This Affiliate Agreement contains the terms and conditions that apply to your participation as a member of the affiliate program (the "Affiliate Program") for www.berggi.com (the "Merchant Website"), which is a website owned by Berggi, Inc. ("we" "us" or "Merchant"). In this Agreement you are sometimes referred to as "you", "your" or "Affiliate".

THIS IS A LEGALLY BINDING AGREEMENT. BY JOINING THIS AFFILIATE PROGRAM AND RECEIVING AND USING LINKS TO THE MERCHANT WEBSITE, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS SET FORTH HEREIN, DO NOT JOIN THIS AFFILIATE PROGRAM.

1. Enrollment and Eligibility. In order to participate in this Affiliate Program you must complete a participant application that is accessible through this Merchant. You will be notified if your application has been accepted or rejected. We reserve the right to reject any application in our sole discretion. If we reject your application, you may reapply at anytime. Only websites with general or United States based domain name extensions (e.g. .com, .net, .org, .us, etc.) and primarily serve a United States based audience are eligible for participation in this Affiliate Program. You must be at least 18 years of age to join this Affiliate Program. By submitting an application to participate in this Affiliate Program, you represent, warrant, covenant and agree that

           i.    all information that you provide to us in connection with your participant application and/or in connection with your participation in this Affiliate Program is true, complete and accurate,

          ii.    you have all necessary rights and authority to enter into this Agreement and perform your obligations hereunder,

          iii.    this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, and

          iv.    your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound.

2.   Suitability of Affiliate Websites.

a.    Your websites are not suitable and you may not participate in the Affiliate Program if the websites operated by you violate any of the following website suitability restrictions. Further, you represent, warrant, covenant and agree that none of your participating websites or any content or technology contained thereon will, at anytime during the period that you are an affiliate in this Affiliate Program, violate any of the following website suitability restrictions. In the event that we believe that you have violated any of the following website suitability restrictions we may, in addition to all other rights and remedies that we may have, terminate this Agreement and your participation in this Affiliate Program without notice. Your participating websites may not:

                      i.    infringe on our or any other person's or entity's intellectual property, publicity, privacy or other rights,

                     ii.    fail to state a clear online privacy policy to your visitors,

                    iii.    require a username or password to access your websites, without our prior written consent (including via email),

                    iv.    violate any law, rule or regulation,

                     v.    contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials,

                    vi.    contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information,

                   vii.    contain material that is materially false, inaccurate, fraudulent or misleading or that promotes pyramid or similar schemes;

                   viii.    promote violence or any illegal or immoral activity,

                    ix.    promote discrimination based upon gender, race, religion, nationality, disability, sexual orientation or age,

                     x.    use or promote the use of bulk email or spam,

                    xi.    contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website,

                   xii.    use any software that gathers information through the customer's Internet connection without his or her knowledge,

                   xiii.    install spyware on another person's computer, or cause spyware to be installed on another person's computer, or utilize any "opt-out downloads". An "opt-out download" is any software, program, script, tool or element that would automatically download to a user's computer or that would become operative when the user accesses the Internet unless the user takes affirmative action to prevent the download.

                    xiv.    use 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, or use browser-embedded contextual targeting applications or other applications which serve advertisements (pop-up ads and pop-unders, in-browser ads and highlighting of website content and redirecting to websites with similar content, regardless of whether any such advertisements are served directly by you or is provided or purchased from a third-party) on Merchant's or Merchant's competitors websites or on any other website other than your websites.

b.    You may not

                      i.    engineer you websites in a manner designed to direct or pull Internet traffic away from our Merchant website,

                     ii.    attempt to modify or alter our Merchant website in any way;

                    iii.    make any representations, either express or implied, or create an appearance that a visitor to your website is visiting our website, e.g., "framing" the Merchant website, without our prior written approval; or

                    iv.    "scrape" or "spider" any Merchant website or any other website for Merchant Content (as defined below).

c.   You may not purchase products during sessions initiated through Qualified Links on your websites for, resale, or commercial use of any kind. Such purchases may result, in our sole discretion, in the withholding of the Revenue Share or the termination of this Agreement.

d.    We have the right in our sole and absolute discretion to monitor your websites at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your websites for such purpose.

3.   Right to Use Merchant Content.

 .   Subject to the terms and conditions herein, we hereby grant to you, during the term hereof, a limited, non-exclusive, non-transferable, revocable, non-sublicenseable, non-assignable right to

                      i.    access the Merchant Website through Qualified  Banners Links (defined below) provided by us from time to time, and

                     ii.    use and display the Merchant Content (as defined below) that we may make available to you from time to time solely for the purpose of generating the sale of Merchant's products from your website that we have approved and solely in connection with your participation in this Affiliate Program. Any attempt to sublicense, assign or transfer this right is void. We may terminate your rights to use the Merchant Content for any reason at any time in our sole and absolute discretion.

a.    A "Qualifying Banner Link" means a link from your website to our website using graphic links provided by us for use in the Affiliate Program that allows us to track the use of such links by your visitors. All Qualifying Banners that you will use in the Affiliate Program will be provided by us, and only valid Qualifying Links generated by us will be tracked for purposes of determining Revenue Share that you may be eligible to receive based on number of downloads of application BerggiMai and online registrations for BerggiMail. Except for the right to use the Merchant Content provided to you by us hereunder, we are not granting you any rights in, and you represent, warrant, covenant and agree that you will not use, in any manner, any trademarks, service marks, trade names, logos, banners, buttons, graphics, digital images, text, or other content or materials owned or controlled by us.

b.    Upon termination of this Agreement, for any reason, you shall immediately cease using, displaying or otherwise maintaining any interest in the Merchant Content. For purposes of this Agreement "Merchant Content" means any and all trademarks, service marks, trade names, logos, banners, buttons, digital images, graphics, text and other content and material which we may, in our sole discretion, make available to you in connection with this Affiliate Program from time to time.

4.   Merchant Content Usage Restrictions. IF YOU FAIL TO COMPLY WITH ANY OF THE RESTRICTIONS IN THIS SECTION 5, AT OUR SOLE DISCRETION YOU FORFEIT ANY COMMISSIONS OR OTHER PAYMENTS OTHERWISE EARNED BY YOU DURING SUCH TIME THAT YOU ARE NOT IN COMPLIANCE.

 .   Obtaining and Using Merchant Content. You agree that you will not, except as specifically provided for in this Agreement

                      i.    copy or obtain any images or other content relating to the Merchant from the Merchant Website,

                     ii.    copy or display any Merchant Content,

                    iii.    modify, adapt, translate or create derivative works based on the Merchant Content,

                    iv.    remove, erase, or tamper with any copyright or other proprietary notices in any copy of any of the Merchant Content,

                     v.    sell, market, license, sublicense, distribute, disclose or otherwise grant to any person or entity any right or interest in the Merchant Content,

                    vi.    take any action which may cause deception, confusion or otherwise dilutes the quality of the Merchant Content or the goodwill associated therewith, or

                   vii.    use the Merchant Content in any manner which disparages or portrays us in a false, competitively adverse or poor light.

a.    No Keyword Purchasing. You agree that you will not purchase or bid for the placement of our name or trademarks or any variation or misspelling thereof within any third party search engine or portal, including but not limited to AOL.com, Yahoo.com, MSN.com and Google.com., ask.com and miva.com.

b.    Search Engine and Advertising Restrictions. You also agree to the following additional search engine advertising rules:

                      i.    all advertisements by you must be directed to your site or a page within your site,

                     ii.    none of your advertisements may link directly to the Merchant Website or any page within the Merchant Website,

                    iii.    you will not show the Merchant Website URL as the URL in your ads,

                    iv.    you will not use the words "official site" or words to similar effect in connection with any use of our trademarks, or otherwise suggest or imply that your site is an official Merchant site or partner, and

                     v.    you will stop bidding on any keyword term at our request.

c.   Trademark and Look and Feel Restrictions. Additionally, you agree that

                      i.    you will not include any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us in any domain name, URL, or similar identifier used by you,

                     ii.    you will not alter or attempt to alter the look, feel, content, features or functionality of the Merchant Website,

                    iii.    you will immediately substitute or remove any Merchant Content from your websites at our request,

                    iv.    your websites will not in any way copy or resemble the look, feel or content of the Merchant Website or create any impression that your websites are part of the Merchant Website,

                     v.    you will not purchase or contract with any other person or entity to exploit any name, trademark, trade name, service name, logo or similar business identifier, or any variation or misspelling thereof, which is owned or controlled by us for any purpose,

                    vi.    you will not use any Merchant Content in a manner which links or otherwise directs potential customers to any website other than the Merchant Website, and

                   vii.    you will not attempt to intercept or redirect potential customers from or on the Merchant Website or any other website participating in this Affiliate Program.

d.    Communications with Consumers. You may not, without our prior written consent,

                      i.    generate or send any email messages or other "electronic messages" using or containing and our name or logo, or any variation thereof, or any of our trademarks or products, or any of the Qualifying Banners Links or URLs provided to you as part of the Affiliate Program,

                     ii.    generate or send any unsolicited email (spam) under this Agreement or any email in violation of the CAN-SPAM Act of 2003 or any other applicable laws or regulations.

5.   Property Ownership Rights. You acknowledge and agree that we retain all rights, title and interest in and to all property rights embodied in or associated with the Merchant Content. You represent, warrant, covenant and agree that you will not, and will not assist any third party to, now or in the future,

             .    take any action challenging or otherwise inconsistent with our ownership of, or other right in, the Merchant Content, or

             i.    register or attempt to register any trademark, service mark, logo, trade name, domain name, or similar business identifier, that contains any name, trademark, service mark, logo, trade name or other content or material owned or controlled by us or any derivation,   Merchant Content will automatically vest in us. You agree to cooperate with us and to take any additional actions reasonably requested by us to effect, perfect or confirm our rights, title and interest in the Merchant Content.

6.   Operation and Maintenance of the Merchant Website.

             .    You acknowledge and agree that we will accept or reject, in our sole and absolute discretion, all orders by customers for merchandise placed on or through the Merchant Website. You further acknowledge and agree that

                      i.    you do not have any authority to make or accept any offer or commitment on behalf of us,

                     ii.    we are solely responsible for all pricing, deliver of mobile application and charging and all other aspects of the Merchant Website. Customers who access the Merchant Website will be deemed our customers. Accordingly, all of our then applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to such customers. As between the parties, all information obtained through the use of the Merchant Website shall be our exclusive property.

            a.    We may change our policies and operating procedures at any time in our sole discretion. For example, we will determine the prices to be charge for mobile application BerggiMail in accordance with our own pricing policies. Product prices and availability may vary.

 

 

7.   Revenue Share and  Payments.

             .    Revenue share  

            a.    We will pay you a revenue share of 6% from carriers outpayment  for each successful application download. The process that needs to be completed to generate revenue, will be the following:

                      i.    Once Qualify Banner is placed on Affiliate website, users will be able to start sending messages to number 24455 and download application

                     ii.    Qualify Banner will promote and detail what users have to do to get application

                    iii.    Once users text keyword "BERGGI#" (#will be assign by Merchant) they will receive a message to accept $2.00 one time charge in their phone bill and reply sending word "YES" to 24455

                    iv.    Afterwards users will receive message with link embedded to download application BerggiMail

                     v.    Users need to complete all process in order to be consider a successful application download for aggregator and carrier to return outpayment. In case users do not finish process outpayment nor revenue is generated

            b.    All of the downloads will be track by Merchant and will be reported to Affiliate on a monthly  basis

            c.    By the end of the period, download reports need to be verity with carriers reports in order to assure number of downloads that have been generated match correctly. Merchant is not responsible in case values are not exactly same, since download process depends on aggregator connectivity services and carrier networks

 

Payments

a.   Subject to the terms and conditions of this Agreement, we will pay you the above-described Revenue Share every quarter (4 months)

b.   Every month reports that have been generated and sent to you will be compared to carrier reports in order to agree on final sum that Affiliate needs to invoice Merchant.

c.   In case final quarter sum is not higher than $50, sum will be pay next quarter

d.   Differences between this two reports should not be more than 20%, if that is the case account needs to be check with aggregator and carriers. This differences may be due to chargebacks or technical reasons that carriers will need to clarify

e.   Affiliate will need to inform us their type of payment preferred in their application form: Wire transfer or check

f.   Upon termination of this Agreement, we will send, or cause to be sent, to you, a check for the total amount of Revenue Share then owed to you as of the termination date. The final Revenue Share payment may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for chargebacks

8.   Responsibility for Your Websites and Your Participation.

             .    You will be solely responsible for the development, operation, and maintenance of all websites that are linked to the Merchant Website hereunder and for all content, technology and other materials that appear on such websites. You acknowledge and agree that you are responsible for complying with all of the terms and conditions hereof and all applicable laws, rules and regulations. You represent, warrant, covenant, and agree that:

                      i.    you will not state or imply that we sponsor, endorse, sanction or otherwise approve your website or any of your products or service,

                     ii.    you will not state or imply that you are an affiliate, associate, partner or agent of ours or otherwise take any action that could reasonably cause customers confusion as to our relationship with you,

                    iii.    you will not take any action that could reasonably cause customers confusion as to the website on which any data collection, purchase transaction or other functions are occurring, 

                    iv.    you will promptly notify us any malfunctioning of the Qualifying Banners Links or other problems with your participation in the Program.

            a.    We disclaim all liability for all such matters. Further, you agree to defend, indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys fees) relating to the development, operation, maintenance or content of your website.

            b.    For purposes of this Agreement, "Confidential Information" means all non-public information provided or obtained by you about us, including, without limitation, all customer information, and all business and sales information related to transactions through this Affiliate Program.

9.   Violation of Terms and Affiliate Indemnification.

             .    Violation of any of the terms, conditions or prohibitions contained in this Agreement may result in, among other things, the immediate termination of this Agreement and the commencement of an action by us against you seeking, without limitation, injunctive relief, and the recovery of actual, statutory and punitive damages.

            a.    You, at your own cost and expense, will indemnify, defend and hold harmless, us, our parents, subsidiaries and company affiliates, and each of their respective directors, officers, employees, agents, successors and assigns against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages (even if such claims are groundless, fraudulent or false), including reasonable attorney's fees, based upon or in connection with

                      i.    any breach or alleged breach of your representations, warranties, covenants agreements, or obligations hereunder,

                     ii.    your websites or related business, or any content, technology or other materials displayed or contained thereon, including but not limited to with respect to claims of misappropriation or infringement,

                    iii.    your failure or alleged failure to comply with any applicable law, rule or regulation,

                    iv.    claims for unsolicited email, spamming or violation of the CAN-SPAM Act of 2003,

                     v.    any actual or alleged wrongful or negligent act or omission by you.

10.  Term and Termination.

             .    This Agreement shall automatically terminate on the date on which we no longer maintain or you are no longer a member of the Affiliate Program contemplated hereunder. Additionally, either party may terminate this Agreement at any time and for any reason by providing notice (including via e-mail) to the other party. We may also terminate this Agreement immediately, without notice, if we determine, in our sole discretion, that you have breached this Agreement or that your website(s) is unsuitable to participate in this Affiliate Program.

            a.    Upon termination of this Agreement, you will immediately cease use of, and remove from your website, all links to our website and all Merchant Content.

            b.    You are only eligible to earn a Revenue Share on sales of mobile application  occurring during the term of this Agreement, and referral fees earned through the date of termination will remain payable only if the related orders are not canceled or returned by a customer.

11.  Modification of Agreement. We reserve the right to modify this Agreement, at any time in our sole discretion on the Merchant Website. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU AGREE THAT YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THE MERCHANT CONTENT AND PARTICIPATION IN THIS AFFILIATE PROGRAM FOLLOWING ANY MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW AGREEMENT.

12.  Warranty Disclaimer. WE MAKE NO WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WITH REGARD TO THE SERVICES SOLD THROUGH THE MERCHANT WEBSITE, THE OPERATION AND MAINTENANCE OF THE MERCHANT WEBSITE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO REPRESENTATION THAT THE OPERATION OF THE MERCHANT WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE.

13.  Limitation of Damages. WE WILL NOT HAVE ANY LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF REVENUE, DATA OR PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE AFFILIATE PROGRAM WILL IN NO EVENT EXCEED THE TOTAL REVENUE SHARE PAID OR PAYABLE BY US TO YOU UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY AROSE. ALL CLAIMS MADE HEREUNDER BY YOU AGAINST US SHALL BE MADE WITHIN 120 DAYS OF THE ACT OR OMISSION THAT FORMS THE BASIS OF SUCH CLAIMS.

14.  Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Houston, Texas, excluding its conflict of laws principles. Any lawsuit relating to this Agreement must be brought in the federal or state courts located  Houston, Texas.

15.  Press Release; Publicity. You agree that you will not issue any press release or make any other similar public announcement that in any way makes any reference to us without our prior written consent, which consent may be withheld in our sole discretion.

16.  Force Majeure. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control.

17.  Headings. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement.

18.  Assignment. You may not assign this Agreement or any of your rights or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent, and any such attempted assignment shall be void. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

19.  Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.

20.  Entire Agreement. This Agreement represents the complete agreement and understanding between us and you and supersedes any other oral or written communications or understandings between us and you regarding the subject matter hereof. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us.