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AFFILIATE PROGRAM AGREEMENT

This Affiliate Program Agreement ("Agreement") is made between Coffees of Hawaii, LLC ("Merchant") and the undersigned entity ("Partner").

BACKGROUND

This Agreement contains the complete terms and conditions that apply to Partner's participation in the Coffees of Hawaii Affiliate Program and the establishment of links from Partner's website to the Coffees of Hawaii website located at "www.coffeesofhawaii.com" (the "Web Site").

1.The Affiliate Program: (a) As a Partner, Merchant will make available to Partner via the Web Site a variety of graphic, product, textual and other links as determined Coffees of Hawaii, LLC (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link") subject to the terms and conditions of this Agreement. The Links will serve to identify the Partner site as a part of Merchant's Affiliate Program and will establish a link from Partner site to the Web Site for Partner's participation in the Affiliate Program. Partner agrees to display on its Web Site only those Links that are provided by Merchant through the LinkShare Network.(b) To commence the process of enrolling as a Partner in the Affiliate Program, Partner will submit an Enrollment Application via Merchant's Web Site or as otherwise authorized by Merchant. Merchant will evaluate Partner's application and notify Partner of acceptance or rejection; which determination shall be in Merchant's sole discretion.

2. Term: (a) This Agreement is conditioned upon and will become effective on Partner acceptance of Enrollment Application and acceptance of the terms of this Agreement. By joining or participating in the Affiliate Program Partner acknowledges to having read this Agreement and agrees to abide by all the terms of this Agreement, which may be amended from time to time in the sole discretion of Merchant. Merchant will notify Partner of any amendment by posting a notice on the Web Site or, in Merchant's sole discretion, by E-mail and Partner continued participation in the Affiliate Program after such notice is posted or sent via E-mail shall constitute Partner binding and legally enforceable agreement to such amendment and acceptance of the Agreement as amended. (b) Partner is only eligible to earn commissions on sales which are completed during the term of this Agreement.

TERMS AND CONDITIONS

In consideration of the promises set forth below, we agree as follows:

  1. Offers and Engagements
    1. From time to time, Merchant may post on The LinkShare Network(tm) 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 receive an identification number from The LinkShare Network(tm) they shall be deemed to be an "Offer" for purposes of this Agreement. The term "Offer" shall also include any counter-offers resulting from an Offer.
    2. If an Offer made by one party is accepted by the other party in accordance with the Offer's terms via The LinkShare Network(tm), an "Engagement" will have been formed. Each Engagement shall have the same identification number as the original Offer that lead to the Engagement and shall be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the specific Engagement and the terms of this Agreement, the terms of the Engagement shall govern.
    3. At any time prior to Partner providing a Qualifying Link, Merchant may with or without notice (a) change, suspend or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad submitted by Merchant for an Offer or an Engagement. Partner agrees to promptly implement any request from Merchant to remove, alter or modify any graphic or banner ad submitted by Merchant that is being used by Partner as part of an Engagement.
  2. Partner's Responsibilities
    1. Partner will link its site to areas within Merchant's site using special URLs specified in the Engagement (the "Required URLs"). Partner may post as many links to the Required URLs and the rest of Merchant's site as it likes on Partner's site. The position, prominence and nature of links on the Partner's site shall comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Partner.
    2. Partner agrees not to make any representations, warranties or other statements concerning Merchant, Merchant's site, any of Merchant's products or services, or Merchant's site policies, except as expressly authorized by the Engagement, as determined in Merchant's sole discretion.
    3. Partner is responsible for notifying Merchant and The LinkShare Network(tm) in writing 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.
    4. Merchant is committed to the mission of eliminating spam email on the Internet. To that end, Merchant rigorously maintains only opt-in email addresses and always permits any email recipient to conveniently opt-out of emails. Merchant is adamant that its partners and affiliates should be similarly diligent. To that end, partner agrees not to send any email or other form of electronic message or advertisement containing Merchant's name, product, website address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from Partner or Partner has a pre-existing business relationship with the recipient. In addition, Partner agrees to provide a recipient of such communication with the ability to "opt out" of further communications from Partner either by calling a toll free number or by sending an "unsubscribe" email to Partner. Partner agrees that Merchant may, upon reasonable written notice, audit (a) the lists and source(s) of the lists to which Partner sends any email or other form of electronic message or advertisement containing Merchant's name, product, web site address, metatag or any other type of identifier, and (b) any email or other form of electronic message or advertisement containing Merchant's name, product, web site address, metatag or any other type of identifier.
    5. Partner agrees to abide by all applicable federal, state and local laws, including, without limitation, laws which prohibit a person or company from (a) installing spyware on another person's computer, (b) causing spyware to be installed on another person's computer, or (c) using a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to view the Internet website.
    6. Partner agrees not to bid on any keyword in Pay per Click Search Engines (PPCSEs) that is a Merchant trademark, (or a derivation of a trademark, or any other word or term that is likely to cause confusion regarding its affiliation with Merchant). Some examples of these keywords include, but are not limited to: "www.coffeesofhawaii.com", "coffeesofhawaii.com", "coffeesofhawaii", www.coffeesofhawaii.ca", "coffeesofhawaii.ca" "coffeeofhawaii.com", "coh", "molokaicoffee.com", "coffeesofhawai.com", "Coffees of Hawaiicoffee", "Coffees of Hawaiiwebsite". Merchant may, at its sole discretion, modify this list from time to time to include any other word or phrase. Failure to comply with this section may result immediately in permanent termination from the Merchant's affiliate program.
    7. Partner agrees not to employ the use of any type of software download or technology ("Prohibited Software") which attempt s to intercept or re-direct traffic or referral fees to or from, any other website without the written consent of Merchant.
    8. Partner will not frame its site so that it is confusingly similar to Merchant's site, as determined by Merchant in its sole discretion. Partner will not redirect traffic to Merchant's site where its URL remains in the address when a customer attempts to bookmark, what appears to be, Merchant's site, as determined by Merchant in its sole discretion. For Merchant's products listed for sale on Partner's site, Partner will direct customers only to Merchant's site for the purchase or will purchase the products only from Merchant's site. Partner will use the product images and descriptions only as provided by Merchant and only in the manner consistent with this agreement for the promotion and sale of Merchant's products. Failure to comply with this section may result immediately in permanent termination from the Merchant's affiliate program.In accordance with section 4(b), Partner agrees to not use Merchant's content on any web site other than its registered Linkshare web site without the express written permission of Merchant.
  3. Commissions
    1. Merchant agrees to pay Partner the commission specified in the Engagement if Merchant sells to a visitor to Merchant's site (a "Customer") a product or service that is the subject of the Engagement and if that Customer has accessed Merchant's site and purchased the product or service via a Qualifying Link.
    2. A "Qualifying Link" is a link from Partner's site to Merchant's 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's 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 from a Customer's initial contact with Merchant's site via a link from the Partner's site and terminating when the Customer either returns to the Merchant's site via a link from a site other than Partner's site or the Engagement expires or is terminated, whichever is sooner.
    3. Merchant shall have the sole right and responsibility for processing all orders made by Customers. Partner acknowledges that all agreements relating to sales to Customers shall be between Merchant and the Customer.
    4. All determinations of Qualifying Links and whether a commission is payable will be made by The LinkShare Network(tm), subject to the Engagement, as determined by Merchant, in its sole discretion, and will be final and binding on both Merchant and Partner. Prices for the products will be set solely by Merchant in its discretion.
  4. Ownership and Licenses
    1. Each party owns and shall retain all right, 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.
    2. Subject to Partner abiding by the provisions of this Agreement, including, without limitation, Sections 2(b), 2(c), 6(a) and 7(a), Merchant grants Partner a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, and other content (collectively, "IP") as designated in the Engagement or during the registration process in The LinkShare Network(tm), on Partner's site solely for the purpose of creating links from Partner's site to Merchant's site during Engagements and as contemplated by this Agreement. 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 same IP. Partner may not sublicense, assign or transfer any such licenses for the use of rights in and to the same IP, and any attempt at such sublicense, assignment or transfer is void. Partner will not use nor negligently nor intentionally allow any third party to use the Content for any purpose other than to drive sales to the Merchant's site.
    3. Partner grants Merchant a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by Partner solely for co-branding purposes or as a return link from Merchant's site to Partner's site. Merchant will remove such graphic or banner ad upon Partner's request.
  5. Termination
    1. Either party may terminate any Engagement at any time by deleting their acceptance of the Engagement through The LinkShare Network(tm). Termination of an Engagement shall not terminate this Agreement or any other Engagement.
    2. Either party may terminate this Agreement at any time, for any reason, provided that they provide at least five day's prior written notice of such termination to the other party and The LinkShare Network(tm). Termination of this Agreement shall 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, shall survive termination of this Agreement until its fulfillment.
  6. Representations
    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, including, without limitation, any anti-spam or other email or electronic commerce related law; (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 (c) it shall not send any email or other form of electronic message or advertisement containing the other's name, product, web site address, metatag or any other type of identifier to any recipient unless the recipient has directly consented to receive such communication from the sender or sender has a pre-existing business relationship with the recipient; and (d) it shall provide any recipient of such communication with the ability to "opt out" of further communications from the sender either by calling a toll free number or by sending an "unsubscribe" email to the sender.
    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
    1. Each party hereby 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 including, without limitation, those contained in Sections 2(b), 2(c), 2(e), 4(b) and 6(a) of this Agreement.
  8. LinkShare Required Provisions
    1. Merchant and Partner jointly and severally hereby agree to indemnify, defend, and hold harmless The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees and agents (collectively, "LinkShare") from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) directly or indirectly arising from or relating to any Offer, Engagement, any other matter related to this Agreement or the subject matter hereof any dispute relating thereto.
    2. The parties agree that LinkShare may rely on any data, notice, instruction or request furnished to LinkShare by either party which is reasonably believed by LinkShare to be genuine and to have been sent or presented by a person reasonably believed by LinkShare to be authorized to act on behalf of one of the parties. In the event of any dispute between the parties, the parties agree that to the extent the parties contact and involve LinkShare, LinkShare may consult with and use counsel of its own choice in connection with such dispute and the reasonable fees and disbursements of LinkShare's counsel shall be within the costs and disbursements covered by the indemnity specified in Section 8(a) above.
    3. The parties acknowledge and agree that this Agreement and the Engagements are only made possible due to LinkShare and that the parties shall not, for the duration of this Agreement and for twelve (12) months thereafter, enter into any advertising, collaborations or other commercial arrangements with each other in connection with their sites on the World Wide Web except via The LinkShare Network(tm).
  9. Limitation of Liability
    1. In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages. Notwithstanding the foregoing, Partner shall be liable to Merchant for any and all damages, losses or expenses (including attorneys' fees and other costs of defense) incurred in connection with all suits, claims, demands, or liabilities whatsoever, in law and equity, arising out of or resulting in any way from any actual or alleged violation by Partner of Sections 2(b), 2(c), 4(b), and 6(a), or pursuant to 7(a) of this Agreement.
    2. The parties agree that The LinkShare Network(tm) and LinkShare Corporation and its affiliates, officers, directors, employees and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential or incidental damages, even if informed of the possibility of such damages.
  10. General
    1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
    2. The parties agree that The LinkShare Network(tm) and LinkShare Corporation are intended third party beneficiaries under this Agreement.
    3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the state of Merchant's headquarters. Any action to enforce this Agreement shall be brought in the federal or state courts located in that state. If you need to send official correspondence, send it via registered mail to Merchant's headquarters to the attention of Merchant's legal department.
    4. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution may be achieved in any format convenient to the parties.
    5. The provisions of this Agreement are independent of and separable from each other, and no provision shall 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.

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