This Lovingly Store Services Agreement (this “Store Services Agreement”) describes the terms under which you (“you” or “Retailer”) are purchasing the right to use the Lovingly Store Services from Lovingly, LLC, (“we,” “us” or “Lovingly”), a Delaware limited liability company with a principal place of business located at 1399 Route 52, Suite 100, Fishkill, New York 12524.
Binding Agreement. This Store Services Agreement constitutes part of a single, binding agreement between you and Lovingly that includes the documents and terms incorporated by reference as described in Section 3 below (collectively, this “Agreement”).
Effective Date. By executing a Store Services Order Form, you accept this Store Services Agreement. This Store Services Agreement is effective as of the date indicated on your Store Services Order Form or on the date of your online purchase (the “Effective Date”).
Modifications. We may modify this Store Services Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we will notify you (for example, by sending you an email or displaying a prominent notice within the Lovingly Store Services). The notice will designate the date on which the modifications become effective. Modifications will never apply retroactively. By continuing to use or access the Lovingly Store Services after any modifications come into effect, you agree to be bound by the modified Store Services Agreement, including any price changes. If you disagree with our changes, then you must stop using the Lovingly Store Services.
“Agreement” has the meaning given to it in Section 1(a).
“Customer Data” has the meaning given to it in the Retailer Terms of Service.
“Directories” has the meaning given to it in Section 7.
“Effective Date” has the meaning given to it in Section 1(b).
“Florist’s Choice Daily Deal” has the meaning given to it in Section 5(b).
“Initial Term” has the meaning given to it in your Store Services Order Form.
“Liquidated Damages” has the meaning given to it in Section 11(d).
“Lovingly” has the meaning given to it in the preamble.
“Lovingly Store” has the meaning given to it in Section 4.
“Lovingly Store Services” has the meaning given to it in Section 4.
“Party” or “Parties” means you or Lovingly or both as dictated by context.
“Renewal Term” has the meaning given to it in Section 11(b).
“Retailer” has the meaning given to it in the preamble.
“Retailer Terms of Service” means the terms of service located at https://www.lovingly.com/legal/us/retailer-terms, which describe the general terms of the commercial relationship between you and Lovingly.
“Store Customer” means any individual or organization that visits your Lovingly Store in order to browse or purchase your goods or services.
“Store Services Agreement” has the meaning given to it in the preamble.
“Store Services Order Form” means the initial contract that you signed specifying the basic terms under which you are purchasing the Lovingly Store Services
“Term” has the meaning given to it in Section 11(b).
“Transaction” has the meaning given to it in Section 9(a).
“Transaction Fee” has the meaning given to it in Section 9(a).
Incorporated Documents; Conflicts.
This Store Services Agreement incorporates the following documents by reference:
your Store Services Order Form;
the Retailer Terms of Service; and
any other agreements, exhibits, appendices, addenda or other terms incorporated by reference in any of these agreements.
If there is any conflict between the terms of this Store Services Agreement, your Store Services Order Form, the Retailer Terms of Service or any other incorporated terms or documents, such terms or documents will have the following order of precedence (from most to least controlling):
the Store Services Order Form;
this Store Services Agreement (for matters pertaining exclusively to your Lovingly Store);
the Retailer Terms of Service; and
any other terms or document incorporated herein.
The Lovingly Store. During the Term, Lovingly shall create, manage, and host an e-commerce website for your business (the “Lovingly Store”), including but not limited to (a) managing domain names (subject to the provisions of Section 6 below), (b) providing website design, content, and online ordering and payment capabilities, (c) providing access to an order and payment management system for purposes of managing orders made via the Lovingly Store, (d) search engine optimizing the Lovingly Store, and (e) managing all of your online business listings (collectively the “Lovingly Store Services”).
Design and Marketing Decisions.
Lovingly may consult with you regarding the initial content and template design of the Lovingly Store, however Lovingly shall have no obligation to notify you or consult with you regarding the Lovingly Store content and design, including any changes thereto. If you and Lovingly disagree as to any decision regarding Lovingly’s performance of the Lovingly Store Services, including but not limited to the content and design of the Lovingly Store, Lovingly’s sole determination shall be final.
Notwithstanding Section 5(a) above, your decision shall be final as to (i) what products and services will be sold via the Lovingly Store (with the exception of the Florist's Choice Daily Deal, which you hereby agree to offer), and (ii) the sale price of the products and services sold via the Lovingly Store. As used herein, the “Florist's Choice Daily Deal” means an arrangement of flowers as determined by the florist in standard, deluxe, and premium sizes. You hereby acknowledge that the Florist’s Choice Daily Deal may be marketed to you or your Store Customers under a different name from time to time.
You hereby agree to transfer control to Lovingly of any domain name(s) to be used in connection with the Lovingly Store during the Term. You agree to name an individual specified by Lovingly as the technical, administrative and registrant contact for any domains hosted by Lovingly. You shall be solely responsible for paying all domain name maintenance and ownership fees for domain names obtained by you and transferred to Lovingly, including while Lovingly holds the domain name. Lovingly reserves the right, in its sole discretion, to waive the fees discussed in this Section 6(a).
Lovingly shall transfer the domain name(s) back to you upon the termination of this Store Services Agreement, provided that Lovingly has received all amounts due to it hereunder, including but not limited to any Liquidated Damages due under Section 11(d) of this Store Services Agreement.
Retailer will not have any rights in, and Lovingly will not transfer to Retailer any domain names that Lovingly purchases in providing the Lovingly Store Services. Retailer will not be responsible for any fees related to any such domain names purchased by Lovingly.
Except as provided in this Section 6, domain name(s) associated with the Lovingly Store may not be transferred, substituted, or altered during the Term. In its sole discretion, Lovingly may change the Lovingly Store domain name, redirect other domain names to the Lovingly Store, and determine to which domain name all others will be redirected.
Except as otherwise provided in this Agreement, Lovingly and its licensors retain all rights in the content, design, technology and other materials incorporated into the Lovingly Store.
Online Business Listings. During the Term, Lovingly shall manage all of your third party online business listings, including but not limited to Google Places, Google My Business Page, and Bing Local (collectively, the “Directories”). You acknowledge and agree that the Lovingly Store domain name will be listed as your business’ primary website on the Directories.
Featuring Your Store. We may choose to feature certain Lovingly Stores or names, trademarks, service marks or logos included on those Lovingly Stores. To the extent you retain any rights to any content featured in your Lovingly Store, you grant us a perpetual, worldwide, royalty-free, non-exclusive right and license to use any version of your Lovingly Store, or any portion of your Lovingly Store, including without limitation names, trademarks, service marks or logos on your Lovingly Store, for the purposes of providing, improving, marketing or promoting our services. For example, we may feature your Lovingly Store on our website or social media accounts. You waive any claims against us relating to any moral rights, artists’ rights or any other similar rights worldwide that you may have in or to your Lovingly Store or names, trademarks, service marks or logos on your Lovingly Store and any right of inspection or approval of any such use. You can opt out of being featured by sending a message to firstname.lastname@example.org. This paragraph does not affect any rights you may have under applicable data protection laws.
Transaction Fee. You hereby authorize Lovingly to charge a transaction fee (the “Transaction Fee”) from the monies due to you for each Store Customer purchase made via your Lovingly Store (each, a “Transaction”). The Transaction Fee is specified in your Store Services Order Form and your Retailer Account. If a full or partial refund of the Transaction is provided by you to a Store Customer, Lovingly shall refund a full or pro rata portion of the Transaction Fee to you, as applicable. Lovingly may increase the Transaction Fee effective upon the beginning of any Renewal Term, provided that Lovingly shall indicate such an increase to you in writing, at least thirty (30) days prior to the start of the applicable Renewal Term.
Credit Card and Charge Back Fees. In addition to the Transaction Fee, you hereby authorize Lovingly to charge its standard credit card and charge back fees pursuant to the Retailer Terms of Service.
Term and Termination.
Initial Term. This Store Services Agreement will become effective on the Effective Date and shall have an Initial Term as specified on your Store Services Order Form.
Renewal. After the Initial Term, this Store Services Agreement will renew automatically for successive one (1) year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless renewal is cancelled by either party in writing at least thirty (30) days prior to the beginning of the next Renewal Term. If renewal is cancelled pursuant to this Section 11, this Store Services Agreement will terminate at the end of the then-current Term.
Termination. Either Party may terminate this Store Services Agreement for any reason upon two (2) weeks’ prior written notice to the other Party. In addition to any termination rights bestowed elsewhere in this Store Services Agreement, Lovingly may also terminate this Store Services Agreement immediately in the case of your breach of this Store Services Agreement.
Early Termination and Liquidated Damages.
If Retailer terminates this Store Services Agreement pursuant to Section 11(c), Retailer shall pay to Lovingly an amount equal to Three Hundred and Twenty-Five Dollars ($325.00) per month for each month between the effective date of such termination and the date that would have been the beginning of the next Renewal Term (such amount, “Liquidated Damages”).
If the effective date of such termination is less than thirty (30) days prior to the beginning of the next Renewal Term, and if Retailer has not cancelled renewal pursuant to Section 11(b) above, Liquidated Damages will include each month in such Renewal Term along with the then-current month.
If the Lovingly Store is not publicly accessible over the internet within ninety (90) calendar days from the Effective Date, Retailer shall pay Liquidated Damages as if Retailer had terminated this Store Services Agreement on such ninetieth (90th) day.
Liquidated Damages will not be pro-rated for partial months.
The Parties agree that quantifying losses arising from Retailer’s early termination is inherently difficult insofar as such termination may impact Lovingly’s reputation, impair Lovingly’s ability to adequately respond to variable market demand, or require Lovingly to provide non-monetary concessions (such as replacement bouquets or free shipping) to Store Customers that would have otherwise been serviced by Retailer. The Parties further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the parties’ experience in the floral industry and given the nature of the losses that may result from such early termination.
This Section 11 does not apply where Retailer’s early termination is a result of Lovingly’s breach of this Store Services Agreement.
Entire Agreement; Inurement. It is hereby acknowledged that this Store Agreement, together with the Retailer Terms of Service, your Store Services Order Form and any other terms or documents incorporated by reference herein, constitute the entire agreement between the Parties pertaining to the Lovingly Store, and supersedes in their entirety any and all written or oral agreements previously existing between the parties with respect to such subject matter. This Store Services Agreement will inure to the benefit of and be binding upon the Parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
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