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ASP SUBSCRIPTION AGREEMENT
This Subscription Agreement for Application Services (this “Agreement”) is made between Online Flower Search, LLC (the “Application Services Provider” or “ASP”) and the business entity or organization identified in the Purchase Order (“Subscriber”). By clicking “Agree” below you agree to be bound by the terms and conditions of this Agreement.
WHEREAS, ASP has developed and authored certain software which permits a user to search ASP’s proprietary database of flower images and information;
WHEREAS ASP distributes its software application as an Internet-based application, and sells subscriptions to the application to subscribers on an annual basis;
WHEREAS this Subscriber wishes to access and use certain ASP’s software application;
NOW, THEREFORE, ASP and Subscriber agree as follows:
1.1 Users are the end users who access the Software via the Subscriber Site.
1.2 Software: ASP’s proprietary software application and database which resides on ASP’s host computer. The Software provides access to a searchable database of flowers, allows Users to save flower selections and arrangements in Albums, and allows Users to share images of their flower selections and arrangements with others via social media such as Facebook.
1.3 Host Computer System: Computer system containing and running the Software that is accessible via the internet, maintained by or on behalf of ASP.
1.4 Client Computer: Internet connected computer allowing Subscriber to access and utilize the Software and its functionality.
1.5 Services: ASP will host a private-labeled version of the Software on the Host Computer System accessible via the internet through a unique Uniform Resource Locator (URL). Any additional Services may be included on the Purchase Order.
1.6 Subscriptions: This Agreement is for the number of subscriptions set forth in the Purchase Order.
1.7 Subscription Fee is the fee set forth in the Purchase Order.
1.8 ASP Data: The images and information contained in the database that is accessible via the Software.
1.9 Subscriber Trademarks are any Subscriber trademarks and service marks that will be presented along with the Software on the Subscriber Site.
1.10 Subscriber URL will be the Internet Uniform Resource Locator at which User’s can access the Subscriber Site pursuant to a Standard Services Agreement.
1.11 Subscriber Site will be a version of the Software residing on the Host Computer System, accessible via the Subscriber URL, that will be skinned with a template to look like Subscriber’s website and will display Subscriber’s Trademarks.
1.12 Subscriber Content means any content uploaded to the Subscriber Site by the Subscriber, including photographs, text, images, or other works. Subscriber Content does not include any ASP Data.
1.13 User Contentmeans any data, including images, uploaded to the Software by a User. Subscriber Content does not include any ASP Data.
1.14 Albums are data repositories stored on the Host Computer System that collect information about a User’s preferred flower choices, including images of the flowers, and other ASP Data about the flowers. ASP will provide hyperlinks to the URL for Albums. Users may then share their Albums with others, including through social media platforms such as Facebook.
1.15 ASP Partners means third parties with whom ASP has a business relationship.
Cut Flowers Wholesale Inc. and Aribaflor LLC are ASP Partner.
1.16 ASP Affiliates means third parties with whom ASP has a relationship, including but not limited to: wholesalers, state florist associations, organizations and speakers.
1.17 Telephone Center and Order Gatherer mean a company or individual that is primarily engaged in taking orders for flowers and placing those orders with local Florists.
2 Grant of License
2.1 ASP grants to Subscriber a limited license to access and use the Software and ASP Data on the terms and conditions set forth below.
2.2 ASP will provide all equipment, software and services necessary for operation and maintenance of its Host Computer System. ASP reserves the right to change the configuration of its systems and change or delete equipment or software at any time.
2.3 Subscriber is responsible for providing the Client Computer, software and internet access necessary for accessing the Software on the Host Computer System.
3 ASP Services.
3.1 ASP will install, operate and maintain the Software on the Host Computer System, and will create and host the Subscriber Site pursuant to the terms and conditions of this Agreement.
3.2 ASP will establish the unique Subscriber URL.
4 Scope of Use.
4.1 Subscriber may make the Software available only to its Users. Subscriber may not use the Software to market or sell flowers at wholesale or to any non-retail purchasers.
4.2 Subscriber may not copy, edit, download, or distribute any ASP Data except as provided in this Agreement.
4.3 Subscriber may provide hyperlinks to User Albums to its Users, which Users may publish or distribute to others, allowing third parties to access and view the ASP Data in the User Album.
4.4 Subscriber may not embed the Software in a password protected area and must be publicly visible at all times. Failure to adhere to this will result in immediate termination of this Agreement.
5 Subscriber and User Content
5.1 Subscriber will retain ownership of all intellectual property rights to Subscriber Content.
5.2 Users will retain ownership of all intellectual property rights to User Data.
5.3 Subscriber grants to ASP a royalty free license to display the Subscriber Content on the Subscriber’s Site for so long as this Agreement is effective.
5.4 ASP may remove any Subscriber or User Content for any reason without prior notice to Subscriber.
5.5 If an account remains inactive for 3 months, ASP may remove any and all Subscriber or User Content without prior notice to Subscriber or User.
6.1 Subscriber may suggest that ASP make changes or corrections to the Software or the ASP Data. ASP has the sole discretion to make any such changes or corrections. ASP will own all rights to any changes or corrections that it makes at the suggestion of Subscriber.
7.1 Access to The Software is available only to the maximum number of designated and named Subscriptions purchased. Should additional Subscriptions be required, You must notify ASP, complete registrations for such additional Subscriber(s), and arrange for the additional payment of fees for the additional Subscription(s).
7.2 Except as expressly permitted above, Subscriber may not sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Services or Software to any third party.
7.3 Subscriber may not share any usernames or passwords with any persons not authorized to access the Software.
7.4 Subscriber may not extract ASP Data from the Software using any automated processes, including without limitation through the use of “spiders,” “bots”, “scrapers”, or “scripts.”
7.5 Subscriber may not copy, publicly display, or create derivative works of any ASP Data or images in the Software except as expressly provided in this Agreement.
7.6 Subscriber may not reverse engineer, disassemble, decompile, modify, or alter the Software, or any copy thereof, in whole or in part.
7.7 Subscriber acknowledges that the ASP Data comprises: (i) works of original authorship, including original photographs and compiled information that ASP has selected and arranged; (ii) trade secret and other confidential information, including information that derives value or potential value from not being readily known or available; and (iii) information that has been created, developed and maintained by ASP at great expense. You acknowledge that if you misappropriate or use the ASP Data in a manner not authorized by this Agreement, you will unfairly and irreparably harm ASP or reduce ASP’s incentive to create, develop and maintain the ASP Data. You will not commit or permit any act or omission that would threaten ASP’s proprietary and intellectual property rights in the ASP Data or that would cause the ASP Data to become generally known.
7.8 If Subscriber is merged, consolidated or sold, or if Subscriber sells or transfers all or substantially all of its assets relating to the use of the Software, Subscriber shall have the right to transfer its rights and obligations under this Agreement to the surviving or buying entity only on prior written consent of ASP. Subscriber will not be relieved of its obligations in this Agreement, and Subscriber’s successor must assume all of the terms and conditions of this Agreement in writing.
7.9 Subscriber will not, nor will it allow any of its Users to: defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content, topic, name, material or information; upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless the Subscriber or User owns or controls the rights thereto or has received all necessary consents; upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; advertise or offer to sell or buy any goods or services for any business purpose; conduct or forward surveys, contests, pyramid schemes or chain letters; download any file posted by another User that the Subscriber or User knows, or reasonably should know, cannot be legally distributed in such manner; falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded; restrict or inhibit any other User from using and enjoying the Software; violate any applicable code of conduct or other guidelines; harvest or otherwise collect information about others, including e-mail addresses, without their consent; violate any applicable laws or regulations.
8.1 Subscriber is prohibited from copying, distributing, or making derivative works of the Software or the ASP Data.
9.1 The initial term of this Agreement shall be for the period set forth in the Purchase Order. This Agreement will automatically renew for subsequent twelve (12) month terms unless otherwise terminated pursuant to this Agreement.
10.1 Either Party may terminate this Agreement without cause on thirty days written notice to the other.
10.2 ASP may terminate this Agreement immediately, without prior notice to Subscriber, if Subscriber breaches any of its obligations, restrictions, representations or warranties; fails to pay any Subscription Fees; or fails to pay any ASP Partners when due.
10.3 Upon termination or expiration of this Agreement, Subscriber shall immediately cease use of the Software.
10.4 ASP will disable all access to the Subscriber Site immediately upon expiration or termination of this Agreement.
10.5 For Premium Subscribers, ASP will disable the operability of the Software immediately upon expiration or termination of this Agreement.
10.6 Upon termination of this Agreement, Subscriber’s obligation to pay any future subscription fees is terminated. However, Subscriber will not be entitled to a refund of any subscription fees already paid to ASP.
10.7 ASP will delete any User Albums within three months of the expiration or termination of this Agreement without notice to Subscriber.
10.8 ASP may re-use the Subscriber URL for any other purpose, including for other Subscribers, three months after termination or expiration of this Agreement.
11.1 Subscriber acknowledges that any violation or threatened violation of any of Subscriber’s obligations, representations or warranties will cause immediately and irreparable injury to ASP for which there is no adequate remedy at law. In the event of such violation, threatened violation or breach, Company acknowledges that ASP is entitled to an immediate injunction, in addition to all other rights and remedies available to it, including, without limitation, recovery of damages.
12.1 Subscriber will pay an annual Subscription Fee per Subscription, payable as set forth in the Purchase Order. Subscriber authorizes ASP to charge Subscriber’s credit card for the initial Subscription Fee and any subsequent Subscription Fees. ASP may change its prices following the initial term, provided that Subscriber is provided at least thirty days advance notice of the change.
13 Subscriber Representations and Warranties: Subscriber represents and warrants that:
13.1 Subscriber sells its goods and/or services primarily to retail consumers.
13.2 Subscriber is not a Telephone Center or Order Gatherer.
13.3 Subscriber owns the Subscriber Trademarks or otherwise has the right to use and display the Subscriber Trademarks on the Subscriber Site.
13.4 Subscriber Trademarks do not infringe the intellectual property rights of any third party.
13.5 Subscriber has the right to upload, copy, publicly display and distribute all Subscriber Content.
13.6 Subscriber Content does not infringe the intellectual property rights or other rights of any third party.
13.7 All information that Subscriber has provided to ASP is complete, accurate and truthful.
14 ASP Representations and Warranties.
14.1 Software is warranted to be in substantial conformity with ASP’s standard documented technical specifications during the term of this Agreement.
14.2 ASP does not warrant that operation of the Software shall be uninterrupted or error free or that it shall meet Subscriber’s needs. Subscriber is solely responsible for the accuracy and integrity of its own instrumentation, data, reports, documentation and security.
14.3 Subscriber acknowledges that the proper functioning of the Software may rely on the availability of third-party computers, web sites, or information. Subscriber acknowledges that ASP is not responsible in the event any such third-party computer, web site, or information is unavailable for any reason whatsoever, and that such unavailability does not constitute a breach of this agreement by ASP.
14.4 The exclusive remedy of Subscriber, and ASP’s sole obligation, in the event of any warranty claim or any other contract deficiency shall be for ASP to repair or replace the defect.
14.5 ASP does not represent or warrant that the images or descriptions of flowers in the Software are accurate or will conform to the Subscriber’s or User’s expectations, including but not limited to color, size, breeder information or availability information.
14.6 ASP does not represent or warrant that flowers displayed in the Software will be available at any time. ASP is not responsible for the unavailability of any particular flowers displayed in the Software.
14.7 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY ASP WITH RESPECT TO SOFTWARE, SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND ASP SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15 Limitation of Liability.
15.1 IN NO EVENT SHALL ASP BE LIABLE TO SUBSCRIBER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST SUBSCRIBER BY ANY OTHER PARTY, EVEN IF ASP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
15.2 IN NO EVENT SHALL ASP’S LIABILITY UNDER ANY CLAIM MADE BY SUBSCRIBER EXCEED THE TOTAL AMOUNT OF FEES PREVIOUSLY PAID BY SUBSCRIBER TO ASP RELATING TO THE AFFECTED SOFTWARE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
16.1 Subscriber agrees to indemnify ASP and defend and hold ASP harmless for any claims or causes of action asserted against ASP by any third party based on any Subscriber Content, or that is the result of Subscriber’s breach of any of its representations or warranties above. Subscriber will be responsible for reimbursing ASP its costs and attorney fees for any such claim or cause of action.
17.1 Force Majeure. Neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, electricity shortages, blackouts, or power failures, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
17.2 This Agreement and each Subscriber Order shall be governed by and construed and enforced in accordance with the laws of the State of Georgia, excluding its principles of conflicts of law. Subscriber consents to the jurisdiction of the applicable state and federal courts in Fulton County, Georgia for any legal action arising out of an alleged breach of this Agreement.
17.3 ASP may share Subscriber’s email address with ASP Partners.
17.4 This Agreement constitutes the entire agreement between the parties, and may not be amended except in writing and signed by both parties hereto.
17.5 ASP may transfer or assign its rights and obligations under this Agreement without prior notice to Subscriber.
17.6 ASP may amend this Agreement at any time, without notice to Subscriber. The most current version of this Agreement will be available at www.onlineflowersearch.com.
17.7 Subscriber must submit to a one-day mediation session in Atlanta, Georgia before filing any claim or suit against ASP for any breach of this Agreement.
Subscriber hereby accepts the foregoing terms and conditions of this Agreement.