CHERRY CULTURE AFFILIATE AGREEMENT

This agreement contains the complete terms and conditions that apply to a party’s participation as an Affiliate Program (the “Program”) of Cherry Culture, a California corporation. As used in this Agreement, “we”, “us”, “our”, “CherryCulture.com”, and “Merchant” means Cherry Culture and “you”, “yours” and “Partner” means the applicant party, (each referred to herein as a “Party” and collectively as the “Parties”).

1. Background

a. Partner owns, license and provides certain service via the Internet through a Web site owned and operated by Partner (“Partner Site”)
b. Merchant provides certain services and sells certain products via the Internet through a Web site owned and operated by Merchant currently located at www.cherryculture.com (the Merchant Site”)
c. Partner and Merchant desire to enter into a strategic affiliate relationship to promote the Merchant Site to users of the Partner Site (the “Partner Users”) in accordance with the terms and conditions of this Agreement and in exchange for the consideration recited herein.

To begin the enrollment process, you must submit a complete Affiliate Program application at our Site. We will evaluate your application and promptly notify you of your acceptance or rejection. We may reject your application if we determine, in our sole discretion, that your Web site is not suitable for the Program for any reason, including but not limited to, inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically, or otherwise objectionable, or that includes or promotes sexually explicit materials, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. If we reject your application, you may reapply to the Program at any time. However, we may, at our discretion, permanently bar you from participation on the Program if your Site or business is inconsistent with our objective or the operation of our Program. If we do so, we will inform you of our decision.

As an Affiliate Program member, we will make available to you a variety of URLs or graphic and textual links (each of these links referred to herein as “Links” or, individually, as a “Link”), which, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your Site as you desire. The Links will serve to identify Your Site as a member of our Program.

In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You agree not to alter Links or their content in any way. You also agree that you will display in your Site only those graphic or textual images that are provided by us, and you will immediately substitute such images with any new images that are provided by us from time to time throughout the term of this Agreement. Each Link connecting Users of your Site to the pertinent are of our Site will in no way alter the look, feel or functionality of your Site.

You agree not to buy or encourage others to buy CherryCulture.com products through you links for subsequent resale.

4. Merchant’s Responsibilities

We will be responsible for providing all information necessary to allow you to make appropriate Links from your Site to our Site. We will be solely responsible for processing every order placed by a User following a special Link from you Site, for tracking the amount of sales generated by your Site, and or providing information to Affiliate Sites regarding sales statistics. We will be responsible for order entry, payment processing, shipping, cancellation, returns, and related customer service.

Security: Each party shall employ commercially reasonable security safeguards to protect User Information from loss, misuse, and unauthorized alteration during its storage, processing and transmission, including the use of commercially available computer security products, as well as industry standard security procedures and practices.

Privacy: Each party shall comply with its respective privacy policies and statements in handling, using and disclosing any User Information.

Commission Determination: Merchant will pay Partner the commission when the following conditions are met: (1) products are sold by us. (2) purchased by Users linking to our Site from your Site pursuant to a Qualifying Link (is link from the Partner Site to the Merchant Site using one of the Required URLs or any other URL provided by Merchant. (3) products are shipped by us, and (4)a full payment was received by Merchant.

Commission Rate: The commission rate is 8% of final net sales, depending on the sales amount you make each month.

Commission Payment: Once your account reaches the payment minimum limit of one hundred and twenty dollars ($120) a commission payment in form of store credit will be issued to you. Commissions are paid on a quarterly basis and will be provided in the form of an electronic gift certificate.

Payment Schedule: March 15th, June 15th, September 15th, December 15th.

You will be given access to a password-protected Site to receive your sales statistics on a weekly basis.

Policies and Pricing

Users who purchase CherryCulture.com products through the Program will be deemed to be customers of CherryCulture.com. All rules, policies, terms and conditions and operating procedures concerning customer orders, customer service, and CherryCulture.com product sales will apply to those customers.
We may change our policies and operating procedures, including pricing, at any time. Prices and availability of CherryCulture.com products may vary from time to time. We do not guarantee the availability or price of any particular product.

The parties hereby agree that any press, marketing or advertising releases of either party that refer to the other party or the other party’s products or services shall not be released or disseminated without the prior approval of the other party, and such approval will not be unreasonably withheld or delayed.

a. CHERRY CULTURE GRANTS YOU, DURING THE TERM OF THIS AGREEMENT, A NONEXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO (i) ACCESS OUR SITE THROUGH THE LINKS SOLELY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND (ii) SOLELY IN CONNECTION WITH SUCH LINKS, TO USE THE IST TRADEMARK AND LOGO AND SIMILAR IDENTIFYING MATERIAL RELATING TO US BUT ONLY IN THE FORMS THAT WE PROVIDE TO YOU (COLLECTIVELY, THE "LICENSED MATERIALS"), FOR THE SOLE PURPOSE OF PROMOTING CHERRY CULTURE PRODUCTS AND SERVICES LINKING YOUR SITE TO OUR SITE, WHERE YOUR CUSTOMERS CAN PURCHASE CHERRY CULTURE PRODUCTS AND SERVICES. YOU MAY NOT ALTER, MODIFY, OR CHANGE THE LICENSED MATERIALS IN ANY WAY. WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS. YOU ARE ONLY ENTITLED TO USE THE LICENSED MATERIALS
TO THE EXTENT THAT YOU ARE A MEMBER IN GOOD STANDING OF THE AFFILIATE PROGRAM.
WE RESERVE ALL OF OUR RIGHTS IN THE LICENSED MATERIALS AND ANY OTHER MATERIALS WE MAY PROVIDE TO YOU. WE MAY REVOKE YOUR LICENSE AT ANY TIME UPON WRITTEN NOTICE TO YOU
b. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays us in a negative light.
c. You grant to Cherry Culture a non-exclusive license to utilize your names, titles, and logos, as the same may be amended from time to time to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon expiration or termination of this Agreement.

a. You agree that you are solely responsible for, and we have no liability for, the development, operation, or maintenance of your Site or for any materials contained on your Site. Such responsibilities include, but are not limited to, the technical operation of your Site and all related equipment; creating and posting service reviews, descriptions, and references on your Site and linking those descriptions to our Site; the accuracy and propriety of materials posted on your Site (including, but not limited to, all CherryCulture.com product related materials); ensuring that materials posted on your Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability for such matters. You further agree to defend and indemnify Cherry Culture, our parent and affiliate companies, and our and their officers, directors, employees and agents ("Indemnified Persons") from and against any and all claims, suits, damages, costs, liabilities, expenses (including attorneys fees and costs) arising out of or related to the development, operation or maintenance of your Site, or for any content contained on or in your Site.
b. You agree that your Site will not, in any way, copy or resemble the look and feel of our Site, nor will you create the impression that your Site is our Site or is a part of our Site, nor will you frame any page on the Cherry Culture Site being viewed by a user of your Site who links to the Cherry Culture Site through a Link.
c. You represent and warrant that your Site does not currently contain and will not contain any content, or links to any material that is in any way unlawful, infringing, harmful, threatening, harassing, defamatory, obscene, or violent.
d. You also agree that your Site will not contain any content from our Site or any materials that are proprietary to us or any of our affiliates except with our prior permission, or to the extent that materials are obtained by you strictly in accordance with the provisions of this agreement. You further agree that your domain name does not and will not contain the words
"CherryCulture.com", "CherryCulture", "Cherry Culture" or any variation thereof (collectively, the Cherry Culture marks") or misspelling. You agree not to purchase or otherwise contract with any third party to exploit any of the Cherry Culture marks for the purpose of causing the Affiliate Site to appear as a search result or for any other reason.

The terms of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales occurring during the term, and commissions earned through the date of termination will remain payable only if the related Qualified Purchases are not cancelled or returned.
We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

We reserve the right to modify any terms and conditions contained in this Agreement at any time. You will be notified by email. We will also post a change of notice on the Cherry Culture Site. Modification may include, but are not limited to, changes of the scope of available commissions, commission schedules, payment procedures, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a change notice or new agreement on the Cherry Culture Site will constitute your binding acceptance of the change.

You and Cherry Culture are independent contractors, and nothing in this Agreement will create any partnership, join venture, agency, franchise, sale representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representation on our behalf.

a. Compliance Matters. Each party shall comply with all applicable laws governing its performance of and activities under this Agreement. You are and will be solely responsible for any recommendations or advice you may offer to your customers.
b. Mutual Representations and Warranties. Each party shall provide any services required by it pursuant to this Agreement in a workmanlike manner. Each party hereto represents and warrants to the other party that: (i) the execution, delivery, and performance of this Agreement shall not conflict with or result in any breach of or a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; (ii) that the use, reproduction, distribution, transmission, or display of its respective content and marks pursuant to this Agreement shall not constitute an Infringement, be defamatory or violate any third party’s rights of publicity, privacy or personality; (iii) you are an adult of at least 18 years of age.

You agree that all user information related to the Cherry Culture Affiliate Program belongs to us. You agree to protect as confidential all Cherry Culture Affiliate Program User information and Affiliate Program business, financial and sales information related to Cherry Culture or you (collectively, "Information"), not to disclose Information to any third parties, and not to use Information for any purpose other than the purposes of this Agreement. You agree to protect Information using methods at least as protective as those you use to protect your own information of a confidential nature, but in no event, using less than a standard of reasonable care. Your obligations under this paragraph 15 shall not apply to any portion of Information which is already freely publicly available through sources other than you.

CHERRY CULTURE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND YOU WAIVE ALL RIGHTS TO ANY CLAIMS FOR ANY SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF CHERRY CULTURE WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

You agree to indemnify and hold harmless Cherry Culture, our parent and affiliate companies, and our and their officers, directors, employees and agents, against any and all Losses insofar as such Losses, or actions in respect of Losses, arise out of or are based on (i) any claim that our use of Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you, or (iii) any claim related to your Site, including, without limitation, claims regarding content on your Site.

Our performance under this Agreement shall be excused to the extent that its performance is hindered, delayed or made commercially impractical by causes beyond its reasonable control. Neither party shall be liable to the other for a failure or delay in its performance of a required obligation pursuant to this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, Internet or telecommunications failures, or other causes beyond such party’s reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible and, provided further, that either party may terminate this Agreement upon delivery of written notice to the other party if such condition continues for a period in excess of sixty (60) days.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT USER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

This Agreement will be governed by the laws of the United States and the State of California, without reference to rules governing choice of law. Any action relating to this Agreement must be brought and maintained exclusively in the federal or state courts located in the State of California, and you irrevocably consent to the jurisdiction of such courts. Each of the parties hereby waives any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action or suit brought in the State of California.

You may not assign this Agreement. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.