INMAR PROMOTIONS - CANADA INC. STANDARD TERMS AND CONDITIONS FOR COUPON PROCESSING

These Inmar Promotions – Canada Inc. (“Inmar”) Standard Terms and Conditions for Coupon Processing (“Terms”) shall govern the provision of coupon processing by Inmar for Client.  For purposes of these Terms, Inmar and Client each may be referred to herein as a “Party” or collectively as “Parties”.

Services.  Inmar is a provider of coupon processing services for retailer clients (“Services”).  As part of its business, Client accepts and redeems coupons issued by manufacturers in connection with their products.  More specifically, Inmar will provide the following Services:

1. Invoice and collect coupon redemption funds from manufacturers for coupons submitted by Client.  Such invoicing shall include face value, handling fees, delivery and data management fees (when applicable), and surcharges.  Such surcharges will be applied as more fully set forth in a Coupon Processing Enrollment Form (“Enrollment Form”) for Services.
2. Pay Client for properly redeemed coupons, as determined by Inmar’s process, less adjustments for (i) manufacturer chargebacks resulting from coupon submissions by Client, and (ii) the then current fees due to Inmar. 
3. Provide assistance to Client with respect to communications with manufacturers relating to chargebacks, no-pay status, and coupon promotions generally.
4. Provide transit insurance for Client's shipments from the point of pickup to receipt by Inmar at its receiving office if: (i) Client ships, via an Inmar approved common carrier, from one consolidated Client location directly to Inmar’s receiving office; and (ii) Client supplies documentation in the form of an invoice and signed shipping receipt.

Client Obligations.  Client represents and agrees as follows:

1. Client agrees to use Inmar as its exclusive processor and clearinghouse for processing paper and digital coupons redeemed by Client and for collecting coupon redemption funds relating to such coupons.
2. Client agrees to submit to Inmar only those coupons which have been redeemed in accordance with the manufacturers' requirements.
3. Client will ship to Inmar all such coupons through an Inmar-approved common carrier.
4. Client shall use commercially reasonable efforts to identify and reject, before submission to Inmar, coupons which appear to be misredeemed including, but not limited to, evidence of gang cut, mint condition, or wrinkled condition (“Misredeemed Coupons”).
5. Client shall direct all manufacturers to send coupon redemption payments to Inmar, and agrees to endorse and forward to Inmar any cheques or other form of payment, including invoice documentation, received directly from manufacturers for coupons processed by and submitted through Inmar.
6. Client will accept responsibility for any coupons submitted to Inmar which are not redeemable by the manufacturer due to an act, omission, or negligence on the part of the Client or of the manufacturer.  Client also agrees that Inmar shall have no financial obligation for manufacturer no-pay status decisions or chargebacks, inclusive of chargebacks for shipping and/or surcharges.
7. Client agrees to pay all costs for hardware, software, and communication necessary for Client to access Inmar’s systems.
8. Client authorizes Inmar to endorse and deposit cheques and other forms of payment made payable to Client from manufacturers and/or their agents for coupons processed by Inmar.

Term, Termination and Post-Termination.  The Term shall commence on the Start Date set forth on an Enrollment Form, and continue for the period specified on such Enrollment Form (“Initial Term”).  If an applicable Enrollment Form provides for Automatic Renewal, at the end of the Initial Term, these Terms shall be renewed automatically for one (1) year periods (each one (1) year period shall be defined as a “Renewal Term”) unless terminated in accordance with this Section.  The Initial Term and all Renewal Terms, if any, are collectively referred to as the “Term”.  

Either party may terminate these Terms and an applicable Enrollment Form upon written notice in the event of default by the other party if such default continues beyond the period for cure provided in the section entitled ‘Default’ hereunder.  These Terms and an applicable Enrollment Form may be terminated, upon the expiration of the Initial Term or any Renewal Term, by either party hereto provided that written notice is received by the non-terminating party at least one hundred and twenty (120) days prior to the expiration of the Initial Term or any Renewal Term.  If notice of termination is timely given in accordance with this Section, the obligations of Inmar and Client under these Terms shall continue until the expiration of the Initial Term or the then-current Renewal Term in which such notice is given, at which time these Terms and an applicable Enrollment Form will terminate. Upon termination, Client agrees Inmar may withhold a deposit equal to Client's last six (6) months total chargeback amount to cover all subsequent manufacturer’s chargebacks.  If, however, such deposit does not cover all such chargebacks, Client will be invoiced by Inmar for outstanding chargeback amounts, and Client agrees to make payment to Inmar within thirty (30) days of receipt of the invoice.

Fees and Invoicing.  Fees for Services shall be set forth in an Enrollment Form. Invoices are due and payable as indicated on an applicable Enrollment Form.  Late payments shall be subject to a penalty of 1.5% interest per month. Any disputes regarding invoices must be communicated to Inmar within thirty (30) days of the date of invoice, or such invoice shall be deemed accurate.  The Processing Fee, as set forth on an applicable Enrollment Form shall apply to all coupons submitted by Client to Inmar, including coupons identified by Inmar as non-billable items.  These fees are also applicable to any reprocessing for coupons returned and/or charged back from the manufacturer.  Valid coupons, which were mis-billed by Inmar, will not be charged a Processing Fee when reprocessed by Inmar. All amounts due hereunder are net amounts, and Client agrees that it will be responsible for all sales, use or services taxes of any kind, if applicable, with the exception of taxes due on Inmar’s income. 

Volume and Fee Adjustment.

1. Client’s processing fee per one thousand Client coupons processed (“Processing Fee”) is based upon a minimum coupon volume submitted for processing and processed by Inmar during each twelve (12) month period of these Terms ("Coupon Volume"), as set forth on an applicable Enrollment Form.  If Client's actual coupon volume for each twelve (12) month period is below the agreed upon Coupon Volume, Client agrees to pay Inmar the Processing Fee per thousand on the difference between the agreed upon Coupon Volume and the actual coupon volume processed by Inmar.
2. Inmar shall review Client’s actual coupon volume, account services, processing costs and other expenses at the end of each twelve (12) month period to determine Client's fees for the next twelve (12) month period.  Inmar reserves the right to adjust client’s fees on an annual basis (“Annual Fee Adjustment”). Client will be notified in writing of any such annual fee increase at least thirty (30) days prior to such increase.  In the event Client does not accept the Annual Fee Adjustment, Client may terminate an applicable Enrollment form by providing Inmar with at least thirty (30) days’ prior written notice. 
3. Additional processing requests will be priced at Inmar’s then current rates for such services.

Confidentiality.  The Parties shall each keep confidential any Confidential Information, except that the receiving Party may disclose Confidential Information to its professional advisors and those persons who need to know such Confidential Information in connection with providing the Services, provided such parties are instructed to maintain the confidentiality of the Confidential Information. For purposes of an Enrollment Form, the term “Confidential Information” will mean proprietary and confidential information belonging to a Party, including, without limitation, all documentation, specifications, surveys, design concepts, trade secrets, internal reports and communications; sales information, marketing information and promotional plans; the fees for Services; marketing techniques, marketing plans, mailing lists, purchasing information, price lists, pricing policies, quoting procedures, financial information, customer names, customer data, pricing strategies, and other materials or information relating to the manner in which such Party does business; and any other materials or information related to the business or activities of such Party which are not generally known to others engaged in similar businesses or activities. “Confidential information” shall not include information which (a) was already known to the receiving Party prior to the time that it is disclosed to such Party; (b) is in or has entered the public domain through no breach of an Enrollment Form or other wrongful act of the receiving Party; (c) has been rightfully received from a third party without breach of an Enrollment Form; (d) has been approved for release by the disclosing Party; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing Party has been given reasonable notice of the pendency of such an order and the opportunity to contest it. Each Party shall promptly, as of the termination or expiration of an Enrollment Form and upon request of the other Party, return to the other Party or destroy any such Confidential Information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof). The obligations under this Section shall continue for two (2) years following expiration or termination of an Enrollment Form.

Intellectual Property and Data.  

1. Intellectual Property.  Each party shall own and continue to own all rights it may have in intellectual property developed, invented, gathered, or created by it before or during the term of these Terms.  Except for the license grant set forth in the immediately succeeding paragraph, these Terms shall not be construed to grant to either party any right, title, or interest in any intellectual property rights owned by the other party.  Without limiting the foregoing, all intellectual property rights, title, and interest in the methodology, technology, and know-how that Inmar uses to perform the Services under these Terms, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar.  
2. Data Usage.  Data collected or generated by Inmar in the performance of the Services and held by Inmar in a form that is identifiable to Client shall be and shall remain the property of Client (“Client Data”).  Inmar shall have a perpetual, royalty-free, non-exclusive license to use Client Data to perform the Services, and to aggregate, or otherwise manipulate, or create derivative works from, Client Data in a form that is not identifiable to Client. Client agrees that it will not disclose or transmit any data generated by Inmar in the performance of the Services to any third party without the prior written consent of Inmar.
3. Data Portal.  Inmar may provide Client with a web-based reporting portal with proprietary data access (“Data Portal”).  Client shall not grant access to the Data Portal to any third party.  If Client desires for a third party to have access to the Data Portal, Client may make a request to Inmar in writing, and Inmar may grant the third party such access at its sole discretion.

Disclaimer of Warranties.  EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, INMAR DISCLAIMS ALL WARRANTIES, EXPRESS OR  IMPLIED, REGARDING THE SERVICES PROVIDED BY IT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT, THAT SUCH SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, THE SERVICES PROVIDED BY INMAR ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  IN NO EVENT WILL INMAR BE LIABLE TO CLIENT FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, OR GOODWILL, WHICH MAY ARISE IN CONNECTION WITH THE SERVICES PROVIDED BY INMAR, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF INMAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.   

Limitation.  Unless otherwise limited herein, the liability of Inmar to Client under these Terms or otherwise, regardless of the form of claim or action, will not exceed the amounts actually paid by Client to Inmar for Services provided by Inmar pursuant to these Terms in the prior twelve (12) month period.  

Indemnification.  Except as limited herein, each party (the “Indemnitor”) agrees to defend, indemnify, and hold harmless the other party (the “Indemnitee”) and its officers, directors, and employees from and against any and all damages, losses, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, “Expenses”) that (i) are made against or incurred by the Indemnitee in connection with a third party claim and (ii) arise out of or relate to acts or omissions of the Indemnitor in the performance of these Terms that constitute gross negligence or willful misconduct on the part of the Indemnitor, so long as such Expenses are not primarily caused by the Indemnitee, its officers, directors, or employees.  The indemnification set forth in this Section is conditioned upon (a) the Indemnitee providing the Indemnitor written notice of any claim or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, (b) the Indemnitee providing reasonable assistance and cooperation to enable the Indemnitor to defend the action or claim hereunder, and (c) the Indemnitee refraining from making prejudicial statements associated with such claim without the prior written consent of the Indemnitor. 

Insurance. Each Party agrees throughout the term of an Enrollment Form to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error and omissions liability and professional liability insurance coverage in a reasonable amount, at its own expense.  Upon request, a Party shall furnish to the other a certificate of insurance evidencing the same upon execution of an Enrollment Form.

Default.  Any breach of the terms of these Terms that is not cured within thirty (30) days of receipt of written notice from the non-breaching party will constitute default of these Terms by the breaching party. Insolvency, receivership, bankruptcy, or any similar proceeding initiated against either party will constitute default by that party.

Notices.  Any notice required or permitted by an applicable Enrollment Form shall be in writing and shall be sent by  a recognized commercial overnight courier, or mailed by registered or certified mail, return receipt requested, addressed to the other Party to the address of record set forth on an applicable Enrollment Form,  or to such other contact, address, as may be provided in writing by either Party hereunder. Additionally, as to Inmar, a copy shall be sent to: Inmar, Inc., 1. W. 4th St., Suite 500, Winston-Salem, North Carolina 27101, Attn: General Counsel.

Miscellaneous:

1. Entire Enrollment Form/Amendment.  These Terms, and an applicable Enrollment Form, shall constitute the entire agreement between the Parties with respect to subject matter hereunder. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of both Parties.
2. Force Majeure.  Inmar shall not be liable to Client for any delay or failure of performance of these Terms if such delay or failure is caused by weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, acts of terrorism, civil disturbance, or any cause beyond the control of Inmar (each an “Event of Force Majeure”).  If a delay or failure of performance by Inmar is caused by an Event of Force Majeure, Inmar shall notify Client and shall be released without any liability from its performance under these Terms to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.    
3. Governing Law and Jurisdiction.  These Terms and an applicable Enrollment Form will be governed by and interpreted and enforced in accordance with the laws of the Province of New Brunswick, and the federal laws of Canada applicable therein, without reference to its conflict of law rules.
4. Language. The parties hereto have expressly requested that the Enrollment Form and these Terms be drafted in English. Les parties aux présentes ont expressément requis que le présent contrat et les documents y afférant soient rédigés en langue anglaise.
5. Severability.  If any term or condition of these Terms or an the Enrollment Form is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of These Terms or an Enrollment Form, unless enforcing the balance of the Enrollment Form would deprive either Party of a fundamental benefit of its bargain.
6. Relationship.  Inmar shall act as an independent contractor in the performance of Services provided for herein and nothing herein shall be construed to create the relationship of principal and agent, master and servant, or a partnership or joint venture between Inmar and Client.
7. Waiver.  Failure of either party to enforce a specific provision of these Terms shall not constitute waiver of such provision or of any other provision of these Terms.  No waiver of any of the provisions of these Terms shall be deemed to be or shall constitute a waiver of any other provision of these Terms, whether or not similar, nor shall any waiver by either party of any default hereunder constitute a waiver of subsequent defaults of the same or different kind.  No waiver of any provision of these Terms shall be binding on the parties hereto unless it is executed in writing by the party making the waiver.
8. Reduction of Statute of Limitation.  No action arising out of these Terms may be brought by either party more than one (1) year after the date on which the cause of action has accrued.  
9. Assignment/Binding Effect.  Except as specifically permitted herein, a Party’s obligations may not be assigned without the prior written consent of the other Party, such consent not to be unreasonably withheld. Any assignment without such consent shall be void upon written notice. Notwithstanding the foregoing, Client may assign an Enrollment Form to a purchaser of substantially all of the assets of Client, and either Party may assign an Enrollment Form to an Affiliate upon written notice to the other Party.  
10. Change of Control.  Notwithstanding the foregoing, a change in control from Client to another entity is permitted, upon at least sixty (60) days’ prior written notice to Inmar (“Change of Control Notice”). Such Change of Control Notice must provide the following: (i) Legal name of new entity to which Client is transferring; (ii) legal address of new entity; (iii) effective date of change of control; (iv) a copy of an applicable federal corporation or other such registration with the applicable Government of Canada office.  Inmar reserves the right to reject a Change of Control Notice, such rejection shall be issued in writing to Client within ten (10) days of Inmar’s receipt.