This Agreement contains the terms and conditions that shall apply to anyone who joins our Affiliate Program. Please read over them carefully.
This Agreement contains the terms and conditions that shall apply to an individual's or an entity's (hereinafter a "Participant," "Affiliate Site," or "Affiliate Member" or "you" or "your") participation in the affiliate program (the "Program") of Cherry Blossoms, Inc., a Hawaii corporation (hereinafter "Blossoms," "Cherry Blossoms," "CBI" or "we," "its," "us," "our" or "the Company").
Eligibility. To become an affiliate of Cherry Blossoms, Inc., you must submit an accurate and complete application ("Application") to Cherry Blossoms via our Website. If you are an individual, you must be at least 18 years of age (or the age of majority in your resident state, locality or jurisdiction) to become an affiliate member. Cherry Blossoms, Inc. will evaluate an affiliates Application in good faith and will notify you of your acceptance or rejection thereto. Cherry Blossoms, Inc. may reject an affiliates Application, or terminate their participation in the Cherry Blossoms' Affiliate Program, if Cherry Blossoms, Inc. (in its sole discretion) determines that:
You are unsuitable for the CBI affiliate program for any reason, including but not limited to inclusion or promotion of images or content that, at any time, is in any way unlawful, harmful, threatening, defamatory, libelous, obscene, harassing, hate-oriented, or racially, ethically or otherwise objectionable such as Web sites that depict sexually explicit images, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age. Also Web sites that promote illegal activities, offer any illegal good or service (or link(s) to a Web site(s) that does so) or incorporate any materials which infringe or assist others to infringe any copyright, trademark or other intellectual property rights (collectively "Content Restrictions"), or
You engage in spamming, indiscriminate advertising, unsolicited mailing of commercial email(s), or hacking of email(s).
Upon approval by Cherry Blossoms, Inc. for acceptance into its Affiliate Program, you may display (and remove) links to Cherry Blossoms Web Site or Web Site content in accordance with the Terms of this Agreement. Your continuing compliance with this Agreement is a condition to your continuing participation in the Affiliate Program. Cherry Blossoms, Inc. reserves the right to review and audit an Affiliates Web Site from time to time to determine your continued compliance with this Agreement. Your Web site must be and remain fully functional and we may reject or terminate you from the Affiliate Program if your Web Site is not live or is under construction, if such Web site is a personal homepage or personal Web site, or if such Web site violates any of the Content Restrictions set forth hereinabove.
Enrollment in the Affiliate Program. To begin the automated enrollment process, you must submit a completed Affiliate Network Application via our Web site. We will notify you by email of your acceptance.
Links. For the purposes of this Agreement, "Link(s)" means any data or any software code that Cherry Blossoms, Inc. makes available to an approved Affiliate that is used for linking from an Affiliates Web Site to web pages on Blossoms.com, and subject to approval from Cherry Blossoms, Inc. These "Links" or "Link" may contain banner advertisements, button links and/or text links, or other graphics or devices. Cherry Blossoms, Inc. may, in its sole discretion, consider written requests to use other serving mechanisms, on a case by case basis. An Affiliate shall not alter, modify or expand the Link(s) in any way. Each Link connecting users of an Affiliates' site to a Cherry Blossoms' site may not alter the look, feel or functionality of the Cherry Blossom's site. Cherry Blossoms, Inc. will not be responsible for errors that occur in the tracking of transactions if an Affiliate has made or caused any such modification. We may monitor an Affiliate's site from time to time to determine if an Affiliate is in compliance with the terms of this Agreement. CBI reserves the right to approve and to prohibit all Links.
General Links. An Affiliate shall only post Link(s) approved by Cherry Blossoms, Inc. Approved Link(s) will be made available to an Affiliate upon the Affiliate's acceptance into the Affiliate Program. Any deviations from the guidelines and treatment described in this Agreement must be approved in advance and in writing by Cherry Blossoms, Inc. The Company may at any time, without prior notice, remove the Links described above, or require an Affiliate to remove the Link(s) mentioned. We reserve the right to approve and prohibit all link(s).
Email Links. "Spamming," including the sending of unsolicited electronic communications, will not be tolerated and may lead to termination of this Agreement. You will not be entitled to any payout generated through Spamming tactics. An Affiliate shall comply with any and all regulations, statutes and applicable laws of the United States or any other state, country or jurisdiction related to email, and/or electronic communications. It is the Affiliate's responsibility to be aware of all such regulations, statutes and laws.
Prohibited Uses of Links.
Locations. You may not place a Link(s) to Cherry Blossoms, Inc. Website or Website content in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, line farms, counters, chat rooms, or guest books. An Affiliate using IRC channels (Internet Resource Channels), instant messages or similar Internet Resources must designate their program as special requiring manual review and acceptance by Cherry Blossoms, Inc.
Non-Bona Fide Transactions. An affiliate may not mislead or misdirect the Visitor, and all included Link(s) must deliver bona fide transactions by the Visitor to Cherry Blossoms' Website from the Link. You shall not cause any transactions to be made that are not in good faith, including but not limited to, using any spyware, device, program, robot, I frames, hidden frames, redirects, spam, spiders, computer script or any other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing the action. An affiliate may or may not be compensated for transactions where the affiliate or its agent is the Visitor. Multiple leads from the same individual, entity or IP address may be considered non-bona fide transactions. You shall not earn payouts for non-bona fide transactions. You may NOT Link to, display or by any other method utilize any photos, videos or any other information pertaining to any of our member(s) on your site. You are strictly prohibited from using any spyware or sexually explicit ads or promotions to advertise our sites, goods, and services.
Infringement. None of an Affiliate's promotional activities may infringe a third party's proprietary rights (including but not limited to trademark rights), Cherry Blossoms, Inc.'s proprietary rights, or a third party's proprietary rights. Specifically, an Affiliate may not use proprietary trademarks or service marks in any way, including but not limited to purchasing keywords from a search engine provider that include the trademark, service mark, brand name or any derivative thereof, to direct traffic to the Cherry Blossoms, Inc. Website or sites.
Updating Links. If Links are not dynamically updated through the Service, upon notification an affiliate is obligated to update such Links in order to earn payouts.
Affiliate Obligations to Cherry Blossoms, Inc.
Accurate Information. Affiliate agrees to provide Cherry Blossoms, Inc. with accurate information about the Affiliate and the Affiliate's promotional methods, and to maintain up-to-date "Account" information (such as contact information, Web sites used, etc.). Affiliate must accurately; clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary.
Affiliate will be solely responsible for the development, operation and maintenance of its website(s) and for all materials that appear on their site or sites. The registration or contact information pertaining to any affiliate's site(s) shall contain current and accurate contact information so that a third party could have a reasonable expectation of reaching an affiliate during normal business hours by telephone, mail, facsimile and/or email. CBI shall have no responsibility for the development, operation and maintenance of your site and for all materials that appear on an affiliate site(s).
Use of Links. Affiliate hereby represents and warrants that all promotional means used by Affiliate will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal and /or promoting illegal goods, services or activities), and that an Affiliate will not mislead others. Affiliate agrees to:
use ethical and legal business practices,
comply with the terms of this Agreement,
maintain a privacy policy on Affiliate's Website and for any non-Website based promotional method made available to Visitors,
Privacy. Affiliate must conspicuously post Affiliate's privacy policy on Affiliate's Website and otherwise make it available to all Visitors. Affiliate's privacy policy must comply with the laws and regulations regarding the privacy of Visitor information, be commercially reasonable, and fully and accurately disclose an Affiliate's collection and use of Visitor information. Affiliate must fully and accurately disclose Affiliate's use of third party technology, including Cherry Blossoms, Inc. tracking technology, use of cookies and options for discontinuing use of such cookies.
That Cherry Blossoms, Inc. must approve all of an Affiliate's promotional activities and may deem an Affiliate's promotional activities inappropriate and a material breach of this Agreement. CBI may review Affiliate's conduct, and any suspected fraudulent, abusive or otherwise illegal content or activity by an Affiliate through an Affiliate's promotional methods, is grounds for immediate termination of this Agreement and deactivation of an Affiliate's Account with Cherry Blossoms, Inc.
Third Party. An affiliate must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible for an affiliate's use of another party's copyrighted or other proprietary material s in violation of the law.
We reserve the right to terminate this Agreement without pay and without notice in the event that we determine that an Affiliate is violating a third party's intellectual property rights.
We reserve the right to cooperate in any investigation (including third party investigations by governmental entities) relating to activities involving your conduct or any violation of these Terms and Conditions, including, but not limited to, disclosure of your account information to third parties in connection therewith, when, for example, your registration and/or contact information is not current or accurate.
Promotional Methods. Affiliate hereby represents and warrants that Affiliate will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM Act of 2003 (Public Law 108-187 or any successor legislation), and/or any other laws and/or regulations that govern email marketing and/or communications. Affiliate will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/under advertising delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
Personally Identifiable Information of Visitors. Affiliate hereby represents and warrants that Affiliate will not enable the Tracking Code to collect personally identifiable information of Visitors that would allow Cherry Blossoms, Inc. to personally identify Visitors.
Applicable Codes and Code Maintenance. For purposes of optimization and in order for Cherry Blossoms, Inc. to record the tracking of Visitors' transactions resulting from clicks on Links, an Affiliate must include and maintain a Cherry Blossoms, Inc. "Tracking Code" within the Links. All Links and all advertisements ("Ad Content") must be in a Service compatible format provided to Affiliate by Cherry Blossoms, Inc.
Usage and Security of Account. Affiliate shall be responsible for all usage and activity on Affiliate's Account and for loss, theft or unauthorized disclosure of Affiliate's password. Affiliate shall provide Cherry Blossoms, Inc. with prompt written notification of any known or suspected unauthorized use of Affiliate's Account or breach of the security of Affiliate's Account.
Payout. Cherry Blossoms, Inc. will pay affiliates a commission fee of 75% of the new membership sale up to $89.96 per order. For a product sale to be eligible to earn a referral fee, the customer must follow an affiliate link from the Affiliate to Cherry Blossoms.com., register as full service member and make a purchase through the CherryBlossoms.com website. Referral fees apply to first orders only. No fees will be paid on rebilling, upgrade or other repeat sales. Referral fees are paid in US dollars. All affiliates will be paid monthly by company check or PayPal. There is a minimum commission payment of $50.00. If the commissions accrued by an Affiliate are less than $50.00, Cherry Blossoms, Inc. will hold an Affiliate's commission until the total amount accrued is at least $50.00
Refunds and Chargebacks. If a commission is paid to an Affiliate and the membership is later refunded, the corresponding commission will be deducted from the Affiliates next commission payment. If there are no further commission fees due to an Affiliate, CBI will send the Affiliate a bill for the amount of the Disputed Commission and the Affiliate agrees to pay such bill no later than thirty days after its receipt.
No activity. If an Affiliate has not earned or accrued fees of at least $50.00 in a consecutive six-month period, CBI reserves the right without waiver or notice to the Affiliate to terminate the Affiliate's membership in the Affiliate Program of CBI.
Tax Information Policy. If you are based in, and pay taxes in the United States, you are required to submit an Internal Revenue Service (IRS) form W-9, for which a United States Tax ID Number (TIN) or Social Security Number is required. Until CBI receives your current tax information, we will hold all payments to you.
Policies. Cherry Blossoms, Inc. may change its policies, terms and operating procedures at any time and your continued use of the Affiliates program is your agreement to the change or modified policies, terms and operating procedures.
Pricing. Our products, services, availability and pricing may vary from time to time. Because price changes may affect items that you already have listed on your site, you may not include price information in your descriptions or advertising. CBI will use reasonable efforts to present accurate information, but we will not guarantee the availability or price of any particular service or product.
Ownership of Customer. Customers who buy memberships through our Affiliate Program will be deemed to be customers of Cherry Blossoms, Inc. and its entities. Accordingly, all CBI's rules, policies, terms and operating procedures concerning all aspects of the customer relationship including, but not limited to, customer orders, customer service and sales will apply to those customers.
Fraudulent Activity. Cherry Blossoms, Inc. actively monitors traffic for fraud. If fraud is detected, an Affiliate's Account will be made inactive pending further investigation. Affiliate Accounts are flagged due to or including:
Click-through or conversion rates that are higher than industry averages and where solid justification for such high click-through or conversion rates are not evident to the reasonable satisfaction of Cherry Blossoms, Inc.
Affiliates Clicks or Lead generation programs generate Clicks or Leads with no indication by site traffic that it can sustain the Clicks or Leads reported.
Affiliates used an incentive or enticement to procure Clicks or Leads.
Affiliate has provided Leads obtained other than through the intended Visitor action. For instance, use of phone books, or similar such compilations of personal data, to complete Lead registrations shall be considered fraudulent behavior.
Use fake redirects, false advertising, automated software, and/or other fraudulent mechanisms to generate Leads or Clicks.
If Affiliate fraudulently adds Leads or Sales or inflates Leads or sales by fraudulent traffic generation (such as pre-population of forms or mechanisms not approved by Cherry Blossoms, Inc. or use of sites in co-registration campaigns that have not been approved by an advertiser), as determined solely by Cherry Blossoms, Inc., the Affiliate will forfeit its' entire Payout for all Leads and Clicks and their Account will be terminated. If an Affiliate is notified that fraudulent activities may be occurring, and an Affiliate fails to take prompt action to stop such fraudulent activities, then, in addition to any other remedies available to Cherry Blossoms, Inc., an Affiliate shall be responsible for all costs and legal fees arising from these fraudulent activities. In addition, in the event that an Affiliate has already received a Payout for fraudulent activities, Cherry Blossoms, Inc. reserves the right to seek credit or remedy from future earnings or to demand reimbursement from the Affiliate.
Proprietary Rights.
Use of Logos and Trademarks. Affiliate grants CBI a non-exclusive license to utilize Affiliate's names, titles, trademarks, service marks, trade names, and/or copyrighted material and to advertise, market, promote and publicize in any manner our rights hereunder. We shall not be required to so advertise, market or promote or publish, that an Affiliate provides Cherry Blossoms Inc. through an Affiliate's Account to promote Publisher's participation in the Affiliate Program.
Publisher's Use of Cherry Blossom's Proprietary Rights. Affiliate agrees that Affiliate's use of any Cherry Blossoms Website and/or Cherry Blossoms, Inc. trademarks, service marks, trade names, and/or URLs is subject to the license and terms of use that are available from such Website ("Terms of Use"). Affiliate explicitly agrees not to adopt or use in any manner any trademarks, service marks, trade names, and/or URLs that are the same or confusingly similar to, or are combined with those of Cherry Blossoms Inc. In addition, Affiliate agrees not to use the Cherry Blossoms, Inc. trademarks, logos, trade names in any manner that is disparaging or that otherwise portrays Cherry Blossoms, Inc. in a negative or misleading light. We reserve all of our rights in the Cherry Blossoms, Inc. marks, and all other intellectual property rights thereto. We may revoke the rights granted an Affiliate pursuant to this section at any time by giving you written notice.
Lead/Data Ownership. Unless otherwise mutually agreed to by Cherry Blossoms, Inc. and the Affiliate, any additional Visitor data (beyond any data collected in the Visitor registration process) shall be solely owned by Cherry Blossoms, Inc. and the Affiliate shall not track, copy or store any such data (collectively with data collected in the Visitor registration process, the "Lead Data"). Additionally, and Lead Data submitted to Cherry Blossoms Inc. by the Publisher shall be exclusive and under no circumstances shall an Affiliate sell Lead Data to other third parties (including other publishers/affiliates). In order to deter the resale of Lead Data by an Affiliate, Cherry Blossoms, Inc. reserves the right to create a "seeding" process to monitor its Affiliates and to ensure Affiliate compliance with the terms herein. "Seeding" is the practice of intentionally submitting a unique set of data as part of a list for the purpose of tracking the use of that data.
No Challenge to Cherry Blossom's Intellectual Property Rights. Affiliate acknowledges that Affiliate obtains no Intellectual Property Rights in Cherry Blossom's trademarks, service marks, trade names, URLs, copyrighted materials, patents, and patent applications, and agrees not to challenge Cherry Blossoms Inc.'s proprietary rights. For the purposes of this Agreement, "Intellectual Property Rights" means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other country, district or jurisdiction.
Confidentiality.
Obligations. Affiliates or Cherry Blossoms, Inc. may provide each other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information that:
Is or becomes part of the public domain through no act or omission of the receiving party.
Is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty.
The receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, Affiliate must destroy or return to Cherry Blossoms, Inc. any Confidential Information provided by Cherry Blossoms Inc. to an Affiliate under this agreement.
Provision of Confidential Information to Third Parties. Affiliate agrees that Cherry Blossoms, Inc. may provide any and all Visitor, Transaction and/or Tracking Code data to any third party at Cherry Blossoms Inc.'s sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement. Cherry Blossoms Inc. reserves the right to be able to utilize Tracking Code Data provided to it, which may include:
Information about Affiliates' performance statistics
Analysis of Service trends
Monitoring Service efficiencies
Maintaining the integrity of the Tracking Code
Promotion of Service capabilities and efficiencies.
Term, Termination and Deactivation.
Term. The term of this agreement will begin upon CBI's acceptance and approval of your Affiliate application and will end when terminated by either party. Affiliates must provide the required information, indicating they have received and agree to the terms of this Affiliate Program.
Termination. This Agreement may be terminated by either party at any time. Notice sent by email, to the address in our records, is considered sufficient notice to terminate this Agreement. Notwithstanding the foregoing, Cherry Blossoms, Inc. may terminate an Affiliate, an Affiliate's Website or an Affiliate's use of a promotional method or material at any time at Cherry Blossoms, Inc.'s sole discretion. Breach of any Section of this Agreement is cause for immediate termination of this Agreement. In addition, an Affiliate's Account may be deactivated during investigation of breach of this Agreement. If this Agreement is terminated based upon an Affiliate's breach, the Affiliate shall not be eligible to enter into a new Affiliate Service Agreement with Cherry Blossoms, Inc. and any attempt to do so shall be null and void.
Deactivation by Cherry Blossoms Inc. Cherry Blossoms Inc. may temporarily deactivate or terminate an Affiliate's Account if:
Affiliate or Affiliate's agent are responsible for the improper functioning of Ad Content, or if Affiliate otherwise interferes with and/or fails to maintain the Tracking Code.
Affiliate's Account has not been logged into and/or there have been no Transactions credited to Affiliate's Account for any thirty (30) day period.
Cherry Blossoms, Inc. determines Affiliate is diluting, tarnishing or blurring Cherry Blossoms. Inc.'s Intellectual Property Rights.
Affiliate begins proceedings to challenge Cherry Blossoms, Inc.'s Publisher.
A third party disputes Affiliate's right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or goods offered on Affiliate's Website, or through any of Affiliate's promotional means. Upon termination of this Agreement, or in case of deactivation of Affiliate's Account, Affiliate shall no longer accrue Payouts, including but not limited to subsequent sales that occurred prior to termination.
Post-Termination. Upon termination of this Agreement, any outstanding Payouts shall be paid by Cherry Blossoms, Inc. to Affiliate within ninety (90) days of the termination date. Upon termination of this Agreement, any permission granted under this Agreement will terminate, and an Affiliate must immediately remove from their site all links, logos, trade or service marks to Cherry Blossoms, Inc. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
Representations, Warranties, Disclaimers and Limitations.
Business Operations. Each party will make reasonable commercial efforts to keep its Website operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other liable for any of the consequences of such interruptions. Cherry Blossoms, Inc. may modify the Program or Service, or discontinue providing the Program or Service, or any portion thereof, at any time.
Authority. Affiliate represents and warrants that it has the necessary and full rights, power, authority and capabilities to enter into this Agreement and to perform its obligations hereunder and that the execution of and performance of its obligations under this Agreement will not violate the rights of any third party, nor any applicable federal, state and/or local law or regulation. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
Non-infringement Warranties. Affiliate represents and warrants that:
Affiliate has all appropriate authority to operate, and to any and all content on, Affiliate's Website(s).
Affiliate has all appropriate authority in any promotional method Affiliate may choose to use.
Affiliate's Website(s) and Affiliate's promotional methods do not and will not infringe a third party's or Cherry Blossoms, Inc.'s proprietary rights.
Affiliate shall remain solely responsible for any and all Websites owned and/or operated by Affiliate and all of Affiliate's promotional methods. Cherry Blossoms, Inc. may or may not review all content on Affiliate's Website or Websites used by Affiliate in Affiliate's promotional methods.
Compliance with Laws. Affiliate is responsible for compliance with the requirements of all relevant legislation (including subordinate legislation and the rules of statutorily recognized regulatory authorities) in force or applicable in the United States or in any other applicable territory, and warrant that no promotion method used by Affiliate or the content of Affiliate's Website(s) will render Affiliate liable to any proceedings whatsoever.
Limitation of Liabilities. Cherry Blossoms, Inc. will not be liable for indirect, incidental, special or consequential punitive or multiple damages, including without limitation any damages resulting from loss of use, loss of business, loss of revenue, loss of profits, or loss of data, arising in connection with this Agreement. Any obligation or liability of CBI, under this agreement shall be limited to the total of an Affiliate's payouts paid by Cherry Blossoms, Inc. under this agreement during the year preceding the claim to the Affiliate. CBI shall not be liable to you, or any third party (including but not limited to a claim by another affiliate/publisher of the network service), for any consequential, exemplary, special, incidental or punitive damages, including, but not limited to, loss of goodwill, loss of profits, business interruption, loss of programs or other data, even if advised of the possibility of such damages or claims. Any discrepancies or errors must be brought to our attention within 30 days or else they will be deemed permanently waived.
Disclaimer of Warranties. CBI makes no express or implied warranties or representations with respect to the Affiliate Program or any product or service sold through it. We make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any service interruptions or errors. Affiliates acknowledge and agree that under no circumstances shall Cherry Blossoms, Inc., its employees, independent contractors, authors, agents, representatives, assigns and successors be liable to you, or any other person or entity, for any direct or indirect losses, injuries, special or incidental or consequential damages of any kind. In the event of any internet network downtime, computer or technical error CBI will not be held responsible for any lost hits, signups, traffic or income.
Merchantability, fitness for a particular purpose or non-infringement of third party rights.
That there are no viruses or other harmful components
THAT CHERRY BLOSSOMS, INC.'S SECURITY METHODS WILL BE SUFFICIENT
REGARDING CORRECTNESS, ACCURACY OR RELIABILITY
Cherry Blossoms, Inc.'s Indemnification Obligations. Affiliate shall defend, indemnify and hold Cherry Blossoms, Inc. harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, directly or indirectly as a result of:
Affiliate's breach of or non-compliance with this Agreement.
Affiliate's violation of any law or an alleged violation of law by Cherry Blossoms, Inc., that is a direct or indirect result of Affiliate's participation in the Affiliate Program.
Affiliate's use of the Service
Affiliate's participation in any Program, Service or Network.
Any content, goods or services offered, sold or otherwise made available by Affiliate to any person.
Affiliate's acts or omissions in using, displaying or distributing any internet links obtained from the Affiliate or elsewhere, including but not limited to Affiliate's use of internet links via email distribution.
Any claim that Cherry Blossoms, Inc. is obligated to pay tax obligations in connection with payment made to Affiliate pursuant to this Agreement.
Any violation or alleged violation by Affiliate of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 14, Cherry Blossoms, Inc. shall promptly notify Affiliate, and Cherry Blossoms, Inc. shall be entitled, at its own expense, and upon reasonable notice to Affiliate, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Affiliate's obligations to indemnify or hold Cherry Blossoms, Inc. harmless. Affiliate shall not settle any Claim without Cherry Blossoms, Inc.'s prior written consent. Affiliate also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 14. In the context of this Section 14 only, the term "Cherry Blossoms, Inc." shall include Cherry Blossoms Inc.'s officers, directors, employees, corporate affiliates, subsidiaries, agents and subcontractors.
Miscellaneous.
Reserved Rights. All rights not expressly granted herein by Cherry Blossom, Inc. to Affiliate are reserved by Cherry Blossoms, Inc. There are no implied rights.
Notice. Any notice provided for or permitted under this Agreement will be treated as having been given when:
Delivered personally.
Sent by email or confirmed fax.
Sent by nationally recognized commercial overnight courier with written verification or receipt.
Mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the physical address listed on Affiliate's Account (effective upon mailing), in the case of Affiliate.
Waiver. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
Enforceability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
Governing Law. This Agreement shall be governed by and construed under the laws of the State of Hawaii.
Third Party Disputes. In the event of a third party claim against either:
Cherry Blossoms, Inc.'s intellectual property or
Against Cherry Blossoms, Inc.'s right to offer any service or good on Cherry Blossoms, Inc.'s Website(s), or if in Cherry Blossoms, Inc.'s opinion, such a claim is likely, Cherry Blossoms, Inc. shall have the right, at its sole option and in its sole discretion to:
Secure the right at Cherry Blossoms, Inc.'s exp FIX
Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint ventures or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor.
Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, an Affiliate's consent shall not be required for assignment or transfer made by Cherry Blossoms:
Due to operation of law
To an entity that acquires substantially all of Cherry Blossoms Inc.'s stock, assets or business,
To a related entity (e.g. parent or subsidiary of parent). Affiliate's participation in the Program is irrefutable acknowledgement by Affiliate that Affiliate has read, understood and agreed to each and every term and provision of this Agreement. Cherry Blossoms, Inc. may establish rules and regulations from time to time regarding participation in the Affiliate Program as published on the website and incorporated herein.
Marketing. Affiliate agrees that Cherry Blossoms, Inc. may identify it as a Cherry Blossoms Affiliate in client lists and may use Affiliate's name and/or logo solely for such purpose in its marketing materials. Any other uses of Affiliate's name and/or logo not otherwise described or contemplated herein shall require Affiliate/Publisher's prior written consent.
Headings. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole.
Benefit. Except as may be otherwise specifically provided in this Agreement, this Agreement is not intended to and shall not confer upon any other person or business entity, other than the parties hereto, any rights or remedies with respect to the subject matter hereof.
Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet Service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
Entire Agreement, Assignment and Amendment. This agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. CBI may modify any of the terms and conditions contained in this Agreement, at anytime and at our sole discretion. Notice of any change by the email address you provided, to your address in our records, or the posting on our website of a change notice or a new or modified agreement, is considered sufficient notice for notifying an affiliate of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Affiliate rules. All such modifications may take effect immediately after we serve notice as described above, unless we indicate otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program, following our posting of a change notice or new or modified agreement on our site, will constitute binding acceptance of the change(s).
