of any subsequent breach. No failure, delay, or omission by us to insist upon your strict performance of or compliance with any Term contained in this Agreement or to exercise any right or remedy under or with respect to this Agreement shall be deemed a waiver of such Term, right, or remedy, or any other term, provision, right, or remedy outside this Agreement.
(d) Except as otherwise provided in the section of these Terms entitled “Limitation of Liability,” in the event either party takes action to enforce any of its rights under this Agreement or successfully defends any action brought by the other party against it, the non-prevailing party shall pay all costs and expenses of such action or such defense incurred by the prevailing party, including, without limitation, attorneys’ fees and costs of litigation.
(e) If a court of competent jurisdiction determines that any Term (or portion thereof) of this Agreement is to any extent illegal, invalid, or unenforceable, such Term (or portion thereof) shall be excluded to the extent of the invalidity or unenforceability; all other Terms of this Agreement shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable Term (or portion thereof) shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable Term.
(f) The provisions of the sections in these Terms entitled “Term and Termination,” “Disclaimer,” “Limitation of Liability,” and “Indemnification,” the provisions of paragraph (d) of this section, and all other provisions in these Terms which require a party to pay any sum of money to the other party, or to defend, reimburse, indemnify, or hold harmless the other party, or which by their express provisions or by implication are to be performed after the termination of this Agreement or are prospective in nature, will survive the termination of this Agreement.
(g) This Agreement will be construed without regard to any presumption or other rule requiring construction against the party drafting the document or any provision hereof. It will be construed neither for nor against any party but shall be given its reasonable interpretation in accordance with the plain meaning of its terms.
(h) The headings of sections in this Agreement are for reference purposes only and will not affect the meaning or construction of the Terms of this Agreement.