Peach and Lily, Inc.

PEACH & LILY INC AFFILIATE AGREEMENT
This PEACH & LILY, INC Affiliate Agreement (the "Agreement") sets forth the complete
terms and conditions that apply to a party's participation in the Affiliate
Program (the "Program") of Peach and Lily, Inc., a Delaware limited
liability company corporation ("Peach & Lily"). As used in this Agreement, the
terms "we" and "Merchant" mean Peach & Lily, and the terms "you" and "Partner"
mean the applicant party (each referred to herein as a "Party" and
collectively as the "Parties").
Background
A. Partner owns, licenses, and provides certain services 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.peachandlily.com (the "Merchant Site").
C. Partner and Merchant are each enrolled in the ShareaSale network.
D. 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.
Enrollment
To begin the enrollment process, you must email us at hello@peachandlily.com with your website address and how you wish to promote Peach & Lily. We will
evaluate your application and notify you of your acceptance. 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. Unsuitable Web sites include, without
limitation, sites that contain, or link to, (i) sexually explicit,
pornographic, or obscene content (whether in text or graphics), (ii) speech
or images that are offensive, profane, hateful, threatening, defamatory,
libelous, harassing, or discriminatory (whether based on race, ethnicity,
creed, religion, gender, sexual orientation, physical disability, or
otherwise), (iii) graphic violence (which may include certain types of game
sites), (iv) content related to liquor, tobacco, firearms, drugs, gambling,
crime, or death, (v) politically sensitive or controversial issues (e.g.
abortion, capital punishment) or other political content (e.g. lobbyists,
political campaigns) or (vi) any unlawful behavior or conduct, including
materials that infringe our intellectual property rights or those of any
third party. 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 in the Program if your Site or business is inconsistent with
our objectives or the operation of our Program. If we do so, we will inform
you of our decision.
Terms And Conditions
In consideration of the promises set forth below, the parties agree as
follows:
1. Offers and Engagements
1.1. From time to time, Merchant may post on the ShareaSale network offers
to pay to other participants a specified commission in return for certain
advertising services leading to a Qualifying Link (defined below). If such
offers are accepted by both parties, they
will be deemed to be an "Offer" for purposes of this Agreement. The term
"Offer" will also include any counter-offers resulting from an Offer.
1.2. If an Offer made by one party is accepted by the other party in
accordance with the Offer's terms, an
"Engagement" will have been formed. Each Engagement will be governed by the terms and conditions of this Agreement. However, in
the event of any inconsistency between the terms of the Engagement and the
terms of this Agreement, the terms of the Engagement will govern.
1.3. At any time before Partner provides a Qualifying Link, Merchant may,
with or without notice, (a) change, suspend, revoke, or discontinue any
aspect of an Offer or an Engagement or this Agreement or (b) remove, alter,
or modify any graphic or banner ad submitted by Merchant for an Offer or an
Engagement. Partner must promptly comply with any request from Merchant to
remove, alter or modify any graphic, trademark, banner ad, or logo submitted
by Merchant that is being used by Partner as part of an Engagement.
2. Partner's Responsibilities
2.1. For the purposes of this Agreement, a "Link" will be defined as a
hyperlink, button, banner, or other user interface established within one Web
site to another Web site through which users of the first Web site can access
the second Web site. Partner will link the Partner Site to areas within the
Merchant Site using Links to the Merchant Site in accordance with the special
URLs specified in the Engagement (the "Required URLs"), as may be amended
from time to time by Merchant. To the extent Merchant chooses to add a
Required URL, Partner must add a corresponding Link to the Merchant Site
within ten (10) business days of Partner's receipt of notice thereof from
Merchant. Partner may post as many Links to the Required URLs as it wishes on
the Partner's Site. The position, prominence and nature of the Links on the
Partner's Site must comply with any requirements specified in the Engagement,
but otherwise will be in the discretion of Partner. All Links that Partner
uses in the Program will be provided to Partner from the ShareaSale network.
2.2. Partner may not make any representations, warranties, or other
statements concerning Merchant, the Merchant Site, any of Merchant's products
or services, or the Merchant Site policies, except as expressly authorized
under the terms of the Engagement.
2.3. Partner is responsible for notifying Merchant and ShareaSale of any malfunctioning of the Required URLs or other problems with
Partner's participation in the Engagement. Merchant will respond promptly to
all concerns upon notification by Partner.
3. Commissions
3.1. Merchant will pay Partner the commission specified in the Engagement
(the "Partner Revenue Share") if Merchant sells to a visitor to the Merchant
Site (a "Customer") a product or service that is the subject of the
Engagement and if that Customer accessed the Merchant Site and purchased the
product or service via a Qualifying Link. The Partner Revenue Share will not
include any refunds, chargebacks, bad debt, taxes, or shipping and handling
costs. In no event will Partner receive any compensation for purchases made
on the Merchant Site that do not originate directly (in each instance)
through a Qualifying Link. In no event will Partner receive any compensation
for purchases made on the Merchant Site that are rejected by Merchant for
reasons including, without limitation, fraud, cancellation, or non-compliance
with any reasonable requirements established by Merchant as a condition of
sale. Merchant will pay commissions on merchandise purchases (Excluding gift
cards and gift certificates),. Less taxes, shipping and handling.) that are
shipped to residents of, and addresses within, the United States and Canada
only.
3.2. A "Qualifying Link" is a link from the Partner Site to the Merchant Site
using one of the Required URLs or any other URL provided by Merchant for use
in The LinkShare Network(tm) if it is the last link to the Merchant Site that
the Customer uses during a Session where a sale of a product or a service to
Customer occurs. A "Session" is the period of time beginning with a
Customer's initial contact with the Merchant Site via a link from the Partner
Site and terminating when the Customer either returns to the Merchant Site
via a link from a site other than the Partner Site or the Engagement expires
or is terminated.
3.3. Merchant will have the sole right and responsibility to process all
orders made by Customers. Partner acknowledges that all agreements relating
to sales to Customers will be between Merchant and the applicable Customer.
3.4. All determinations of Qualifying Links and whether a commission is
payable will be made by ShareaSale and will be final and
binding on both Merchant and Partner. Prices for the products and services
sold on the Merchant Site will be set by Merchant in its sole discretion.
4. Ownership and Licenses
4.1. Each party owns and will retain all rights, title, and interest in its
names, logos, trademarks, service marks, trade dress, copyrights, and
proprietary technology, including, without limitation, those names, logos,
trademarks, service marks, trade dress, copyrights and proprietary technology
currently used or which may be developed and/or used by it in the future.
4.2. Merchant grants Partner a revocable, non-exclusive, worldwide license to
use, reproduce, and transmit Merchant's names, logos, trademarks, service
marks, trade dress, and proprietary technology (the "Merchant Intellectual
Property"), as designated in the Engagement or during the enrollment process
in ShareaSale, on the Partner Site solely for the purpose of
creating links from the Partner Site to the Merchant Site during Engagements.
Except as expressly set forth in this Agreement or permitted by applicable
law, Partner may not copy, distribute, modify, reverse engineer, or create
derivative works from the Merchant Intellectual Property. Partner may not
sublicense, assign, or transfer any such licenses, and any attempt at such
sublicense, assignment, or transfer is void. Partner will not, without prior
written authorization from Merchant, (i) display any Web pages of the
Merchant Site except as otherwise provided in this Agreement; (ii) cache,
store or copy any portion of the Merchant Site; (iii) modify or alter any
pages of the Merchant Site, including, without limitation, by removing any
proprietary rights notices on the Merchant Site; (iv) frame any portion of
the Merchant Site in conjunction with any materials that violate or infringe
any right of any third party or in conjunction with any materials which
Merchant, in its sole discretion, deems objectionable.
4.3 Upon Merchant's request, Partner must immediately remove from the Partner
Site any Link to the Merchant Site which is displayed on a page that
Merchant, in its sole discretion, deems objectionable.
4.4 Partner may not, without obtaining Merchant's prior written consent, use
any domain name on the Partner Site to redirect users of the Partner Site
directly to the Merchant Site.
4.5 Partner may not use the peachandlily.com or Peach & Lily and Peach Slices names, or any
variation thereof, in any manner not expressly authorized under this
Agreement, including, without limitation, the following: Partner may not
post peachandlily.com sales or promotions on the Partner Site without Merchant's
prior written consent; Partner may not use the peachandlily.com or Peach and Lily and Peach Slices
names or trademarks, or any variation thereof, including, without limitation,
names that are misspellings of the Peach & Lily name, in metatags, in hidden text
or source code, in e-mails or newsletters, in searchable keywords, in
Partner's ad copy, or in Partner's domain or sub-domain or any other part of
Partner's URL; Partner may not engineer the Partner Site in a manner that
pulls Internet traffic away from the peachandlily.com Site; Partner may not
engineer the Partner Site in a manner that would be considered "keyword
stuffing," such as using terms in hidden or live text that is meant to
attract search engine spiders in order to determine higher relevancy to
peachandlily.com; Partner may not use redirect URLs (ads that contain display URL
that automatically redirect to the Merchant Site), Bridge pages (ads for
webpages that act as an intermediary, whose sole purpose is to link or
redirect traffic to the Merchant Site), or "framing" or "wrapping" (ads for
webpages that replicate the look and feel of the peachandlily.com site); Partner
may not launch the Merchant Site directly from search engine listings or from
the Partner Site unless the visitor clicks through a Peach & Lily or Peach Slices banner, logo or
product; Partner may not bid on any keyword or keyword strings on any Pay per
Click Search Engines that is or includes one of Peach and Lily's trademarks or a
derivation of a trademark, or any other word or term that is likely to cause
confusion regarding its affiliation with peachandlily.com or Peach & Lily. Some
examples of these keywords include, but are not limited to: "Peach & Lily",
"peachandlily.com", "Peach & Lily skincare", "Peach & Lily website", "Peach Slices".
Violation of any of the foregoing prohibitions may result in, among other
things, the immediate termination of this Agreement and the commencement of
an action by Merchant against Partner seeking, without limitation, injunctive
relief and/or recovery of actually, statutory and punitive damages. Partner
may not use the peachandlily.com or Peach and Lily names, or any variation thereof,
in any manner not expressly authorized under this Agreement, including,
without limitation, the following: Partner may not post peachandlily.com sales or
promotions on the Partner Site without Merchant's prior written consent;
Partner may not use the peachandlily.com or Peach & Lily names, or any variation
thereof, in metatags, in hidden text or source code, or in Partner's domain
or sub-domain; Partner may not engineer the Partner Site in a manner that
pulls Internet traffic away from the Merchant Site; and Partner may not
purchase any keywords on search sites related to peachandlily.com, Peach & Lily, or
any variation thereof. Violation of any of the foregoing prohibitions may
result in, among other things, the immediate termination of this Agreement
and the commencement of an action by Merchant against Partner seeking,
without limitation, injunctive relief and/or recovery of actually, statutory
and punitive damages.
5. Termination
5.1. Either Party may terminate any Engagement at any time by deleting its
acceptance of the Engagement through ShareaSale. Termination
of an Engagement will not terminate this Agreement or any other Engagement.
5.2. Either Party may terminate this Agreement at any time, for any reason,
provided that, except as set forth in Section 4.5 of this Agreement, such
Party provides at least five days' prior written notice of such termination
to the other Party and to ShareaSale. Termination of this
Agreement will also terminate any outstanding Engagements. However, all
rights to payment, causes of action and any provisions which by their terms
are intended to survive termination, will survive termination of this
Agreement.
6. Representations
6.1. Each Party represents to the other that (a) it has the authority to
enter into this Agreement and sufficient rights to grant any licenses granted
hereby, and (b) any material which is provided to the other party and
displayed on the other Party's site will not (i) infringe on any third
party's copyright, patent, trademark, trade secret, or other proprietary
rights or right of publicity or privacy; (ii) violate any applicable law,
statute, ordinance, or regulation; (iii) be defamatory or libelous; (iv) be
lewd, pornographic, or obscene; (v) violate any laws regarding unfair
competition, anti-discrimination or false advertising; (vi) promote violence
or contain hate speech; or (vii) contain viruses, trojan horses, worms, time
bombs, cancelbots, or other similar harmful or deleterious programming
routines.
6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY
REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
7. Cross-Indemnification
Each Party agrees to indemnify, defend, and hold harmless the other Party and
its affiliates, directors, officers, employees, and agents, from and against
any and all liability, claims, losses, damages, injuries, or expenses
(including reasonable attorneys' fees) brought by a third party, arising out
of a breach, or alleged breach, of any of its representations or obligations
herein.
8. Limitation of Liability
8.1. In no event will either Party be liable to the other Party for any
direct, indirect, special, exemplary, consequential, or incidental damages
arising from or in connection with this Agreement, even if informed of the
possibility of such damages. In no event will the Aggregate Liability of
Merchant exceed the total undisputed commissions due and owing Partner
hereunder.
9. General
9.1. Each Party will act as an independent contractor and will have no
authority to obligate or bind the other in any respect.
9.2. The Parties agree that ShareaSale is an intended third party beneficiaries under this Agreement.
9.3. This Agreement has been made in and will be construed and enforced in
accordance with the laws of the state of New York. Any action to enforce
this Agreement will be brought in the federal or state courts located in that
state. Official correspondence must be sent to Merchant via registered mail
to Merchant's headquarters, to the attention of Merchant's legal department.
10.4. This Agreement may be agreed to in more than one counterparts, each of
which together will form one and the same instrument. The Parties agree that
execution may be achieved in any format convenient to the Parties.
10.5. The provisions of this Agreement are independent of and separable from
each other, and no provision will be affected or rendered invalid or
unenforceable by virtue of the fact that for any reason any other or others
of them may be invalid or unenforceable in whole or in part.
In Witness whereof, the Parties' authorized representatives have executed
this Master Agreement as of the date of the last signature set forth below.
MERCHANT
By: _____________________________
Its: ______________________________
Date: ____________________________
PARTNER
By: _____________________________
Its: ______________________________
Date: ____________________________