FTD Companies, Inc. - Terms & Conditions
Effective Date: November 12, 2018
THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT IMPACT YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES. IF YOU LIVE IN THE UNITED STATES, PLEASE READ IT CAREFULLY.
FTD Companies, Inc. and its affiliates ("FTD") currently own or operate the following brands: FTD.COM, FTD, INTERFLORA, the MERCURY MAN Emblem, PROFLOWERS, PROPLANTS, SHARI'S BERRIES, PERSONAL CREATIONS, REDENVELOPE, FLYING FLOWERS, AND GIFTS.COM, among others. These brands may be updated from time to time by FTD without notice.
These Terms are current as of the Effective Date. FTD reserves the right to change these Terms from time to time. Please consult these Terms from time to time since FTD may, at any time, and without notice, revise these Terms by updating this posting.
Please read these Terms carefully.
By accessing or using the FTD Services, you are bound by these Terms and any revisions, so you should periodically visit this page to review the current Terms. Access or use of the FTD Services following any change to the Terms constitutes your agreement to those changes. If, at any time, you choose not to accept the terms of these Terms, you should not access or use the FTD Services.
You agree that you do not have any rights in the FTD Services and that FTD will have no liability to you if the FTD Services, or any portion thereof, are discontinued or your ability to access or use the FTD Services is terminated.
Table of Contents
- Authorized Users
- Account and Passwords
- Procedures for Purchases
a. Delivery Policies
b. FTD Gold Membership
c. Substitution Policy
- Limited Guarantees
- Legal Notices
- Sweepstakes and Contests; Social Media Campaigns
- FTD Content
- FTD Use of User Content
- Third Party Content
- No Offensive or Infringing Use
- DMCA Notice
- Mobile Capabilities
- Binding Arbitration / Class Waiver
- Warranty Disclaimer
- Limitation on Liability
- Limited Time to Bring Your Claim
- Trial by Jury
- Force Majeure
- Governing Law
1. Authorized Users.
You affirm that you are 13 years of age or older. Indeed, in order to make a purchase through the FTD Services, you must be 18 or older and have a valid credit card or other acceptable electronic payment method. Subject to these Terms, you may not use the FTD Services if you are unable to form a legal binding agreement with FTD. You agree that you are only authorized to visit or use the FTD Services for your own personal use and not for any business purposes without a separate agreement in writing with FTD. You may not use the FTD Services to purchase any product for resale by you or on behalf of any other person. You may not resell, either directly or indirectly, any product purchased using the FTD Services.
2. Accounts and Passwords.
You may establish an account to use or access certain features of the FTD Services. During the account registration process, you will be asked to select a unique password. 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 FTD Services, you represent and warrant that: (a) you are the customer who registered for the FTD Services; and (b) that you are using the FTD Services only for permitted purposes. You will immediately notify FTD by providing notice to FTD Customer Service at http://www.ftd.com/custserv/contact.epl 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.
If you create an account, you represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii) you will not select or utilize a user name that FTD in its sole discretion deems offensive.
FTD reserves the right, in its sole discretion, immediately and without notice, to suspend or terminate your account or your ability to access the FTD Services for any reason, including, without limitation, any breach of these Terms by you.
3. Procedures for Purchases.
By accessing or using the FTD Services, you agree to the various FTD policies and procedures that apply to the purchase of the products or services offered through the FTD Services, which are made part of these Terms. Prices will be those in effect at the time of purchase (in U.S. dollars) and unless otherwise specified, exclude freight, handling fees, taxes, and duties. 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. All products are subject to availability. FTD reserves the right to accept, reject or cancel any order and to correct any errors, including, without limitation, publishing, descriptive, typographical, or any other similar errors.
You authorize FTD to hold, receive and disburse funds in accordance with your payment instructions. Your authorization permits FTD to (a) debit or credit your credit card, debit card, or other payment methods that we accept ("Cards"); or (b) initiate recurring charges from your Cards if you signed up for a service that requires automatic billing. When you place an order, you authorize and order FTD to commit your payment to the applicable FTD entity. Your authorizations will remain in full force and effect while you maintain your account with FTD.
(a) Delivery Policies:
- FTD.COM: www.ftd.com/delivery-policy
- ProFlowers: www.proflowers.com/customerservice
- Personal Creations: www.personalcreations.com/shippingreturns
- Shari's Berries: www.berries.com/customercare.aspx
- Gifts.com: www.gifts.com/shippingreturns
(b) FTD Gold Membership.
For more information on the FTD Gold Membership, please visit www.ftd.com/custserv/ftdgoldmembershipfaqs.epl.
(c) Substitution Policy.
Substitutions may be necessary to ensure your arrangement or specialty gift is delivered in a timely manner. The utmost care and attention is given to your order to ensure that it is as similar as possible to the requested item.
- In arrangements of assorted flowers, the colors shown online will be used if at all possible, even if this means substituting other kinds of flowers of equal or greater value.
- For one-of-a-kind flower arrangements, such as all roses or all lilies, FTD will make every attempt to match the flower type, but may substitute with another color.
- If the floral container shown online is not available, a similar container will be used.
- For green and blooming plants, similar plants may be substituted of equal or greater value.
- For one-of-a-kind plants, such as orchids, FTD will make every attempt to match the plant type, but may substitute with another color.
- If the plant container shown online is not available, a similar container will be used.
- Specialty gifts may be substituted with another specialty gift of equal or greater value and of similar theme and category.
FTD Services use images for display purposes only. Actual products may differ from product images displayed. For example, many of our berries arrive without stems and come fully covered in chocolatey goodness. Regardless of variations in products, we guarantee customer satisfaction in every order.
- FTD.COM: www.ftd.com/custserv/guarantee.epl
- ProFlowers: www.proflowers.com/customerservice-guarantee.aspx
- Personal Creations: www.personalcreations.com/CustomerService-ShippingAndReturns.aspx
- Shari's Berries: Your flowers, plants or any other preserved items are guaranteed to last at least seven days (potted plants have an extended guarantee of 14 days). If for any reason you are not satisfied with the freshness of your gift or about any of our items, including our gourmet products, please contact us by visiting www.berries.com/ContactUs and we will gladly replace it or refund your money.
- Gifts.com: www.gifts.com/shippingreturns
5. Legal Notices.
FTD posts legal notices on pages of the FTD Services. The FTD Services may contain references to trademarks, copyrighted materials, technologies, products, processes and software and other proprietary rights of FTD or other parties. Except as expressly provided in Section 7 of these Terms, no license to or right in any such trademarks, copyrighted materials, technologies, products, processes, software or other proprietary rights is granted to or conferred upon you.
6. Sweepstakes and Contests; Social Media Campaigns.
FTD may conduct campaigns, contests and sweepstakes through FTD's various social media channels and, as part of those campaigns, contests and sweepstakes, FTD may solicit responses and submissions from you using various popular social media mechanisms used to indicate that you are responding to FTD. For example, you may respond on Facebook, Twitter or Instagram with a #yesFTD or direct your reply to @ftdflowers. By directing those responses and submissions to FTD, such responses and submissions are considered User Content (as defined in Section 8) under these Terms - and, in addition to the other obligations of Section 8 of the Terms, you agree to grant FTD a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, sublicensable and transferable license to use, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including, without limitation, over the Internet, broadcast television, radio or any other uses or media) such User Content, in whole or in part, including future rights that FTD (or its successors) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed to the maximum extent permitted by applicable law.
7. FTD Content.
Content on the FTD Services 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 or 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 FTD Services and related FTD Content; provided that: (a) your use of the FTD Services 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 FTD Services or FTD Content on any media without FTD's prior written or electronic approval; (c) you will not alter, adapt, reverse engineer, or otherwise modify any part of the FTD Services or FTD Content other than as may be reasonably necessary to use that part of the FTD Services or FTD Content for its intended purpose; and (d) you will otherwise comply in full with these Terms. Any access or attempt to access other areas of any FTD computer system or other information contained on the system for any purpose other than as intended by FTD is strictly prohibited.
8. FTD Use of User Content.
9. Third Party Content.
FTD has no control over and is not responsible and assumes no liability for: (i) any third party content contained within the FTD Services; or (ii) the applicable third parties.
10. No Offensive or Infringing Use.
FTD respects the intellectual property of others, and FTD expects its users to do the same. It is FTD's policy, in appropriate circumstances and at FTD's discretion, to disable or terminate users of the FTD Services who infringe or repeatedly infringe the copyrights or other intellectual property rights of FTD or other rights owners. When using the FTD Services, you will not use any feature of the FTD Services for any purpose that is illegal, tortious, obscene, threatening, defamatory, libelous, invasive of another's privacy, pornographic, racist, abusive, harassing, threatening, offensive, hateful, or otherwise injurious to the legal rights (such as rights of privacy and publicity) of third parties. You also agree not to upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
11. DMCA Notice.
If you are a copyright owner or an agent thereof and believe any User Content or other FTD Content infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act ("DMCA") by providing notice to FTD Customer Service at www.ftd.com/custserv/contact.epl and include the following information:
(a) Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(b) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit FTD to locate the material;
(c) Information reasonably sufficient to permit FTD to contact you, such as an address, telephone number and, if available, an electronic mail address;
(d) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
(e) A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(f) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed.
You acknowledge that if you fail to comply with substantially all of the above requirements of this Section your DMCA notice may not be valid and FTD may not be able to remove infringing content.
You should also send your notification to the following address:
FTD Companies, Inc.
3113 Woodcreek Drive
Downers Grove, IL 60515
Attention: Legal Department
Fax: (630) 719-7800
12. Mobile Capabilities.
The FTD Services may include certain services available via your mobile phone, including, without limitation: (a) the ability to upload to FTD websites or applications via your mobile phone; (b) the ability to receive and reply to messages and to send content and messages using text messaging or push notifications; and (c) the ability to access the FTD Services from your mobile phone ("Mobile Services"). FTD does not charge for Mobile Services unless otherwise noted; however, your carrier's normal messaging, data and other rates and fees may still apply. Your carrier may prohibit or restrict certain Mobile Services and certain Mobile Services may be incompatible with your carrier or mobile device. You should check with your carrier to find out what plans are available and how much they cost. By using the Mobile Services you agree that FTD may communicate with you regarding the FTD Services and FTD's partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to FTD. You agree that in connection with the Mobile Services for which you are registered, FTD may send communications to your mobile device regarding FTD or other parties. Further, FTD may collect information related to your use of the Mobile Services. If you have registered for Mobile Services, you agree to notify FTD of any changes to your mobile number and update your account(s) through the FTD Services to reflect this change.
You shall not violate or attempt to violate the security of the FTD Services. 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.
With respect to all communications with FTD including, without limitation, 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, without limitation, the development, production and marketing of products and services that incorporate such information without any consideration or accounting.
16. Binding Arbitration / Class Waiver.
(b) Payment of arbitration costs will be governed by the AAA's fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case FTD will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. FTD also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys' fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys' fees and expenses.
(c) The arbitration may be conducted in Chicago, Illinois or, upon the plaintiff's request, in the city closest to plaintiff's location where AAA maintains an office, unless the parties agree otherwise in writing. The arbitrator's award shall be final and binding on all parties subject to these Terms and may be entered as a judgment in any court of competent jurisdiction.
(d) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
(e) To the fullest extent permissible under applicable law, all Disputes shall be resolved by binding confidential arbitration on an individual basis.
(f) 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. NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION. YOU AND FTD FURTHER AGREE THAT THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL, PROVIDED HOWEVER THAT NOTHING HEREIN SHALL BE DEEMED TO PREVENT A PARTY FROM SEEKING PUBLIC INJUNCTIVE RELIEF IN ARBITRATION UNDER THIS AGREEMENT WHERE APPLICABLE LAW PROVIDES FOR SUCH A RIGHT.
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from (i) a violation of your or FTD's intellectual property rights in any manner; (ii) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and (iii) any claim for equitable relief; then both parties agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the "Governing Law" section below, and both parties consent to exclusive jurisdiction and venue in such courts. 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.
By using any of the FTD Services, you agree to indemnify and hold FTD, its subsidiaries, affiliates, officers, agents and other partners and employees harmless from any loss, liability, claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (a) your improper use of such FTD Services; (b) any User Content provided or used by you; or (c) your violation of these Terms.
18. Warranty Disclaimer.
YOUR USE OF THE FTD SERVICES IS AT YOUR SOLE RISK. FTD MAKES NO WARRANTY THAT THE FTD SERVICES WILL MEET YOUR REQUIREMENTS. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, ALL FTD SERVICES INCLUDING, WITHOUT LIMITATION, ANY MATERIALS, PRODUCTS OR SERVICES PROVIDED IN CONNECTION THEREWITH, 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 MISUSE, IMPROPER PRODUCT SELECTION, IMPROPER INSTALLATION, PRODUCT MODIFICATION, MISREPAIR OR MISAPPLICATION. FTD DOES NOT WARRANT THAT THE FTD SERVICES WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.
LAWS IN CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES. TO THE EXTENT SUCH LAWS APPLY, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS SET FORTH HEREIN MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE.
19. Limitation of Liability.
FTD SHALL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, COSTS OR ATTORNEY'S FEES ARISING OUT OF OR RELATING TO THESE TERMS OR THE ACCESS TO, USE OF OR OPERATION OF THE FTD SERVICES INCLUDING, WITHOUT LIMITATION, ANY MATERIALS, PRODUCTS OR SERVICES PROVIDED IN CONNECTION THEREWITH. FTD'S AGGREGATE LIABILITY TO YOU ARISING UNDER OR IN CONNECTION WITH THE FTD SERVICES IS LIMITED TO THE PURCHASE PRICE PAID FOR THE MATERIALS, PRODUCT AND/OR SERVICE THAT GIVES RISE TO SUCH LIABILITY.
LAWS IN CERTAIN STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT SUCH LAWS APPLY, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH HEREIN MAY NOT APPLY AND OTHER RIGHTS MAY BE AVAILABLE.
20. Limited Time to Bring Your Claim.
You and FTD agree that any cause of action arising out of or related to the FTD Services or any FTD Content including without limitation any Claim or Dispute must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
22. 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 without limitation 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.
23. Governing Law.
These Terms will be governed by and construed in accordance with the laws of the State of Illinois without regard to: (a) such State's conflicts-of-laws principles; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.
Both you and FTD acknowledge and agree that no partnership is formed, and neither you nor FTD has the power or the authority to obligate or bind the other. If any provision of these Terms is determined to be unlawful, void or unenforceable by a tribunal of competent jurisdiction, that provision is deemed severable from these Terms 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 constitute a binding agreement between you and FTD, and are accepted by you as a condition for your use of the FTD Services or your account. These Terms constitute the entire agreement between you and FTD regarding the use of the FTD Services and the FTD Content.