Terms of using CherryB2C.com Services.
Welcome to Cherryb2c.com. Cherry B2C LLC and/or affiliates (“Cherry, Services”) provide online service features from the website Cherryb2c.com when you visit the website and use the services, Cherry applications for mobile, or use the platform provided by Cherry in connection with all services available and subject to the following conditions.
BY REGISTERING ON CHERRY, YOU AGREE TO THESE CONDITIONS. PLEASE READ THEM CAREFULLY.
WHEREAS as between the parties, Cherry B2C LLC is the user of the “Cherryb2c.com” platform, a tool that enables viewing insights on brands, services, influencers search, sales referrals ("Services"); and WHEREAS User desires to obtain an authorization from Cherry to use the Services, and Cherry is willing to grant such rights and credentials to use the Services subject to the terms and conditions set forth herein and in the Registration Confirmation; NOW, THEREFORE, the parties hereby agree as follows:
Scope of Services. Subject to the this Agreement and the payment of the required fees, when is applicable, Cherry grants rights a non-exclusive, nontransferable, non-sublicensable, worldwide, revocable and limited access to use the Services for the internal purpose of User's performing the marketing activities enabled via the Services for User (“Access”). User warrants that:
it has the power and authority and has taken all corporate action required, to enter into and fully perform this Agreement, and its entry into and performance of this Agreement do not and will not violate any agreement or restriction applicable to, or binding upon, User; and
The user will comply with all applicable laws, rules, regulations, and ordinances (and shall not violate, infringe, misappropriate or breach any third party’s (including, without limitation, Cherry’s rights) in its performance of this Agreement and use of the Services. Under the Acess, the User shall be given a user name and password from Cherry for logging into the Services, following which User's use of the Services shall be enabled. The user shall be fully responsible and liable for the actions and omissions of its users, and the users User adds to the Services.
When you use the services or send e-mail, text messages, or other forms of communications from any device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, bots, mobile push notices, and messages on Cherry site or through any other platform Cherry uses. You can retain copies of the communications that are provided via Cherry for your personal records. You agree that all agreements, notices, disclosures, and other communications that Cherry provides electronically satisfy any legal requirement that such communication is in writing.
Intellectual Property Rights & Restrictions. Other than the limited access granted under this Agreement to User during the Term, all intellectual property rights, ownership rights and proprietary rights in the Services and any part thereof, including all proprietary and secret information of Cherry or its licensors, and including any and all derivatives, updates, upgrades, changes and improvements thereof lie and remain exclusively with Cherry and/or its licensors. User shall
Not sell, lease, or distribute any rights of use in the Services or any part thereof or allow any third party to use such rights, for any purpose;
Not attempt to reverse engineer, decompile, or disassemble the Services or any part thereof;
Refrain from modifying the Services, or granting any other third party the right to do so;
Not represent that it possesses any proprietary interest in the Services;
Not directly or indirectly, take any action to contest Cherry's intellectual property rights or infringe them in any way;
Except as specifically permitted by Cherry, not use the name, trademarks, trade-names, and logos of Cherry; and
Not use, or otherwise transfer, access or commercially exploit (or allow third parties to use, transfer, access or commercially exploit), any data made available to User through the Services or any derivatives thereof (“Cherry’s Data”) in order to create derivative works of the Services or any software product (or parts thereof) that is the same or substantially similar to the Services or achieve, or intends to achieve, the same or a similar purpose.
If User provides suggestions, comments or feedback (whether orally or in writing) (the “Feedback”), any and all rights, including Intellectual Property Rights, shall belong exclusively to Cherry and shall be considered Cherry’s Confidential Information, and User hereby irrevocably transfers and assigns to Cherry and its partners all rights in such Feedback and waives any and all moral rights that User may have in respect thereto. Use of Feedback, if any, may be made by Cherry at its sole discretion.
Consideration. In consideration of the Access granted to User, User shall pay Cherry an Access fee as set forth in the applicable Registration Form ("Access Fee"), when is requested by Cherry, as such applicable Registration Form may be mutually amended by the parties from time to time. Payments shall be made according to the payment terms set forth in the applicable Registration Form. If no payment terms are specified in the applicable Registration Form, payments shall be made within thirty (30) days from receipt of an invoice from Cherry. All payments shall be in US dollars unless otherwise specified in the Registration Form. Any payment not paid by User to Cherry when due shall bear interest at the rate of 1.5% per month (but no more than the maximum rate allowed by applicable law), and shall constitute sufficient cause for Cherry to immediately suspend performance of this Agreement and/or terminate the Agreement in accordance with the Registration Form.
Taxes. All amounts payable hereunder and under the Registration Form shall be paid in net terms and shall not be subject to any set-off or deduction of any kind. The user is solely responsible for payment of any taxes resulting from the acceptance of the Access, including, Sales Tax, VAT or IVA if applicable. If User is required to withhold any amounts due to applicable tax laws or regulations, the User shall pay an amount to Cherry such that the net amount payable to Cherry after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement (“gross-up”). In addition, the User shall be responsible for all income, sales, business, or any other such form of tax, fee, permits, or payment due in receipt of the transfer of the property or right to use such property under all circumstances. Cherry may request payment of such applicable taxes in accordance with applicable law for remittance to such governmental agency, but all final duties for payment and compliance of all tax laws shall be the duty of the User. User agrees to hold harmless Cherry from all claims and liability arising from User’s failure to report or pay any applicable taxes, duties, or other governmental charges.
Technical Support. During the term of this Agreement, Cherry will provide User technical support for the Services during the following Technical Support Hours: Monday to Friday from (9:00 AM pm to 5 PM EST. The user shall be entitled to training & strategy sessions over the internet, and live in-platform chat support, monthly reviews, and a dedicated account manager to assist with questions according to the Support Package as stated in the Registration Form.
Cherry may facilitate payments to influencers/end users on User’s behalf, in which case Cherry will use commercially reasonable efforts to facilitate the payment from the User to the influencer/end-user.
To the maximum extent permitted by law, such payments shall be deemed made by User and not by Cherry.
The parties agree that to the maximum extent permitted by law:
Cherry is merely the facilitator of any such payments and the obligation to pay, and/or any other obligation, requirement or consequence, in relation to such payment or the transaction with the influencers/end users, resides solely with User; and
Except for the payment facilitation, Cherry bears no responsibility or liability of any kind in relation to any such payments, including, without limitation, in relation to tax, anti-money laundering, and/or any disputes between User and influencer or other end users.
User acknowledges that Cherry uses third party payment systems PayPal or equivalent for the payment facilitation and may, in the future, use other third-party payment systems and that:
Third parties have terms, conditions, and policies concerning the payment process which shall govern the payment process and prevail at all time, including, without limitation, PayPal’s terms available at https://www.paypal.com/us/webapps/mpp/ua/useragreement-full
PayPal, and other third parties as applicable, may discontinue or change the payment system in question which could delay or adversely affect the payment facilitation performed by Cherry; and
To the maximum extent permitted by law, Cherry shall not bear any responsibility or liability of any kind in connection with (i) and (ii) above or for any action, omission and/or delay by, deriving from and/or related to such third parties and/or their payment systems. The user shall cooperate in good faith with Cherry in the event that a modification to this Agreement is required under the agreement with third party payment providers or facilitators.
Confidentiality. All designs, engineering details, and other technical, financial, marketing, commercial and other information pertaining to the Services and/or Cherry's business activities and/or any proprietary or confidential information of Cherry disclosed pursuant to this Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature shall be considered “Confidential Information.” User agrees to use Cherry’s Confidential Information only in connection with the Access, to keep such Confidential Information confidential, and not to reproduce, copy, or disclose such Confidential Information to any third party, except with Cherry's prior written consent. If the disclosure is required by law or government order or official authority request the information to be disclosed, the User shall give written notice to the Cherry prior to such disclosure and provide Cherry with an opportunity to take legal steps to resist or narrow such request.
Disclaimer of Warranties. User acknowledges that the data contained on or included in, the Services are based on information, data, and content obtained by Cherry. It is hereby made explicitly clear that, to the maximum extent permitted by law, Cherry shall not be held responsible for any acts and/or omissions regarding data and that Cherry does not intend, and will not be required, to edit or review for accuracy or appropriateness any information and/or data provided by User (including such information contained in User's social properties). EXCEPT FOR THE WARRANTIES PROVIDED HEREIN, IF ANY, CHERRY PROVIDES THE SERVICES TO USER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CHERRY AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. CHERRY DOES NOT WARRANT THAT THE SERVICES OR ANY SOFTWARE OR DATA RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION. The user is solely responsible for the appropriate configuration of all hardware and other equipment and all devices and other software used with the Services and for making lawful use of the Services and its features.
Indemnification. User shall fully indemnify, defend and hold CHERRY (including its officers, directors, employees, subsidiaries, and affiliates) harmless from any and all losses, damages, fees, settlements, and damages (including reasonable attorney's fees) arising from a claim based on User's breach of its representations, warranties, and obligations as set forth in this Agreement. Subject to the Indemnification Exceptions (defined below), Cherry shall indemnify User from and against any claims or actions brought or made by a third party against User and from all damages, costs, claims, and expenses (including reasonable attorneys’ fees and costs) arising in connection therewith and will pay any settlements agreed to by Cherry or judgments awarded against the User in favor of the third party resulting from such claim, to the extent based upon any claim that the Services infringe any valid copyright or trade secret. The indemnitee shall provide the Indemnitor with: (a) prompt written notice of such claim and (b) sole control over the defense and settlement of such claim. The indemnitee shall provide the Indemnitor with information and assistance as may be reasonably requested by the Indemnitor. The user may not settle any claim without first obtaining Cherry’s written permission.
Indemnification Exceptions: Cherry will have no obligation to User to the extent that any claim arises from:
Any modification to the Services by anyone other than Cherry;
Modifications made by Cherry in accordance with User’s specific request;
Use of the Services other than as specified in this Agreement; or
Use of the Services in combination with third-party software, hardware, or data not expressly approved in writing by Cherry if the claim would not have arisen but for such combination.
Claims: If a claim arises, or in Cherry’s opinion is likely to arise, Cherry may, at its own discretion, obtain for User the right to continue using the Services, modify the Services to make them non-infringing, or substitute at no additional cost the Services with another service of substantially similar capability and functionality. If none of these options are reasonably available to Cherry, User may terminate this Agreement as a sole remedy in which case Cherry’s sole liability will be to refund to the User within 30 days, the Fees pre-paid under this Agreement for the remaining unused period of the Access. THIS SECTION “CLAIMS” STATES CHERRY’S SOLE LIABILITY AND OBLIGATIONS, AND THE EXCLUSIVE REMEDIES OF USER, WITH RESPECT TO ANY CLAIMS RELATED TO CHERRY’S INFRINGEMENT OR VIOLATION OF ANY KIND RELATING TO THIRD PARTY RIGHTS (INCLUDING, WITHOUT LIMITATION, PROPRIETORY OR INTELLECTUAL PROPERTY RIGHTS), AND CHERRY’S BREACH OF WARRANTIES.
Limitation of Liability. EXCEPT FOR
USER’S VIOLATION, INFRINGEMENT OR MISAPPROPRIATION OF CHERRY’S INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS,
USER’S VIOLATION OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR
USER’S INDEMNIFICATION OBLIGATIONS:
NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL EXCEED THE TOTAL AMOUNT OF ACCESS FEES PAID BY USER TO CHERRY DURING THE TWELVE (12) MONTHS PRECEEDING THE DATE THE LIABILITY FIRST ARISES, AND
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER, CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Term, The Term of this Agreement, is as set in the applicable Registration Form.
Termination. Termination of this Agreement shall be according to the terms detailed in the applicable Registration Form. Each party may terminate this Agreement at any time by giving written notice to the other party if:
(i) the other party breaches a material provision of this Agreement and fails to cure the breach within thirty (30) days after being given written notice thereof;
(ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party, or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. No refunds will be provided under any circumstance during or after the termination of the Agreement, except as explicitly provided in this Agreement. Upon termination of this Agreement for any reason whatsoever, User will immediately cease use of the Services and return all Confidential Information to Cherry and destroy or return (including causing third parties to destroy or return) to Cherry, at Cherry’s discretion, all Cherry’s Data. Registration’s obligations that, by their nature and content, must survive the termination of this Agreement in order to achieve their fundamental purposes shall so survive. Sections 2 (Intellectual Property Rights & Restrictions), 6(B) – (D) (Providers Payments), 7 (Confidentiality), 10 (Further Requirements), 11 (Third Party Integration), 12 (Limitation of Liability), 14 (Consequences of Termination), 15 (Governing Law), 16 (Arbitration, injunctive relief) and User’s payment obligations shall survive any termination of this Agreement.
Governing Law. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by the laws of the United States- Florida, without reference to principles of conflicts of laws thereof.
Arbitration. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in front of a single arbitrator, under the Rules of Florida Fourth District Court of Appeal, which rules are deemed to be incorporated by reference into this clause. The seat, or legal place, of arbitration, shall be Florida, West Palm Beach, Florida USA. The language to be used in the arbitral proceedings shall be English. Notwithstanding the foregoing, Cherry may seek an injunction or other equitable relief in any court of competent jurisdiction in order to prevent a breach or threatened breach of this Agreement.
Use of the Services by Service Providers. "Service Provider(s)" means any third-party service providers, such as agencies and marketing consultants, engaged by User to provide marketing services directly to, and for the benefit of, User. Subject to the terms and conditions of this Agreement, the scope of the Access and to any reasonable requirements determined by Cherry at its sole discretion (including, without limitation, technical restrictions to protect Cherry’s intellectual property or proprietary rights), User may permit its Service Providers to participate in the Access and use the Services and the data available on the Services for the sole purpose of providing marketing services to the User, provided that: (i) User first inform Cherry in writing of the identity of such Service Providers, (ii) such Service Providers are approved in writing by Cherry prior to receiving access to use the Services, (iii) User causes such Service Providers to execute, and agree to be bound by, the Terms and Conditions for Service Providers by and between Cherry and each such Service Provider, (iv) notwithstanding anything to the contrary, User acknowledges and ensures that Cherry shall have the right, but not the obligation, to use any remedies available in law or in equity directly against the Service Providers in connection with, or related to, any violation, breach, misappropriation or infringement of any kind by Service Providers or on Service Providers’ behalf (with or without involving the User, at Cherry’s sole discretion), and (v) User shall in any event remain fully responsible and liable for the actions and omissions of its Service Providers, and for the transfer to, and access and/or use by, Service Providers of data and information (including, without limitation personal data) on the Services and shall defend, hold harmless and indemnify Cherry (and its affiliates, subsidiaries, directors and staff) from and against any claim, liability, cost and/or expense of any kind related to the Service Provider’s actions and/or omissions and/or the transfer to, and access and/or use by, Service Providers of data and information (including, without limitation personal data) on the Services and, notwithstanding anything to the contrary in this Agreement or any other agreement or arrangement between Cherry, the User and/or the Service Providers, User’s liability in connection with this Section shall be unlimited. Cherry reserves the right to suspend access to the Services by Service Providers at Cherry’s sole discretion. Notwithstanding anything to the contrary, subsections (iv) and (v) of this Section (“use of the Services by Service Providers”) shall survive the termination or expiration of this Agreement and/or the relevant Registration Forms for any reason.
Publicity: Both parties shall be permitted to use the names and/or logos of the other party in publicity releases, advertising, or similar marketing activities without the prior written consent of the other party. Nothing herein shall limit either party from disclosing the terms of this Agreement to potential financing sources, security holders, strategic partners and advisors
Assignment. User may not transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of Cherry. Cherry may assign this agreement in whole or in part at its discretion.
Entire Agreement. This Agreement and the relevant Registration Form constitute the entire agreement between Cherry and User and supersede any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments may be made only in writing. The parties shall be deemed, independent contractors.
No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
Below are previous versions of our Terms. They are effective as they correspond to the signature date of your Agreement.