Teleflora Managed Services Agreement Page 1 of 6 This Teleflora Managed Services Agreement (this "Agreement") is entered into as of the Effective Date set forth below between Teleflora LLC ("Teleflora") and ("Customer"). A. Teleflora is an authorized reseller and licensee of certain computer hardware and software, and requires Customer to purchase certain Managed Services, as described herein, in connection with use of such computer hardware and software. B. Customer desires to acquire from Teleflora the computer hardware and software described below, and shall be required to obtain from Teleflora the Managed Services, in connection therewith. NOW, THEREFORE, for good and valuable consideration, the adequacy of which is acknowledged, Teleflora and Customer agree as follows: 1. Sale of Equipment. Teleflora shall sell to Customer one (1) Firewall Router (the "Router") more specifically described in Exhibit B hereto. 2. Sublicense of Software. Teleflora shall grant to Customer a limited, non-exclusive, non-transferable license to use, solely pursuant to the terms of this Agreement, one (1) copy per shop computer of the computer software (the "Software") more specifically described in Exhibit B hereto. 3. Managed Services. During the term of this Agreement, Teleflora shall provide the services (the "Managed Services") described in Exhibit B hereto. Teleflora may amend Exhibit B from time to time on thirty (30) days prior written notice to Customer. 4. Term. This Agreement shall commence upon the Effective Date identified below and shall remain in effect until terminated by either Teleflora or Customer (the "Term") as provided in the Terms and Conditions attached hereto as Exhibit A. 5. Fees and Costs. Customer shall pay for the Router, Software and Managed Services at the rates set forth in Exhibit B hereto. Teleflora may amend Exhibit B on thirty (30) days written notice. 6. Exhibits; Incorporation by Reference. Each of the Exhibits to this Agreement is incorporated into this Agreement by reference. The Exhibits attached to this Agreement are: A Terms and Conditions B Description of Router, Software, Managed Services and Fees Without limiting the foregoing, by entering into this Agreement, except as specifically amended by this Agreement, Customer agrees to be bound by the McAfee End User Agreement available at www.myteleflora.com and to comply in all respects with all obligations and limitations contained therein. If there is any conflict between the terms of this Agreement and the McAfee End User Agreement, as it relates to the Software, the terms of this Agreement shall control; provided, that Teleflora makes no representations or warranties regarding the performance, ownership or use of the Software, all of which are made exclusively by McAfee. In addition, the Teleflora Rules and Regulations are incorporated by reference into this Agreement. If there is any conflict between the terms of this Agreement and the Teleflora Rules and Regulations, the Teleflora Rules and Regulations shall control. 7. Effective Date. The Effective Date of this Agreement is. IN WITNESS WHEREOF, Teleflora and Customer have entered into this Agreement as of the Effective Date. Address for Notices Customer Name: By Printed Name:_ Title: Teleflora LLC By Printed Name:_ Title: {013712.3}
{013712.3} 2 Page 2 of 6 EXHIBIT A Terms and Conditions 1 Definitions. 1.1 Agreement means the Agreement which incorporates these Terms and Conditions. 1.2 Confidential Information means any and all information of any kind which, if disclosed, would give a competitor a business advantage or would be detrimental to the party owning or having such information; which is designated confidential, restricted or other term of similar meaning; or which is privileged or confidential under federal or state law or regulations. No information constitutes Confidential Information of either party if it is publicly known without any breach of a confidentiality obligation or is in the public domain, or is approved for release without restriction by the party who has a claim of confidentiality with respect to such information. 1.3 Documentation means all Specifications, manuals, documents, drawings and other items describing or relating to the technical capabilities, structure, operation, installation, and use of the Software, including formulas and algorithms in or performed by the Software, operating instructions, input information, format specifications, instructional materials, user guides, programmer guides, training manuals, and descriptions and definitions of necessary operating conditions, characteristics, and capabilities. 1.4 Improvements means any and all modifications, error corrections, updates and additions to, and later releases of, the Software or the Documentation. 1.5 License means the grant of use provided in the Agreement. 1.6 Production Environment means the computer system on which the Software functions, including all applications, operating systems, utilities, and other tools or components with which the Software interfaces, and all equipment, including central processing units, personal computers, servers, data transmission lines and peripheral equipment. 1.7 Software means the application programs and any related programs, tools, utilities or accessories licensed to Customer pursuant to the Agreement. Software includes Improvements and Third Party Software. 1.8 Specifications means the descriptions of the functional components and parameters of the Software, including its design, its performance, the practices and procedures required for the Software to perform according to the Agreement, and the descriptions of operating capabilities, upgrade and expansion capabilities, and other qualities and characteristics of the Software. 1.9 Third Party Software means all applications, components, tools, utilities, accessories or other programs not owned by Teleflora and which are included in Software through a sub-license. Third Party Software includes associated Documentation and includes Improvements to Third Party Software. 2 Grant and Scope of License. 2.1 License Grant. Subject to the terms and conditions of the Agreement, and Customer's payment of all applicable fees required thereunder, Teleflora hereby grants to Customer a limited, a non-exclusive, non-assignable, nonsublicensable, non-transferable license (the "License"), during the Term, to access and use the Software for Customer's internal business purposes only, on a computer or a computer network at the physical shop location owned and operated by Customer. Customer may use only one copy of the Software per computer at a given time, but it may copy the Software as is reasonably necessary for its effective use, including for maintenance, back-up, archival purposes, testing, training, disaster recovery or contingency procedures, interfacing with other components of Customer s computer system, and to move the Software to an upgraded or substitute platform. 2.2 Unauthorized Use. Customer shall not permit any individual or entity other than its direct employees or agents that to use the Software and shall be responsible for any access or use of the Software by Customer or any person or entity. 3 Restrictions. Customer shall not: (a) copy the Software or any portion thereof other than as required to use the Software as intended by this Agreement; (b) translate, decompile or create or attempt to create, by reverse engineering or otherwise, the source code form from the object code of the Software; (c) modify, adapt, translate or create a derivative work from the Software; (d) remove any proprietary notices, labels, or marks on the Software; or (e) assign, sublicense, rent, transfer, publish, make available to third parties on a time-sharing or service bureau basis or otherwise make available for the benefit of third parties all or any part of the Software, including, without limitation, by transmitting
{013712.3} 3 Page 3 of 6 or providing the Software, or any portion thereof, over the Internet, or otherwise, to any third party. All rights not expressly granted hereunder are reserved to Teleflora. 4 Representations, Warranties and Exclusions. 4.1 Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND THE FIREWALL IS PROVIDED HEREUNDER WITH NO WARRANTY WHATSOEVER. CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS AT ITS OWN RISK. THE SERVICE IS PROVIDED SOLELY ON AN "AS-IS" BASIS. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, TELEFLORA DISCLAIMS OTHER WARRANTIES AND DOES NOT MAKE ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION OR WARRANTY AS TO THE OWNERSHIP OR NON-INFRINGEMENT OF ANY SOFTWARE. THE WARRANTIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT TELEFLORA IS NOT RESPONSIBLE FOR AND DOES NOT GIVE ANY ASSURANCE TO CUSTOMER OR ANY OTHER ENTITY OR PERSON WITH RESPECT TO THE VALIDITY AND VALUE, USEFULNESS OR ACCURACY OF THE SOFTWARE. CUSTOMER SHALL BEAR ALL RISK ASSOCIATED WITH THE USE OF THE SOFTWARE. TELEFLORA SHALL MAKE AVAILABLE TO CUSTOMER WARRANTIES PROVIDED BY THIRD-PARTY PROVIDERS OF SOFTWARE AS DESCRIBED IN EXHIBIT C. 4.2 Operating Environment. Customer is solely responsible for acquiring, installing, operating and maintaining the hardware and software environment necessary to access and use the Software and the Managed Services remotely, via the Internet. Customer shall be required to maintain the Managed Services during use of Teleflora s computer hardware and software system. 4.3 Changes to Service. Teleflora may upgrade, downgrade, modify, change or enhance the Managed Services at any time in its sole discretion. 4.4 Ownership. Teleflora represents and warrants that it owns or has the right to license all the Software and Documentation which is the subject of this Agreement, and it has all the rights necessary to perform its obligations under this Agreement. 4.5 Functionality. Teleflora represents and warrants that it shall perform the Managed Services substantially in compliance with the applicable Specifications and Documentation. Teleflora makes no representation or warranty as to the Router, any Software or the performance of any other party. 5 Installation and Testing. Teleflora shall install the Software in accordance with the Exhibit B. 6 Title. Except as otherwise provided in this Agreement, title to the Software provided by Teleflora shall remain with Teleflora or its suppliers. 7 Term and Termination. 7.1 This Agreement shall commence upon the Effective Date identified below and shall remain in effect until terminated by either Teleflora or Customer on not less than thirty (30) days notice for any reason or for no reason. 7.2 Teleflora may immediately terminate this Agreement and the Managed Services, in the event that Customer breaches any obligation, warranty, representation or covenant under this Agreement or any other agreement or arrangement with Teleflora, including the Teleflora Rules and Regulations. Teleflora may otherwise terminate this Agreement for any reason or no reason upon thirty (30) days written notice to Customer. If timely payment is not received by its due date, Teleflora reserves the right to either suspend or terminate Customer's access to the Software. 7.3 Either party may terminate this Agreement immediately upon the declaration or adjudication of the other party as bankrupt, or at such time as a receiver or trustee is appointed for the other party or all or substantially all of its assets. 8.3 Upon termination or expiration of this Agreement for any reason, the License shall terminate, Customer will be obligated to pay any and all fees due hereunder up through the date of such termination or expiration and Teleflora shall have no further obligations to Customer. 8 Limitation of Liability. Neither Teleflora nor Customer shall be liable for indirect, special, incidental, punitive, exemplary, or consequential damages arising out of the performance or breach of this Agreement. 9 Remedies; Indemnification. 9.1 Limitation on Remedies. No remedy set forth in this Agreement for breach of this Agreement is intended to exclude or limit any other remedy now or hereafter existing at law or in equity or by statute or otherwise. For example,
Page 4 of 6 cancellation or termination of this Agreement in accordance with its terms does not exclude or limit a claim for damages caused by a breach of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, Teleflora's entire aggregate liability to Customer for damages relating in any way to the subject matter of this Agreement shall not exceed the amount of payments made to Teleflora by Customer during the six (6) months prior to the date of the claim. 9.2 Indemnification. Customer agrees to defend, indemnify and hold harmless Teleflora, its parent, subsidiaries, affiliated companies, and their directors, officers, members, managers, trustees, agents and employees (collectively, the "Indemnified Parties"), with respect to any claim, demand, cause of action, debt, liability and expense (including reasonable attorneys' fees, costs and expenses) arising from breach of this Agreement by Customer or by any of Customer's agents, or employees, or in connection with Customer's use of the Software, whether or not such use was authorized by Customer. Teleflora reserves the right to select Customer's counsel to defend any such claims, subject only to Customer's approval, which approval will not be unreasonably withheld, delayed or conditioned, and to approve any settlement agreement. Teleflora also reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer hereunder. 10 Confidentiality. Each party shall use the other s Confidential Information only as necessary in connection with performance of this Agreement. Each party shall hold the other s Confidential Information in the strictest confidence, and neither party shall release the other s Confidential Information except to employees or contractors requiring access to it in the ordinary course and scope of their employment by Customer or Teleflora, except to the extent other disclosure is required by law, as advised in writing by the disclosing party s counsel, or by court order. Each party shall protect the other s Confidential Information by all reasonable and necessary security measures, devices, and procedures to maintain the strictest confidence thereof. Customer and Teleflora shall cause each of their employees and contractors who has access to the other s Confidential Information, to hold such information confidential. Such confidentiality shall be maintained to the same degree as such party maintains it own (or its Employer s) own Confidential Information. Copyright, trade secret, or similar notices, or confidentiality notices or proprietary legends shall not be removed from any materials. Customer and Teleflora each understand and agree that the disclosure of the other party s Confidential Information may cause irreparable injury to such other party. In the event of a breach or threatened breach of the obligations of this Section 11 and notwithstanding anything to the contrary elsewhere in this Agreement, either party shall be entitled an injunction restraining the disclosure of its Confidential Information. The provisions of this Section 11 shall survive cancellation or termination of this Agreement. 11 General. 11.1 Amendments. Amendments to this Agreement shall be valid only when made in writing and executed by the authorized representative of both parties. 11.2 Assignment. Teleflora may delegate or assign this Agreement or any of its obligations under this Agreement without the written consent of Customer. Customer may assign this Agreement to any of its subsidiaries or affiliates included in the definition of Customer or to any entity which acquires substantially all of its operations or assets which are affected by use of the Software. Any other transfer or assignment by Customer of this Agreement is prohibited and shall be null and void. 11.3 Governing Law, Jurisdiction and Venue. This Agreement and the performance of the parties of their obligations under this agreement shall be governed by and construed in all respects under the laws of the State of California. Any lawsuit arising out of the performance or breach of this Agreement shall be brought in a court of competent jurisdiction within the State of California, and each party acknowledges that it is subject to personal jurisdiction within the State of California. 11.4 Notices. Notice and other communications by a party to this Agreement will be deemed to have been given only if in writing and delivered by certified U.S. mail as evidenced by the return receipt, or by hand delivery or overnight courier as evidenced by the confirmation or affidavit of the courier, to the address(es) of the receiving party as stated on the signature page to this Agreement or to such other address(es) as either party may direct according to this Section 13.4; or by facsimile transmission directed to the person identified below at the fax number given, or to such other person or fax number as may be directed pursuant to this Section 13.4. 11.4 Severability. If any provision of this Agreement is held to be unenforceable or illegal for any reason, it shall not affect the validity or enforceability of the remaining provisions of the Agreement, and the parties shall negotiate in good faith to achieve a new legally enforceable provision which most closely approximates the lawful, original intent of the invalid provision. {013712.3} 4
Page 5 of 6 11.5 Sole Agreement. This Agreement, including its Exhibits, supersedes all prior agreements, understandings and negotiations with respect to the subject matter contained herein and constitutes the entire agreement between the parties with respect to the subject matter contained herein. 11.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the permitted successors or assigns of either party. 11.7 Partial Invalidity. If any provision of this Agreement shall be held invalid or unenforceable by competent authority, such provision shall be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it shall then appear. The total invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 11.8 Force Majeure. Teleflora shall not be liable for failure to perform hereunder due to the inability of Customer or any other person to connect to the Internet, or any other failure or unavailability of Internet connectivity or availability for any cause whatsoever, fiber optic cable cuts, interruption or failure of digital transmission links, hacker attacks, acts of God or nature, or any other cause beyond the control of Teleflora or Teleflora's exercise of its rights under this Agreement. 11.9 Attorneys Fees. In the event of any litigation between the parties in connection with this Agreement, the unsuccessful party to such litigation shall pay to the successful party all costs and expenses, including, without limitation, actual attorneys' fees and costs incurred by such successful party, which costs and expenses shall be included as a part of any judgment rendered in such action in addition to any other relief to which the successful party may be entitled. {013712.3} 5
EXHIBIT B Page 6 of 6 Description of Router, Software, Managed Services, Fees Router: Software: Installation: Testing : Monitoring: Tier 1 Support: Tier 2 Support: Netgear FVS338NA Prosafe VPN Firewall Router Managed Viruscan Software by McAfee, Inc. Teleflora technicians will install or walk the customer through the steps to take to install the Software and Router in accordance with manufacturer specifications. Once the Software and Router have been installed the Teleflora technician shall confirm the installation by demonstrating against the industry inert virus eicar and running an Internet port scanner on the network. The customer will be able to print the page or otherwise see that the operation of the Software and Router. Teleflora current practice is to review reports from the McAfee Network Operation Center (NOC) on a regular basis. Teleflora may, from time to time, contact the Customer if it NOC reports reflect a abnormally high rate of reportable incidents and if Teleflora determines that contacting the Customer is necessary to prevent immediate and materially adverse impacts. Teleflora is not obligated to contact the Customer and will do so at its sole discretion. Teleflora will provide "Tier 1 Support," as required by McAfee, for the Customer. McAfee's standards require Teleflora to work with Customers who pose questions concerning the Software or otherwise need assistance. If the first technician contacted is unable to assist the customer in a timely manner the Customer may be transferred to a more specialized or senior technician for resolution (a "second level technician"). The Customer may be asked to wait for a call back from a technician. Teleflora may, in its discretion, transfer the Customer directly to a second level technician group for assistance. Each additional request for assistance from the customer will start the process with first level. Once a customer issue has been escalated to a second level technician the Customer will work towards resolution with that second level technician or another second level technician. Teleflora will attempt to keep the Customer with the same technician working the issue through resolution. Technical issues that are not resolved through Tier 1 or Tier 2 support shall be referred directly to McAfee. Fees Managed Services: Router: Billing: The Customer shall pay a monthly fee of Ten Dollars ($10) for support, which fee may be adjusted from time to time at Teleflora's discretion upon not less than thirty (30) days prior notice. The fees for the Software are included within the fees for Managed Services. The Customer shall be charged separately for the Router. All fees and costs due under this Agreement shall be billed through Teleflora's monthly clearinghouse statement. Teleflora's Rules and Regulations shall apply to the billing and payment of fees for Managed Services. {013712.3} 6