Partner Program Agreement
This PARTNER PROGRAM AGREEMENT (this "Agreement") is made and entered into as of the date set forth in the Addendum (the "Addendum") between the parties of even date therewith and incorporated herein (the "Effective Date") by and between Stems and More LLC, a Wyoming limited liability company d/b/a @flowers ("Company"), and the Partner set forth in the Addendum ("Partner"), with reference to the following mutual understandings:
Recitals
A. Partner operates one or more retail or wholesale flower shops at the address(es) set forth in the Addendum (each, a "Partner Location"), and is the seller of floral arrangements, plants, and related products (the "Partner Products");
B. Company is a marketing and lead generation company that operates virtual storefronts under one or more brands (the "Company Brands") on third-party online ordering and delivery platforms (the "Delivery Platforms", including without limitation DoorDash and Uber Eats), and provides related marketing, lead generation, technology, virtual storefront operation, payment intermediary, and operational support services (collectively, the "Services") to floral retailers and other merchants;
C. Partner desires to engage Company to provide the Services in order to generate orders for the Partner Products through the Delivery Platforms, on the terms and conditions set forth herein and in the Addendum (the "Program");
D. By executing the Addendum, the Parties agree to be bound by the terms and conditions set forth herein, as more specifically described in the Addendum.
NOW, THEREFORE, for the mutual promises, representations, warranties, and other good and valuable consideration set forth herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions
In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
"Additional Fees" means any additional fees which Company may implement from time to time upon written notice to Partner, including but not limited to upfront fees, annual fees, retention fees, promotional fees, or other fees collected by Company to cover (i) costs of operating the Program, including Delivery Platform fees, commissions, or related charges collected by the Delivery Platforms, (ii) any costs associated with promoting the Company Brands or Partner Products on the Delivery Platforms, and (iii) any other costs reasonably incurred by Company in connection with the Services.
"Applicable Law" means any applicable federal, state, local, or other law, rule, regulation, ordinance, or similar legal requirement, including, without limitation, all applicable health, safety, consumer protection, employment, labor, tax, and privacy laws.
"Collected Revenue" means the gross amount collected by Company, Partner, or the Delivery Platforms from customers for the purchase of Partner Products through the Program, excluding delivery fees, tips, and any sales, use, or similar taxes remitted to taxing authorities.
"Confidential Information" means any and all technical and non-technical information disclosed by Company or its affiliates to Partner, or otherwise acquired by Partner in connection with this Agreement, including, without limitation: (a) the terms and conditions of this Agreement; (b) trade secrets; (c) business or operational information, ideas, techniques, business methods, business plans, know-how, processes, procedures, software programs, customer lists, marketing plans, vendor information, and business relationships; and (d) all other information that Partner knew or should have reasonably known under the circumstances was confidential.
"Delivery Platform" means any native or third-party online ordering or delivery platform (including but not limited to DoorDash and Uber Eats), whether accessed via website, mobile web, or mobile application, through which Company operates virtual storefronts under the Company Brands.
"Gross Sales" means the customer-facing gross sales proceeds attributable to Partner Products sold through virtual storefronts operated by Company under the Company Brands during the applicable measurement period, before any deduction for platform fees, taxes, refunds, or other amounts.
"Intellectual Property" means all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements, rights of authorship and attribution, trademarks, service marks, trade names, trade dress, copyrights, patents, patent applications, goodwill, and all other exclusive or non-exclusive proprietary rights, whether registered or unregistered.
"Partner Assets" means (a) Partner's Intellectual Property, (b) Partner's name, description, and business information, (c) Partner's photos or other images of Partner Products, and (d) any other information or materials provided by Partner to Company in connection with the Program.
"Partner Payment" has the meaning set forth in Section 5.2.
"Partner Products" means the floral arrangements, bouquets, plants, add-on items, and related products offered for sale by Partner from time to time that are fulfilled by Partner through virtual storefronts operated by Company under the Company Brands.
"Personal Information and Data" means any information or data obtained from or provided by Partner or customers pursuant to this Agreement that (i) identifies or can be used to identify an individual (including names, telephone numbers, addresses, signatures, email addresses, and other unique identifiers), or (ii) can reasonably be used to authenticate an individual or is otherwise considered "personal data" or "personal information" under Applicable Law.
"Program Fee" means the marketing and lead generation services fee payable by Partner to Company for the Services, equal to (a) the percentage identified in the Addendum, multiplied by (b) the Gross Sales achieved during the applicable measurement period, payable in accordance with Section 5.
"Protected Territory" means a one hundred (100) foot radius from the Partner Location, unless a different geographic area is expressly set forth in the Addendum. The Parties acknowledge that the default Protected Territory is intentionally narrow and that broader geographic exclusivity, if any, is granted only when expressly set forth in the Addendum.
"Refunds" means refunds, credits, chargebacks, penalty charges, or any retrieval costs incurred by Company or Partner in connection with an order issue (including, without limitation, order delay, order error, or Partner Product quality complaint), excluding any issue caused solely by Company's gross negligence or willful misconduct.
"Sales Platform" means the point-of-sale, order receipt, and payment processing infrastructure designated by Company from time to time, which may include a tablet, printer, software application, and integration with Stripe (as defined below) or other third-party service providers.
"Startup Fee" means a one-time fee payable by Partner to Company upon execution of the Addendum in the amount set forth in the Addendum, if any.
"Stripe" means Stripe, Inc. and its affiliates, the third-party payment processor and facilitator utilized by Company in connection with the Program.
"Technology Fee" means the weekly software and technology fee set forth in the Addendum, which may be adjusted by Company from time to time upon written notice to Partner.
"Term" has the meaning set forth in Section 5.
2. Program; Nature of Services
Subject at all times to the License granted herein and the other restrictions and limitations contained in this Agreement, Company shall provide the Services to Partner by operating one or more virtual storefronts under the Company Brands on the Delivery Platforms in order to generate orders for the Partner Products. Partner is and shall remain at all times the seller of the Partner Products for all legal, tax, regulatory, and commercial purposes, and is solely responsible for the preparation, quality, packaging, fulfillment, customer service, warranty, and any returns or exchanges relating to the Partner Products. As between the Parties, Company is not a seller, reseller, distributor, or merchant of record of the Partner Products; Company's role is limited to providing the marketing, lead generation, and related Services described herein. Partner shall act as an independent business and not as an employee, agent, partner, joint venturer, or franchisee of Company. Partner acknowledges that Company contracts with the Delivery Platforms in its own name as the storefront account holder for the Company Brands, and that this arrangement is a commercial convenience to enable Company to provide the Services efficiently to multiple participating florists; nothing in such Delivery Platform-facing arrangement alters the fact that, as between the Parties, Partner is the seller of the Partner Products.
3. Licensed Rights; Use of Marks; Quality Control
3.1 License
Subject to the terms and conditions of this Agreement, and to all restrictions and limitations herein, Company hereby grants to Partner a limited, non-exclusive, non-transferable, revocable license, during the Term and solely within the Protected Territory, to utilize the Company Intellectual Property solely to the extent necessary to prepare and fulfill orders of Partner Products placed through Company-operated virtual storefronts under the Company Brands. Partner shall not utilize the Company Intellectual Property in any manner not specifically authorized under this Agreement, and all rights not specifically granted herein are expressly reserved by Company.
3.2 Use of Marks
All uses by Partner of the Company Intellectual Property, including the trademarks, service marks, trade names, and logos of Company (collectively, the "Marks"), shall be in strict compliance with all rules and guidelines established by Company from time to time and in a manner designed to enhance the goodwill associated with the Marks. Partner shall only utilize the Marks in the exact form and manner prescribed by Company and shall not alter, modify, or combine the Marks with any other marks without Company's prior written consent. All goodwill arising from Partner's use of the Marks shall inure solely to the benefit of Company.
3.3 Quality Control
Partner shall prepare and fulfill all Partner Products in a professional and workmanlike manner consistent with Partner's normal business practices and in accordance with any reasonable quality standards communicated by Company from time to time. Partner shall maintain all licenses, permits, and approvals required by Applicable Law to operate its business and to prepare and sell the Partner Products. Company reserves the right to remove any Partner Location from the Program upon written notice if Company determines, in its reasonable discretion, that Partner is failing to meet the quality, service, or operational standards of the Program.
3.4 Partner Assets License
During the Term and thereafter, Partner grants to Company an irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, transferable right and license to use, reproduce, display, publish, and otherwise exploit the Partner Assets in connection with the operation, marketing, and promotion of the Program, the Company Brands, and Company's business generally, including on the Delivery Platforms, on Company websites, on social media, and in any marketing or promotional materials. This license shall survive any termination or expiration of this Agreement with respect to Partner Assets used prior to termination.
3.5 Protected Territory
During the Term, Company will not enter into a Partner Program Agreement with another floral business that is physically located within the Protected Territory of Partner; provided, however, that Partner understands and agrees that (i) nothing herein shall restrict Company from contracting with other partners to offer other products or brands within the Protected Territory, (ii) the Protected Territory relates only to the physical location boundary within which Company will not onboard another participating partner for the @flowers brand, and does not address delivery radiuses or service areas that any particular Delivery Platform may implement from time to time, and (iii) delivery radiuses are outside of Company's control and may overlap with one or more Protected Territories.
3.6 Sales Platform
In order to receive and manage orders placed through the Delivery Platforms, Partner shall utilize the Sales Platform designated by Company. Company may, in its sole discretion, provide certain Sales Platform hardware (such as a tablet or printer) to Partner at no initial cost; however, Partner shall be responsible for the proper use, maintenance, and upkeep of all such hardware, and Company reserves the right to charge Partner for any replacement, repair, or return of such hardware as set forth in Section 6.8. Partner agrees to comply with all terms of service of any third-party software or hardware service providers utilized as part of the Sales Platform, and to execute any consents, authorizations, or data waivers reasonably required by such third-party providers as a condition to Partner's use of the Sales Platform.
4. Term; Termination
The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year, unless earlier terminated in accordance with this Agreement (the "Initial Term"). Unless earlier terminated by either party as set forth herein, the Initial Term shall automatically renew for successive one (1) year renewal terms (each a "Renewal Term", and together with the Initial Term, the "Term"), unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for convenience upon fourteen (14) days' prior written notice to the other party (email sufficient). Either party may terminate this Agreement immediately in the event of a material breach by the other party that remains uncured after ten (10) business days' written notice of such breach. Upon any termination of this Agreement, (a) all licenses granted hereunder shall immediately terminate (except as expressly provided in Section 3.4), (b) Partner shall immediately cease all use of the Marks and Company Intellectual Property, (c) Partner shall return or destroy all Confidential Information in its possession, and (d) each party shall pay any amounts accrued but unpaid as of the date of termination. Sections 1, 3.4, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 16 through 24 shall survive any termination or expiration of this Agreement.
5. Payments; Fees; Stripe Connect
5.1 Fees
As consideration for the license and other rights granted hereunder, Partner shall pay to Company the Startup Fee (if any), the Program Fee, the Technology Fee, and any Additional Fees, all as set forth in the Addendum or as otherwise communicated by Company to Partner in writing from time to time (collectively, the "Company Fees").
5.2 Flow of Funds; Limited Payment Intermediary
Partner acknowledges that Company operates the Company Brand virtual storefronts on the Delivery Platforms in its own name as the storefront account holder. The Delivery Platforms remit gross sales proceeds (net of any platform fees, marketplace facilitator taxes, and other deductions taken by the Delivery Platforms) to Company. Company receives such proceeds solely as a limited payment intermediary on behalf of Partner for the narrow purpose of facilitating the settlement of amounts owed between the Parties under this Agreement, and not as a money transmitter, payment processor, or general agent of Partner. On a regular basis (and no less frequently than weekly during periods of active Program participation), Company shall calculate the amount payable to Partner for Partner Products sold through the Program during the applicable measurement period, equal to (a) the gross customer-facing sales proceeds attributable to such Partner Products as collected by Company from the Delivery Platforms, less (b) the Program Fee, less (c) any Refunds, less (d) any other Company Fees or amounts properly deducted under this Agreement (the resulting amount, the "Partner Payment"). Company shall remit the Partner Payment to Partner via Stripe Connect Express. As a condition to participation in the Program, Partner shall onboard to and maintain in good standing a Stripe Connect Express connected account designated by Company, and shall complete all know-your-customer, anti-money-laundering, tax identification, and other onboarding requirements imposed by Stripe. Partner acknowledges and agrees that (i) Company is providing marketing and lead generation Services to Partner, and Company's receipt and brief holding of payment proceeds in connection with the Program is incidental to such Services and is undertaken solely as a limited payment intermediary on behalf of Partner; (ii) Stripe is the third-party payment service provider for outbound Partner Payments from Company to Partner, and Partner agrees to be bound by the Stripe Services Agreement and the Stripe Connected Account Agreement available at stripe.com/legal; (iii) Company shall have no obligation to remit any Partner Payment in respect of orders for which Company has not received the corresponding payment from the applicable Delivery Platform; and (iv) any failure by Partner to onboard to or maintain its Stripe Connect Express connected account in good standing shall be a material breach of this Agreement and may result in the suspension of Partner Payments until such failure is cured.
5.3 Right to Debit and Offset
Without prejudice to or limitation of Company's other rights and remedies, Partner authorizes Company, via the Stripe Connect integration or via direct ACH debit of Partner's designated bank account, to (a) collect the Company Fees, (b) debit any amounts owed by Partner to Company that are not otherwise recouped through the Stripe Connect revenue split, including Refunds, Additional Fees, hardware charges, and Technology Fees, and (c) offset any such amounts against any amounts that may be owed by Company to Partner. Partner shall maintain sufficient funds in its designated account to satisfy all such debits and shall be responsible for any NSF, return, or reversal fees charged by Stripe or Partner's bank.
5.4 Sales Tax; Other Taxes
Partner is the seller of record with respect to the sale of all Partner Products and is solely responsible for the collection, reporting, and remittance of all applicable sales, use, gross receipts, value-added, and similar transaction taxes assessed in connection with the sale of Partner Products. The Parties acknowledge that (a) where the Delivery Platforms collect and remit such taxes as marketplace facilitators under Applicable Law, no further action is required by either Party with respect to such taxes; and (b) where such taxes are not collected and remitted by a Delivery Platform under marketplace facilitator law, Company shall pass through any sales tax amounts received from the Delivery Platforms to Partner as a component of the Partner Payment, and Partner shall be solely responsible for the timely collection, reporting, and remittance of all such taxes to the appropriate taxing authorities. Partner shall be responsible for all income, franchise, gross receipts, business license, and similar taxes assessed against Partner in respect of its business and the Partner Payments received from Company. Company shall issue Partner an IRS Form 1099 (or applicable equivalent) for Partner Payments made during a calendar year as required by Applicable Law. Each Party shall be responsible for its own employment-related taxes and withholdings with respect to its own personnel. Partner shall indemnify, defend, and hold Company harmless from and against any and all Losses arising from Partner's failure to timely collect, report, or remit any taxes for which Partner is responsible under this Section 5.4. Partner shall reasonably cooperate with Company in connection with any tax audit, inquiry, or compliance matter relating to the Program. Company shall have the right to immediately suspend or terminate this Agreement in the event Partner fails (or there is a credible allegation that Partner failed) to pay any taxes for which Partner is responsible hereunder.
5.5 Refunds
Partner shall be solely responsible for any and all Refunds, and Company shall be entitled to deduct the amount of such Refunds from amounts otherwise payable to Partner (or to debit the same from Partner's connected account) in accordance with Section 5.3.
5.6 Audit
In the event of a good-faith concern regarding Partner's performance hereunder, and for up to six (6) months from the date Company provides written notice to Partner of such concern, Company shall have the right, upon fourteen (14) days' written notice, to inspect Partner's books and records solely as they pertain to Partner Products sold through the Program, including the calculation of Company Fees. The cost of such audit shall be borne by Company, unless the audit reveals any underpayments by Partner to Company in excess of five percent (5%) of the actual amounts due, in which event Partner shall pay the reasonable documented costs of such audit and shall promptly pay any underpaid amounts.
5.7 Operating Expenses
For the avoidance of doubt, Company shall not be liable for any costs or expenses of Partner in connection with Partner's performance under this Agreement, including, without limitation, legal fees; wages, salary, or benefits for Partner's employees; insurance premiums; accounting fees; lease expenses; equipment costs; flower, vase, and supply costs; delivery driver costs; and utilities.
5.8 Sales Platform Fees Upon Termination
Upon termination of this Agreement by either party for any reason, Company may charge a reasonable restocking and return-processing fee for any Sales Platform hardware provided to Partner by Company, as communicated by Company in writing from time to time. Upon termination, Partner shall promptly return all Sales Platform hardware in good working order, reasonable wear and tear excepted. Partner shall be responsible for any damage beyond reasonable wear and tear. If Partner fails to return such hardware within fourteen (14) days of termination, Company may charge Partner the full replacement cost of such hardware.
6. Representations and Warranties by Partner
Partner represents and warrants to Company that: (a) it has the full right, power, and authority to enter into this Agreement, to grant all licenses and other rights granted hereunder, and to perform its obligations under this Agreement; (b) each Partner Product shall be prepared with high-quality materials and in a professional and workmanlike manner consistent with industry standards; (c) Partner's business, the Partner Products, and the Partner Assets comply and will continue to comply with all Applicable Laws, including all consumer protection, advertising, tax, privacy, data protection, and employment laws; (d) the Partner Assets do not and will not infringe, misappropriate, or violate any patent, trademark, copyright, publicity right, or other intellectual property or proprietary right of any third party; (e) entering into and performing under this Agreement will not cause Partner to violate any law, regulation, third-party right, or contract by which it is bound; (f) Partner holds all licenses, permits, and approvals required to operate its floral business; and (g) Partner will act in good faith in its dealings with customers of the Company Brands.
7. Indemnification
Partner shall, at its sole expense, indemnify, defend, and hold harmless Company and its parent, affiliates, subsidiaries, and their respective employees, agents, managers, members, officers, directors, and representatives (collectively, "Indemnitees") from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) (collectively, "Losses") incurred in connection with any judicial or non-judicial claim, action, demand, suit, or proceeding (collectively, "Claims") brought against an Indemnitee to the extent based upon or arising out of: (a) Partner's business, the Partner Products, or the Partner Assets (including, without limitation, claims relating to product quality, allergic reaction, injury, taxes owed, or consumer protection); (b) any act, omission, negligence, or willful misconduct of Partner or its employees, agents, or contractors; (c) any breach by Partner of this Agreement or any representation or warranty made herein; (d) any violation of Applicable Law by Partner; or (e) any third-party claim that the Partner Assets infringe or misappropriate any intellectual property or proprietary right. Partner may not settle or otherwise dispose of any Claim against an Indemnitee without Company's prior written approval, which shall not be unreasonably withheld.
8. Insurance
Partner, at its sole expense, shall maintain throughout the Term, and for six (6) months thereafter, commercial general liability insurance in the amount of at least $1,000,000 per occurrence and $2,000,000 in the annual aggregate, and such other insurance as may be reasonably required by Company or by Applicable Law from time to time. All insurance maintained by Partner shall (a) name Company as an additional insured, (b) be primary insurance with respect to the matters covered hereunder, and (c) be issued by a carrier reasonably satisfactory to Company. Partner shall, promptly upon request by Company, furnish Company with a certificate of insurance evidencing such coverage.
9. Confidentiality
Partner acknowledges that it may receive Confidential Information prior to or after the Effective Date. Partner agrees that it will hold all Confidential Information in strict confidence and not disclose it to any third party, and will use such Confidential Information solely in connection with its performance of this Agreement. Partner shall protect the confidentiality of the Confidential Information with the same degree of care used to protect its own confidential information, but in no event less than a reasonable degree of care. Partner shall limit access to the Confidential Information to its employees, lawyers, and accountants having a legitimate need to know, and who are bound by confidentiality obligations at least as protective as those set forth herein. Partner may disclose Confidential Information to the extent required by Applicable Law or legal process, provided that, to the extent legally permitted, Partner gives Company prompt written notice and reasonably cooperates with Company's efforts to limit or contest such disclosure. The obligations of this Section 9 shall survive the expiration or termination of this Agreement.
10. No Franchise Intended
The Parties acknowledge that certain state and federal laws and regulations govern the establishment of franchises. The rights granted to Partner hereunder have been drawn without any intent that the grant of such rights constitutes a franchise under Wyoming, federal, or other applicable franchise law. It is the intent of this Agreement merely to grant Partner a limited, non-exclusive right to fulfill orders placed through virtual storefronts operated by Company under the Company Brands, with Partner at all times operating as an independent business solely owned and operated by Partner. Partner acknowledges that Company has made no representations or warranties that the rights granted herein shall be profitable. If any governmental agency or court determines that this Agreement constitutes a franchise, either party may terminate this Agreement upon written notice to the other, and each party waives and releases any and all claims against the other arising out of any such non-compliance.
11. Limitation of Liability
COMPANY WILL NOT BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE FORM OF ACTION UPON WHICH THEY ARE BASED, INCLUDING WITHOUT LIMITATION CLAIMS FOR LOSS OF GOODWILL, LOST PROFITS, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL, AGGREGATE LIABILITY OF COMPANY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) THE COMPANY FEES RETAINED BY COMPANY IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE HUNDRED DOLLARS ($100).
12. Intellectual Property
12.1 Company IP
Partner acknowledges that, as between Partner and Company, Company owns all right, title, and interest, including all Intellectual Property, in and to the Confidential Information, the Company Brands, the virtual storefronts, the Services, the Sales Platform integrations, and any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Partner or any third party relating to the foregoing (collectively, the "Company IP"). Partner hereby assigns, and agrees to assign, any right, title, or interest in or to the Company IP to Company.
12.2 Partner IP License
The grant of rights from Partner to Company with respect to the Partner Assets is set forth in Section 3.4 and is incorporated herein by reference.
13. Use of Personal Information and Data
Company has the right to use Personal Information and Data (either directly or through third parties, Delivery Platforms, Stripe, or affiliated entities) in connection with the operation of the Program and Company's business, including in connection with marketing, advertising, analytics, and service improvement, in each case in accordance with Company's privacy policy available at https://atflowers.com/privacy. In the event of a sale, transfer, merger, reorganization, dissolution, or similar transaction, Company may transfer such Personal Information and Data to one or more third parties as part of such transaction. Company may disclose Personal Information and Data as required by law or pursuant to legal process, including by law enforcement agencies or in response to valid requests from governmental agencies.
14. Exclusivity
During the Term, Partner shall not, directly or indirectly, within the Protected Territory, enter into any agreement, license, or other affiliation with any Competing Business with respect to the operation of a virtual floral storefront on any Delivery Platform. For purposes of this Agreement, a "Competing Business" means any person or business that develops, licenses, or otherwise commercializes virtual floral brands or virtual floral storefronts for online sale through Delivery Platforms. For the avoidance of doubt, nothing herein shall restrict Partner from operating Partner's own branded storefronts on the Delivery Platforms under Partner's own name and marks.
15. Governing Law; Dispute Resolution
15.1 Governing Law
This Agreement shall be deemed to have been made and entered into in the State of Wyoming and shall be interpreted, construed, and governed by the laws of the State of Wyoming, without regard to its conflict-of-laws principles.
15.2 Binding Arbitration
Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration administered by the American Arbitration Association ("AAA") in Cheyenne, Wyoming, before one arbitrator, in accordance with the AAA Commercial Arbitration Rules then in effect. The language of the arbitration shall be English. Judgment on the arbitration award may be entered in any court having jurisdiction. The prevailing party in any such arbitration shall be entitled to recover its reasonable attorneys' fees and costs.
15.3 Class Action Waiver
THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. NEITHER PARTY MAY ACT AS A CLASS REPRESENTATIVE OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL.
15.4 Injunctive Relief
Notwithstanding the foregoing, either party may seek temporary or preliminary injunctive relief from any court of competent jurisdiction to prevent or restrain any actual or threatened breach of confidentiality or infringement of intellectual property rights, without waiving the agreement to arbitrate set forth in this Section 15.
16. Notices
Any notice or other communication permitted or required under this Agreement shall be given in writing and shall be delivered (a) in person, (b) by overnight commercial delivery service, or (c) by email. Notices to Company shall be sent to [email protected] and to the address set forth in the Addendum. Notices to Partner shall be sent to the email address and/or physical address set forth in the Addendum. Each such notice shall be effective (i) upon actual receipt if delivered in person or by overnight service, or (ii) upon sending if delivered by email (provided no bounce-back or delivery failure is received).
17. Assignment
Partner shall not, by operation of law or otherwise, assign, delegate, mortgage, encumber, or convey this Agreement or any interest in or under it without Company's prior written consent. Any transfer of a controlling interest in Partner shall be deemed an assignment requiring such consent. Company may freely assign, transfer, sublicense, novate, or delegate this Agreement, in whole or in part, to any affiliate, successor entity, acquirer, or other third party, with or without notice to Partner and without Partner's consent, including in connection with any sale, merger, reorganization, restructuring, change of control, or transfer of all or substantially all of Company's assets or the @flowers business line. Upon any such assignment, the assignee shall succeed to all of Company's rights and obligations hereunder, and Company shall be released from any further obligations under this Agreement. Partner expressly waives any right to receive notice of, or to object to, any such assignment by Company.
18. Integration
This Agreement, together with the Addendum, constitutes and contains the entire fully-integrated agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous oral or written agreements. Each Party acknowledges and agrees that the other has not made any representations, warranties, or agreements of any kind, except as expressly set forth herein. This Agreement will be binding upon each Party and its successors and permitted assigns.
19. Relationship of the Parties
Nothing herein shall be deemed or construed to create any partnership, joint venture, franchise, agency, fiduciary, or employment relationship between the Parties. Each Party is an independent contractor. Neither Party shall have the right or authority to create or assume any obligation of any kind, express or implied, for or on behalf of the other Party, and neither Party shall hold itself out as the agent or legal representative of the other Party for any purpose.
20. Modification
Company may modify this Agreement from time to time by posting a revised version at https://atflowers.com/partner-terms and providing written notice (email sufficient) to Partner. Any such modification shall become effective thirty (30) days after such notice. Partner's continued participation in the Program following the effective date of any such modification constitutes Partner's acceptance of the modified terms. If Partner does not agree to a modification, Partner's sole remedy is to terminate this Agreement in accordance with Section 4 prior to the effective date of such modification.
21. Waiver
No waiver of any default or breach of this Agreement by either Party shall be deemed a continuing waiver or a waiver of any other breach or default.
22. Severability
If any provision or portion of this Agreement is adjudged by a court, arbitrator, or other adjudicative body to be unenforceable, invalid, void, or voidable, such adjudication shall not affect any other provision or portion of this Agreement, and the affected provision shall be modified or curtailed only to the extent necessary to bring this Agreement into compliance with Applicable Law.
23. Headings
The section headings used in this Agreement are for convenience only and shall have no legal effect or significance.
24. Counterparts; Electronic Signature
The Addendum may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. The Parties agree that electronic signatures, including via DocuSign or similar services, shall have the same legal effect as original handwritten signatures.