FTD® MARKETPLACE

Terms of Use

 

Effective Date:     March 2018

Last Revised:        February 2018

 

THIS TERMS OF USE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT IMPACTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES.  IF YOU LIVE IN THE UNITED STATES, PLEASE READ IT CAREFULLY.

 

1.             General.  Thank you for visiting FTD MARKETPLACE.  Florists’ Transworld Delivery, Inc. (“FTD”) owns and operates this Website at www.ftdmarketplace.com (“Website”).  Your use of this Website and any of the information, content and services available through this Website, including without limitation, any purchase that you make on this Website, are subject to these terms and conditions (“Terms of Use”), the Privacy Statement and your FTD Membership Agreement.

 

These Terms of Use are current as of the Effective Date and was last revised as of the date set forth above.  We reserve the right to change these Terms of Use from time to time. Please consult this portion of the Website for important changes to the Terms of Use as FTD may, at any time, and without notice, revise these Terms of Use by updating this posting. 

 

Please read these Terms of Use carefully.  By accessing or using the Website, you are bound by these Terms of Use and any revisions; you should therefore periodically visit this page to review the current Terms of Use. Access or use of the Website following any change to the Terms of Use constitutes your agreement to those changes. If at any time you choose not to accept the terms of these Terms of Use, you should not access or use this Website.

 

FTD may, at its sole discretion, and at any time, discontinue this Website or any part thereof, with or without notice, or may prevent your use of this Website (and any of its content) with or without notice to you.  You agree that you do not have any rights in this Website and that FTD will have no liability to you if this Website is discontinued or your ability to access the Website or any content you may have posted on the Website is terminated.

 

2.            Pricing; Payment; Taxes.  Prices will be those in effect at the time of purchase and do not include freight, handling fees, and/or taxes.  Pricing is based upon product availability and subject to correction or change at any time without notice.  You are responsible for payment of all applicable taxes, or for providing a valid sales tax exemption certificate in the manner required by applicable laws, rules or regulations.  All products are subject to availability.  FTD reserves the right to accept or reject any order and to correct any errors, including without limitation, publishing, descriptive, typographical, or any other similar errors.  FTD further reserves the right to cancel any and all orders resulting from such errors, even if you have received an order confirmation from FTD.

 

You authorize FTD to charge purchases you make on the Website to your Clearinghouse Statement.  All payments must be made in U.S. dollars; provided, that Canadian Member Florists will be billed in Canadian dollars, calculated by multiplying the U.S. price by the exchange rate currently in effect as of the date on which such order is accepted by FTD, as determined by FTD in its sole discretion.  FTD determines the exchange rate based on the prior month’s average exchange rate and updates the exchange rate on or about the first business day of each month.  

 

3.            Order Fulfillment; Shipping and Delivery.  All orders are final and cannot be cancelled without FTD’s prior written acceptance of cancellation.   FTD charges the following shipping and handling charges on each order, which is applied at time of order: (i) for Continental U.S., 20% of the total value of each carton (including freight, handling fees and taxes), with a minimum shipping and handling charge of $7.99 per carton; and (ii) for Canada, 22% of the total value of each carton (including freight, handling fees and taxes), with a minimum shipping and handling charge of $9.99 per carton. Title and risk of loss pass to you upon tender of shipment to the carrier.  Please contact FTD Customer Service at: (800) 767-4000; Option #2 if you have any questions about an order.  

 

4.            Authorized Users.  You affirm that you are 13 years of age or older.  If you are under 13 years of age, you may not access or use the Website absent the consent of a parent or guardian.  Subject to these Terms of Use, you may not access or use the Website if you are unable to form a legal binding agreement with FTD.  You agree to provide true and accurate information about yourself on your account information page and to update your information as necessary to ensure all data listed is current.   

 

5.            Legal Notices.  We post legal notices on pages of the Website. You shall not remove these notices or credits, or any additional information contained along with the notices and credits.  The Website may contain references to trademarks, copyrighted materials, technologies, products, processes and software and other proprietary rights of FTD or other parties.  No license to or right in any such trademarks, copyrighted materials, technologies, products, processes, software or other proprietary rights of FTD is granted to or conferred upon you. 

 

6.            FTD Content.  Content on this Website that is provided by FTD, its employees or its licensors, including original art work, graphics, photographs, images, screen shots, text, music, digitally downloadable files, video clips, trademarks, logos, product and character names, slogans, and the compilation of the foregoing (“FTD Content”) is the property of FTD and its licensors, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws.

 

You are authorized to access and use the Website and related FTD Content; provided that:  (a) your use of the Website and FTD Content as permitted hereunder is solely for your personal, non-commercial use; (b) you will not copy, distribute or transfer any portion of the Website or FTD Content on any media without FTD’s prior written or electronic approval; (c) you will not alter, adapt or otherwise modify any part of the Website or FTD Content other than as may be reasonably necessary to use that part of the Website or FTD Content for its intended purpose; and (d) you will otherwise comply in full with these Terms of Use. The Website uses images for display purposes only. Actual products may differ from product images displayed.

 

7.            Account.  You are solely responsible for protecting the security and confidentiality of your password, as applicable, and are accountable for any activity undertaken through your FTD account.  By logging into the Website, you represent and warrant that: (a) you are the person who registered for the Website; and (b) that you are using the Website only for permitted purposes. You will immediately notify FTD of any unauthorized use of the password or account or any other breach of security. You agree to exit from your account at the end of each session. 

 

8.            Security.  You shall not violate or attempt to violate the security of the Website.  Violations of system or network security may result in civil or criminal liability.  FTD reserves the right to investigate occurrences which may involve such violations and may involve and cooperate actively with, law enforcement authorities in prosecuting users who have participated in such violations.

 

9.            Communications.  With respect to all communications with FTD, including but not limited to feedback, questions, comments, suggestions and the like:  (a) you shall have no right to confidentiality in your communications and FTD shall have no obligation to protect your communications from disclosure; (b) FTD shall be free to reproduce, use, disclose and distribute your communications to others without limitation; and (c) FTD shall be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.

 

10.          Sweepstakes, Promotions and Contests.  We may from time to time offer promotions, contests or sweepstakes. Please note that the particular terms for any such promotions, contests or sweepstakes or other features or activities may differ from the Terms of Use of our Website. If different or additional terms apply, they will be posted in a manner that makes it clear that such rules or terms apply to the applicable service.

 

11.          Privacy.  Your privacy is important to us.  Our Privacy Statement is incorporated into, subject to and made part of these Terms of Use.  To review the FTD Privacy Statement, click here.

 

12.          Indemnity.  You agree to indemnify and hold FTD and its agents and licensors harmless from any claim or demand, including costs or attorneys’ fees, made by any third party due to or arising out of any content you submit, post to or transmit through the Website, your violation of these Terms of Use, or your violation of any rights of another person or entity.

 

13.          Binding Arbitration. 

 

(a)                 General.  You and FTD agree that all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.  The arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. The arbitration will be conducted in Chicago, Illinois, unless the parties agree otherwise.  You and FTD agree that any arbitration shall be limited to the Claim between FTD and you individually. YOU AND FTD AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES, THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, AND NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

 

(b)                 Exceptions to Arbitration. You and FTD agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or FTD’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

 

(c)           Arbitration Fees. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

14.          Warranty Disclaimer.  YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK.  FTD MAKES NO WARRANTY THAT THE WEBSITE or any purchase that you make on the website WILL MEET YOUR REQUIREMENTS.  THE WEBSITE, ALL WEBSITE INFORMATION, and all purchases you make on the website are PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION CONTENT, OR SYSTEM INTEGRATION.  FTD ALSO DISCLAIMS ANY LIABILITY FOR CLAIMS ARISING OUT OF PRODUCT MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. FTD DOES NOT WARRANT THAT THE SITE WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.

 

15.          Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL FTD BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, COSTS OR ATTORNEY’S FEES ARISING OUT OF OR RELATING TO THESE TERMS OR USE, ACCESS TO, USE OF OR THE OPERATION OF THE WEBSITE.  YOUR SOLE AND EXCLUSIVE REMEDY AND FTD’S SOLE AND EXCLUSIVE LIABILITY TO YOU FOR ANY REASON SHALL BE FOR YOU TO DISCONTINUE YOUR ACCESS TO OR USE OF THE WEBSITE.

 

16.          Limited Time to Bring Your Claim; Trial by Jury.  You and FTD agree that any cause of action arising out of or related to the Website, any FTD Content or any purchase that you make on the Website must be commenced within one (1) year after the cause of action accrues.  Otherwise, such cause of action is permanently barred. To the extent allowed by law, each of you and FTD waive any right to trial by jury in any Dispute.

 

17.          Force Majeure. FTD shall not be liable for any delay in, or impairment of, performance resulting in whole or in part from any force majeure event, including but not limited to acts of God, labor disruptions, acts of war, acts of terrorism (whether actual or threatened), governmental decrees or controls, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to procure or ship product or obtain permits and licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, grower delays at the farm level, delays due to product held by the USDA/Customs for inspection, or any other circumstance or cause beyond the reasonable control of FTD in the conduct of its business.

 

18.          Miscellaneous. Both you and FTD acknowledge and agree that no partnership is formed, and neither of you nor FTD has the power or the authority to obligate or bind the other.  These Terms of Use will be governed by and construed in accordance with the laws of the State of New York without regard to regard to: (i) such state’s conflicts-of-laws principles; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. These Terms of Use operate to the fullest extent permissible by law. If any provision of these Terms of Use is unlawful, void, or unenforceable, that provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. If FTD fails to act with respect to your breach or anyone else’s breach on any occasion, FTD is not waiving its right to act with respect to future or similar breaches.  These Terms of Use constitute a binding agreement between you and FTD, and are accepted by you as a condition for your use of the Website or your account. These Terms of Use, the Privacy Policy and your FTD Membership Agreement constitute the entire agreement between you and FTD regarding the use of the Website, including, without limitation, any purchase you make on the Website, and the FTD Content.

 

19.          Questions or Concerns.  If you have any questions or concerns, please contact us.

 

·                     Send an email to: marketplacecs@ftdi.com

·                     Call us toll-free at: (800) 767-4000; Option #2, 8AM-8PM EST Monday to Friday, or 9AM-2PM EST Saturday