FTD Florist License Agreement for Images and Advertisements

PLEASE READ THIS AGREEMENT BEFORE CLICKING ON "I AGREE" TAB/BUTTON AND ACCESSING AN/OR USING THE FTD IMAGES OR AD SLICKS, IF YOU DO NOT AGREE TO THESE TERMS, DO NOT PROCEED ANY FURTHER AND DO NOT ACCES OR DOWNLOAD THE FTD IMAGES OR ADVERTISING SLICKS OR USE THEM IN ANY MANNER. BY CLICKING "I AGREE" TAB/BUTTON WHICH TAKES YOU TO THESE LICENSE AGREEMENT TERMS AND CONDITIONS AND/OR ACCESSING OR USING FTD IMAGES OR AD SLICKS OR ANY UPDATES, YOU ARE AGREEING TO ACCEPT A LICENSE FOR THE USE OF IMAGES , AD SLICKS AND ANY UPDATE, AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT ( "YOU " SHALL HEREIN AFTER BE REFERRED TO AS "LICENSEE"). IF LICENSEE DO NOT ACCEPT ALL OF THE TERMS, DO NOT CLICK ON THE" I AGREE" TAB /BUTTON AND DO NOT DOWNLOAD, INSTALL OR USE THE FTD IMAGES, AD SLICKS OR UPDATE. THE TERMS OF THIS LICENSE AGREEMENT AND UPDATE SUPERCEDE/ SUPPLEMENT ALL PRIOR VERSIONS AND AGREEMENTS.

A. GRANT
This Agreement when signed by both Licensee and Florists Transworld Delivery Inc ('FTD") confirms FTD's grant to Licensee of the right to obtain and use the Images in accordance with the following terms and conditions:

1. The Images are subject to a license only for Licensee's use in the production of promotional materials for FTD products. All wire orders generated by use of the Images must be cleared through FTD.

2. All printed copies, reproductions, and uses of the Images must feature the FTD mark, copyright notice, product number, and any other text assigned to each Image as provided by FTD, if that image has a registered mark or copyright. If the images are marked with R or tm symbol they are registered or copyrighted marks.

Except that Sender may for tracking purposes just list images on its website or other marketing that ties in directly to the registered FTD image and product number with the registered FTD mark and materials with its own specific product numbers identified with Senders internal tracking system will provide tracking of the sending of all orders of FTD products shown by such images that verify that all such orders were sent through FTD for clearing, to FTD reasonable satisfaction.

Sender agrees that FTD may on reasonable advance notice inspect and audit such records to verify that such orders of FTD products based on registered FTD images were sent through FTD for clearing. In the event that such audit shows that more than 3% of such orders were not properly sent through FTD for clearing then Sender shall pay FTD immediately upon demand, the entire cost of the loss of clearinghouse fees on such orders.

3. The Images may not be modified, altered, adapted, or changed, in whole or in part, to create derivative Images of any kind, other than to add the information specified in the Ad Slicks (e.g., shop name, address, phone number, etc.).

4. The Images shall not be used in association with any trade name or mark other than the florist store's Member name and the Member's city and state address must be prominently displayed in each advertisement featuring any Image.

5. The Images shall not be used in proximity to images of non-FTD products or non-FTD marks and names so as to cause confusion as to which products are those of FTD.

6. The Images may only be used on the website, if any identified below. A separate license is required for each website, if any. Notwithstanding the foregoing, permission is hereby granted to Licensee to use such images on other affiliated sites that are hosted by Licensee and identified with Licenseer name on such sites along with properly identified FTD images. It is understood and agreed that Sender does not have ownership in or otherwise have control of the links on the internet that may collect and forward orders for flowers to Sender, and will cooperate with FTD if such links infringe any of FTD's marks or copyrights, to the extent permitted by law.

7. Membership Rule 2 (See Section O. herein) applies to all use of the Images and FTD marks.

8. The Images shall not be transferred or given to any third party for any purpose not in accordance with the terms of this Agreement.

9. Licensee will be in material breach of this license agreement as well as in violation of FTD Standards of usage of its Marks, if Licensee scan, copy, download or otherwise obtain FTD Images or advertising from any other florist's website or from any other source whatsoever other than directly from FTD by e-mail or in CD form, from an authorized FTD Website or as may otherwise be authorized in writing by FTD designating an FTD authorized source.

10. Use of the Images shall be immediately terminated: a) when FTD ceases to use an Image in the most current FTD Floral Selections Guide provided however an old image can continue to be used by Licensee at Licensee's own risk as to it being filled by Licensees unless otherwise expressly permitted by an authorized representative of FTD; b) in the event Licensee's FTD Membership is terminated or suspended, or Licensee are put on probation; or c) upon request of FTD for any legal or commercial reason and FTD shall have no liability for such termination.

B. PROPRIETARY RIGHTS TO CONTENT
Licensee acknowledge all the content of the Images, including but not limited to text, trademarks, copyrights, software, audio, photographs, video, graphics, and other material contained in the Images provided to Licensee by FTD are exclusively owned by or licensed to FTD. Licensee therefore agree to use this content only as expressly authorized by FTD.

C. MODIFICATIONS TO AGREEMENT
Licensee agree, during the period of this Agreement, that FTD may: (1) revise the terms and conditions of this Agreement; and/or (2) modify or terminate the use by Licensee of the Images provided under this Agreement at any time, per the terms and conditions of the agreement. FTD shall not be liable to Licensee or any third party should FTD exercise its right to modify or discontinue the use of the Images. Any such revision or change will be binding and effective immediately on: publication in FTD's Newsletter or Clearinghouse Statement Message Center; posting on the Mercury Network; or notification to Licensee by e-mail or United States mail. Licensee agree to review FTD's announcements, including the Agreement, periodically to be aware of any such revisions. If Licensee does not agree with any revision to the Agreement, Licensee's only recourse is to discontinue use of the Images within 30 days and attempt to reach a resolution with FTD regarding such revision within such 30 day period. If no resolution can be reached with FTD in such 30 day period Licensee agree to immediately discontinue use of the FTD images. Licensee may terminate this Agreement at any time by providing us with notice by e-mail addressed to marketingdept@FTDi.com or by United States mail addressed to Marketing Department, Florists' Transworld Delivery, Inc., 3113 Woodcreek Drive, Downers Grove, Illinois 60515. Notice of Licensee's termination will be effective on receipt and processing by us. Licensee agrees that, by continuing to use the Images following notice of any revision to this Agreement or change in the Images, Licensee agree to abide by any such revisions or changes.

D. LIMITATION OF LIABILITY
FTD and its contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use the Images or for the cost of procurement of substitute images. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, FTD's liability is limited to the extent permitted by law. FTD disclaims any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from Licensee's use of the Images; (2) loss or liability resulting from acts of God; (3) loss or liability resulting from Licenseer unauthorized use or misuse of the Images; (4) loss or liability resulting from errors, omissions, or misstatements in any and all information, services(s) except for loss or liability due solely to FTD's gross negligence or intentional misconduct, or Images provided under this Agreement.

E. INDEMNITY
Licensee agree to release, indemnify, and hold FTD, its contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claims and expenses, including attorney's fees, of third parties relating to or arising under this Agreement and use of the Images, including without limitation infringement by Licensee or someone else (such as Licensee's website host) of any intellectual property or other proprietary right of any person or entity, or from the violation of any FTD operating rule or policy relating to the use of the Images provided. When FTD is threatened with suit by a third party, FTD may seek written assurances from Licensee concerning Licensee's promise to indemnify FTD; Licensee's failure to provide those assurances may be considered by FTD to be a breach of Licensee's Agreement.

F. DISCLAIMER OF WARRANTIES
Licensee agree and warrant the information that Licensee provide to us to use the Images is, to the best of Licensee's knowledge and belief, accurate and complete, and that any future changes to this information will be provided to us in a timely manner according to the modification procedures in place at that time.

LICENSEE AGREE THAT LICENSEE'S USE OF OUR IMAGES IS SOLELY AT LICENSEE'S OWN RISK. LICENSEE AGREE THAT THE IMAGES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS.

FTD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FTD MAKES NO WARRANTY THAT THE IMAGES WILL MEET LICENSEE'S REQUIREMENTS, OR THAT THE IMAGES WILL BE PROVIDED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FTD MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE IMAGES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION ON THE IMAGES OR THAT DEFECTS IN THE IMAGES SOFTWARE WILL BE CORRECTED.

LICENSEE UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE IMAGES IS DONE AT LICENSEE'S OWN DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

FTD MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY TRANSACTIONS ENTERED INTO BY LICENSEE THROUGH USE OF THE IMAGES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM FTD OR FROM THE IMAGES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE.

G. RIGHT OF REFUSAL
FTD, in its sole discretion, reserves the right to refuse to allow Licensee to use the Images for any legal or commercial reason. Licensee agree that FTD shall not be liable to Licensee for loss or damages that may result from our refusal to permit such use.

H. NOTICE
All notices to a party shall be in writing and shall be made either via email or conventional mail. The email address or mailing address for Licensee shall be the latest email address and /or mailing address furnished to FTD by Licensee as FTD member or a FTD Sending only florist with FTD. The email address for FTD shall be at marketingdept@FTDi.com.

I. SEVERABILITY
Licensee agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.

J. ENTIRETY
Licensee agree that this Agreement is the complete and exclusive agreement between Licensee and FTD regarding the Images. This Agreement supersedes all prior agreements and understandings, whether established by custom, practice, policy or precedent.

K. GOVERNING LAW
Licensee agree that this Agreement shall be governed in all respects by and construed in accordance with the laws of the State of Illinois, United States of America, excluding its conflict of laws rules. Licensee and FTD each submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Northern District of Illinois, Du Page County. This Agreement will not be governed by the United Nations Convention on Contracts for International Sale of Goods, the application of which is expressly excluded.

L. NO JOINT VENTURE
Nothing contained herein shall be construed to place the parties in the relationship of partners or joint venturers, it being agreed and understood as well that each party is an independent contractor and is not an agent or employee of the other party.

M. TITLES AND HEADINGS
Titles and headings herein are for convenient reference only and are not part of this Agreement.

N. FEES
Licensee's fees for use of the Images are $.0 per High Resolution Image (as ordered through the Marketing Department-If no images are ordered, no fee will be applied).

O. Use of FTD images on Websites.
The Licensee under this license agreement is prohibited from using the FTD images on any other website on the internet except those authorized websites of the Licensee that is registered with FTD as a permitted website of that Licensee subject always to FTD exclusive right to approve or modify the location and usage of such images on such authorized sties.

As the owner of the FTD emblem and other trademarks, FTD may require FTD Member Floirsts or FTD Sending only florists to terminate any usage which is unauthorized or to which it objects.

All fees are in U.S. dollars. All charges are exclusive of any taxes that may be applicable. All fees and charges will be charged to Licensee's Clearinghouse Account and will be payable in accordance with FTD's Clearinghouse Rules.