Terms and Conditions

These Terms and Conditions (“Agreement”) are entered into between the wholesaler (“Wholesaler”) and the submitting party ("Client") and made effective on the date the Client account is created (the "Effective Date"). Client’s completion of account enrollment constitutes agreement to this Agreement by Client. Each of Wholesaler and Client may be referred to herein as a "Party" and collectively as the "Parties".

WHEREAS, Wholesaler, together with its third-party developer (“Developer”), has created a digital coupon platform and database (the "Program") that will enable consumers enrolled in Wholesaler digital platforms (an "Enrolled Shopper"), to: (i) visit the Retailer website and/or app; create an account; select and electronically download digital coupons discounts for Client’s merchandise ("Electronic Offers") delivered to the Enrolled Shoppers digital coupon program (the "Loyalty Card") or unique identifier; and redeem the Electronic Offers at the Retailer’s point of sale;

WHEREAS, Client desires to upload and display electronic offers to participating retailers in the program.

NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, the Parties hereby agree as follows:

Program Terms:
1. Program Type: This program consists of the following components - Set up and presentation of digital coupons that will be loaded to cards/unique identifier and available for redemption at participating Retailer banner's points of sale.
2. Program Description: Consumers will be provided with Electronic Offers for which they are eligible and will choose such of those Electronic Offers that they would like to electronically download to their Loyalty Card/unique identifier. Consumers will be able to redeem such Electronic Offers at the Retailer point of sale.
Client Program Duties:
1. Coupon Meta Data: Client shall provide Wholesaler with the terms, data and images necessary to set up the Electronic Offers in the Program (the “Coupon Meta Data”). Coupon Meta Data may include, without limitation: the display dates, the expiration date of the Electronic Offer; the purchase requirements for the Electronic Offer including the sku numbers the offer is good on; the value of the Electronic Offer; package image; limitations on the number of times each digital coupon may be downloaded by an Enrolled Shopper; limitations on the number of digital coupons that may be downloaded in total prior to an automatic withdrawal of the digital coupon from the Retailer website when that predetermined number of downloads has been reached. Data and images for the set of Electronic Offers shall be provided prior to the start date for the Electronic Offers. But recommended twelve (12) weeks prior to the start date.
2. Redemption Settlement: Wholesaler is responsible for reimbursing Retailers for all Electronic Offer redemptions. Client is responsible for face value and clip fees made payable to Wholesaler.
Wholesaler Program Duties:
1. Program Development: Wholesaler’s third-party partners shall be responsible for: associating the Electronic Offers to the appropriate Retailer's Loyalty Card; enrolling the consumer at the Retailer website with a password; enabling the consumer to access the account, download coupons, review activity including coupons downloaded and redeemed; and transmitting data about coupon downloads to Retailers not less frequently than hourly.
2. Electronic Clearance: Wholesaler’s third-party partners will provide Wholesaler coupon clearing agents, not more frequently than monthly, with the standard electronic files reasonably required for electronic coupon clearance and payment.
3. Site Requirements: Wholesaler’s third-party partners shall be responsible for providing all hardware, technical support, customer service, and co-location in connection with the Electronic Offers using third-party providers.
4. Reporting: Wholesaler will provide summary reports upon request to Client of total Client coupons selected and total Client coupons redeemed, by coupon. Said reporting will be requested from third-party providers.
5. Fraud Management: Wholesaler and third party providers shall monitor the operation of the Program for instances of potential fraud by consumers, promptly notify Client of any such instances and assist with devising and implementing commercially reasonable measures to resolve the identified situation and to prevent similar situations from occurring in the future.
Term of Agreement and Program Period:
1. Term: The term ("Term") of this Agreement shall begin on the Effective Date and shall continue until indefinitely until otherwise ended by either Party upon 30 days written notice to the other Party.
2. Program Period: Each coupon will become available for download and will expire based on dates provided by Client for each Electronic Offer.
3. Termination For Cause: Either Party may, at its option, terminate this Agreement without advance notice, if: at any time during the Term: a proceeding in bankruptcy, insolvency, liquidation or winding up is instituted by or against the other Party and not dismissed within thirty (30) days; if a receiver, liquidator or trustee is appointed for the other Party's property and said appointment is not vacated within thirty (30) days; if this Agreement by operation of law passes to any person or persons other than the other Party; or upon the occurrence of any breach or default by the other Party of any of its obligations under this Agreement. If a breach or default is of a nature which may be cured by the breaching Party, then the non-breaching Party may exercise its right to terminate this Agreement only if such breach or default continues uncured for a period of ten (10) days following written notice to it of such breach or default. A Party's exercise of this option to terminate shall be effective upon the other Party's receipt of written notice thereof. A Party's silence or acquiescence with respect to any or all of the above matters shall not operate as a waiver of its legal right to exercise such option.
Program Fees and Payment Terms:
1. Program Fees: The program fees ("Program Fees") are as follows: Per Electronic Offer Download Fee - $0.10 per download ("Clip") The Program Fees cover the Wholesaler services described in Section 3 of this Agreement.
2. Payment Terms: Client will be invoiced for all fees. Payment for all fees shall be made within thirty (30) days of date of invoice. All fees shall be paid by check or electronic transfer of funds to an Wholesaler designated account. Any undisputed invoice not paid more than 30 days after date of invoice shall be subject to late fee charge equal to 1.5% of the original invoice amount, and an additional 1.5% of the original invoice amount for each 30-day period thereafter that the original invoice remains unpaid. No late fee shall apply to amounts that are disputed in good faith by Client, provided, that Client advises Wholesaler in writing of any disputed amounts within twenty (20) days of the date of the invoice for such amounts.
Use of Data:
1. As used in this Agreement, the following terms shall have the following meanings:
  1. Alternative ID: an alternative means of validating an Enrolled Shopper's Loyalty Card identity outside of using the Loyalty Card ID. This means is usually provided by a shopper upon registering for a Loyalty Card, examples include but are not limited to phone numbers and personal identification numbers.
  2. Enrolled Shopper Data: nonpublic personal information of an Enrolled Shopper, including but not limited to name, address, e-mail address, IP address, and/or telephone number. Enrolled Shopper Data does not include Loyalty Card ID and/or Alternative ID.
  3. Loyalty Card ID: A Retailer provided unique identifier(s) to identify a specific Loyalty Card. The identifier usually consists of a number or an alpha-numeric code.
  4. Offer Data: information related to an Electronic Offer selected by an Enrolled Shopper, including the Loyalty Card ID or Alternative ID of the Enrolled Shopper, other means of identifying the Enrolled Shopper selecting the Electronic Offer, the date and means by which the Electronic Offer was selected and the retail banner to which the Electronic Offer was loaded .
  5. Redemption Data: information related to the redemption of an Electronic Offer by an Enrolled Shopper, including the Loyalty Card ID or the Alternative ID of the Enrolled Shopper redeeming the Electronic Offer, other means of identifying the Enrolled Shopper redeeming the Electronic Offer, the date of the redemption, and the retail banner where the redemption occurred.
2. Client shall have no right to any Enrolled Shopper Data, Loyalty Card ID, Alternative ID, or any additional data provided by an Enrolled Shopper as part of registering at a Retailer website.
3. Wholesaler shall provide Offer Data, other than the Loyalty Card ID and/or Alternative ID, or data with respect to other means of identifying the Enrolled Shopper, to Client.
4. Client will receive standard reports showing aggregated redemption results by Client's Electronic Offer, by Retailer banner, and by date. Client may, for an additional charge, do custom queries of the Redemption Data that show aggregate redemption results. Wholesaler shall have the right to use the Redemption Data to qualify Enrolled Shoppers to receive additional targeted coupons from Client for redemption only at the Retailer which supplied the Redemption Data.
5. Wholesaler shall treat as Confidential Information (defined below) and shall not use or disclose (other than to the appropriate Retailer) any Offer Data, or Redemption Data, for any purpose, except as reasonably necessary to fulfill its obligations hereunder and for the operation of the Program, and except as otherwise specifically provided herein; provided, however, that Wholesaler shall have the right to use such data in aggregate form without identifying Client or Retailer for marketing purposes.
6. Subject to Wholesalers obligation of confidentiality as set forth herein, Wholesaler and Developer shall have the perpetual right to maintain all Offer Data and Redemption Data in its respective databases.
Right to Use Trademarks:
1. Client hereby grants Wholesaler a non-exclusive, royalty-free license, during the Term, to use Client's trademarks and logos on the Retailer and Wholesaler websites, as reasonably necessary for Wholesaler to fulfill its obligations hereunder, and on other approved websites, and in other marketing materials to identify and publicize the Program provided.
Confidentiality:
1. “Confidential Information” shall mean any and all proprietary or nonpublic information of a Party, whether in oral, written or other tangible form that the Party disclosing the information (the “Discloser”) designates as being confidential or which, under the circumstances surrounding disclosure, the receiving Party (the “Recipient”) knows or has reason to know should be treated as confidential, including without limitation, the terms and conditions of this Agreement. “Confidential Information” shall not include information that (i) is already known by the Recipient as of the date of the disclosure; (ii) becomes publicly known through no wrongful conduct of Recipient; (iii) is received from a third party without similar restrictions; (iv) is required to be disclosed by law, governmental regulation or court order, as long as Recipient provides Discloser with timely written notice of such requirement prior to any such disclosure, to enable Discloser to seek a protective order; or (v) is independently developed by the Recipient without the use of or reference to the Discloser’s Confidential Information.
2. Except as otherwise specifically provided herein, and except as necessary for the performance of Recipient's obligations hereunder, and except as Discloser may authorize in writing, Recipient agrees that it will not use, disseminate, or in any way disclose any Confidential Information of the Discloser to any person, firm or business. Recipient agrees that it shall treat all Confidential Information of Discloser with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care. Recipient agrees that it shall disclose Confidential Information of the Discloser only to those of such Recipient’s employees who need to know such information in order to perform Recipient’s rights and obligations under this Agreement, and Recipient certifies that such Recipient employees will have previously agreed in writing, either as a condition of employment or in order to obtain the Confidential Information of the Discloser, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such Recipient under this Agreement.
Indemnification/ Limitation of Liability/Disclaimer:
1. Client will defend, indemnify and hold harmless Wholesaler, Developer, and their respective affiliates, officers, directors, employees, and agents from and against damages, costs, liabilities, expenses (including reasonable attorneys’ fees) arising out of: (i) Client's breach of this Agreement; (ii) purchase or use of products and/or services sold by Client; (iii) Wholesaler and Developers’ authorized use of Client's trademarks and logos; (iv) Client’s failure or refusal to redeem, and reimburse or pay Wholesaler for Electronic Offers within the Program; (v) any inaccuracies contained within any Coupon Meta Data provided to Wholesaler or uploaded to the Platform by Client, its service providers, or their respective agents.
2. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA, DAMAGES TO SOFTWARE OR FIRMWARE, OR COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, AND REGARDLESS OF WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
3. Except as expressly provided herein, Wholesaler expressly disclaims any and all warranties of any kind, express, implied or statutory, including without limitation any implied warranties of title, non-infringement of a third party’s rights relating to Wholesaler' technology, merchantability and/or fitness for a particular purpose. Neither this Agreement nor any document furnished under it, unless explicitly stated, is intended to express or imply any warranty with regard to the functionality or uninterrupted performance of any services provided hereunder by Wholesaler, the level of user participation in the Program, or the sales/financial results yielded from the Program. Wholesaler expressly disclaims any and all liability for any failure to perform due to the acts or omissions of Retailer or any participating manufacturer.
General:
1. This Agreement may not be assigned or transferred by either Party without the other Party's prior written consent. Any attempted transfer or assignment by either Party in violation of the foregoing shall be void and of no effect and shall not be binding upon or enforceable against the other Party.
2. Either Party's failure to insist upon the strict performance of any term or condition in this Agreement shall not be construed as a waiver by such Party of such term or condition or of any other term or condition of this Agreement in the future.
3. This constitutes the entire agreement between Client and Wholesaler with respect to the subject matter hereof, and supersedes all prior oral or written agreements, commitments, representations, warranties or understandings with respect thereto. This Agreement may not be altered, amended or added to, notwithstanding any part performance, unless such alteration, amendment or addition is in writing and signed by a duly authorized officer of both Client and Wholesaler.
4. Developer is an intended third-party beneficiary of this Agreement with respect to Sections 6(f) and 9(a), and shall be entitled to enforce these provisions to the same extent as Wholesaler.
5. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect.
6. All notices required or permitted to be given hereunder shall be in writing, effective when received, to the Client at the address set forth above and to Wholesaler.
7. Neither Party shall be liable for any loss or for any failure to perform any obligation hereunder due to causes beyond its control including, without limitation, industrial disputes, power loss, telecommunications failure, acts of God, war, civil unrest, acts of terror or vandalism, or other causes beyond its reasonable control.
8. Neither Party may include reference to this Agreement or the provisions hereof or the relationship created hereby in its press releases or in its contacts with the media without the prior written approval of the other Party.
9. The following provisions, rights, and obligations under this Agreement will survive any termination or expiration of the Agreement: Sections 8, 9 and 10.
10. The section headings used in this Agreement are for reference and convenience only and are not to be used in the interpretation of any provision of this Agreement.

Through submission and acceptance of these terms, the Parties have executed this Agreement of the Effective Date set forth in the preamble to this Agreement.