Legal Terms and Conditions For Insertion Orders

These terms and conditions ("Terms") together with the fully executed Insertion Order ("Insertion Order") constitute a binding agreement ("Agreement") between Inmar Brand Solutions, Inc. ("Inmar"), and the entity signing the Insertion Order ("Advertiser"). In the event of any conflict between the Insertion Order and the Terms, the Terms will govern. The Agreement will become effective upon execution of the Insertion Order by both parties.

1. Inmar and Advertiser agree to the following for direct-to-card coupons ("DTC Coupons"):

1.1 Inmar Obligations: Inmar agrees to perform the following functions on a timely basis if Advertiser completes all required fields of the Direct to Card Offer Details section of the Insertion Order:

  1. Inmar will work with Advertiser to set-up each new DTC Coupons based on the information provided in each Insertion Order and resolve any discrepancies between the retailer and Advertiser.
  2. Inmar will notify Advertiser within ten (10) business days that a new DTC Coupon is approved and implemented at a specified retailer.
  3. Inmar will manage the Inmar participating network of retailers ("Inmar Retailer Network") and provide Advertiser with any retail network additions, deletions or changes.
  4. Inmar will make available to the Inmar Retailer Network paperless digital coupon content that is sourced directly by Advertiser for display on retailers’ coupon selection page for loading to the shopper loyalty card of such retailers.
  5. Inmar will provide Advertiser with reporting data pertaining to Advertiser’s offer details to the extent permitted by the retailer.

1.2 Advertiser Obligations: Advertiser agrees to perform the following functions on a timely basis if Advertiser completes the Direct to Card Offer Details section of the Insertion Order:

  1. Advertiser will provide DTC Coupons to Inmar for placement within the Inmar Retailer Network.
  2. Advertiser will accept Inmar reporting as approved by retailer.
  3. Advertiser will adhere to all offer rules and regulations outlined by manufacturer and retailer and must provide Inmar any terms and conditions as provided by manufacturer along with any retail participant limitations or geographic constraints.
  4. Advertiser, if different than the manufacturer, will notify manufacturer of liability for offers, which includes distribution, face, and handling charges. Advertiser, if different than the manufacturer, must receive proof of such offer approval from manufacturer regarding such liability in writing or email.
  5. Advertiser will ensure all retailer trademarks, logos, copyright materials and consumer retailer selections are displayed to the consumer according to retailer guidelines. Inmar has the right to audit such activity on behalf of retailer at any time. In the event of any breach of a retailer’s guidelines, Advertiser must correct and adhere to such guidelines or refrain from use of such retailer information.
  6. Advertiser will submit offer images and text to Inmar for offers included in each Insertion Order reasonably in advance of the publishing date of each offer to enable Inmar to process and upload offers into the Inmar offer manager within the Data Portal ("Offer Manager Digital Portal") prior to the DTC Coupon being published and distributed to defined publishing sites. Advertiser represents and warrants that, once Advertiser has submitted artwork for an offer, all artwork and all intellectual property included in such artwork, including, but not limited to, trademarks, logos or copyright materials, have been duly approved and authorized for publication by the appropriate party.
  7. Advertiser is at all times solely responsible for ensuring that each DTC Coupon is lawful and compliant with all applicable laws, rules and regulations. Without limiting the foregoing, Advertiser agrees that, to the extent required by applicable law, Advertiser shall ensure that notices of DTC Coupons are timely provided to any required governmental authorities, and shall otherwise procure such consents, licenses or approvals necessary to publish and process each DTC Coupon.
  8. Advertiser will submit any modifications to any existing Insertion Order to Inmar, in writing. No verbal modifications or deletions will be accepted by Inmar.

2. Inmar and Advertiser agree to the following for reimbursement to incentive submitters ("Incentives Settlement):

2.1 Inmar Obligations: Inmar agrees to perform the following functions on a timely basis if Advertiser completes all required fields of the Incentives Settlement Offer Details section of the Insertion Order:

  1. Classify and determine quantities and validity, where applicable, of Advertiser’s incentive promotions received from incentive submitters. Advertiser’s intangible media incentive promotions shall be described on the pricing section of each applicable Insertion Order "Incentive(s)".
  2. Use commercially reasonable efforts, as applicable, to validate performance and identify suspect digital or other intangible Incentive transactions.
  3. Invoice Advertiser a one time, up front fee for reimbursement amounts due to Incentive submitters and any fees due, as set forth on the pricing section of each applicable Insertion Order ("Inmar Invoice"), allowing at least one day's notice to permit Advertiser to transfer sufficient funds to Inmar.
  4. Prepare and release reimbursement payable to Incentive submitters, provided that sufficient funds have been received by Inmar to cover such reimbursement. If Advertiser fails to provide such funds by the due date referenced on the Inmar Invoice, Inmar may elect not to release reimbursement on behalf of Advertiser ("Held Payment") and a "Held Payment Maintenance Fee" will be assessed for each Held Payment as set forth on the pricing section of each applicable Insertion Order.
  5. Place certain Incentive submitters in a no-pay status at the written instruction of Advertiser.
  6. Use reasonable methods and procedures, including the use of a reliable third party as needed, for verification of Incentive submitters.
  7. Provide access to monthly computerized reports to show Incentive transactions and marketing information. Inmar will provide store level detail, when available, to support Advertiser’s payment decisions.
  8. Provide customer service to Incentive submitters on behalf of Advertiser.
  9. Utilize, as appropriate, all available one-count programs. Advertiser agrees that Inmar may provide one-count processors with the promotional information necessary to process Advertiser’s coupons. Inmar reserves the right to suspend such one-count processing if Advertiser fails to pay Inmar in accordance with the terms of this Agreement.
  10. Process Incentives received as of the termination date within thirty (30) days after the termination date. Advertiser agrees to pay any and all amounts outstanding by the due date on the final Inmar Invoice. Any Advertiser Incentives received after the termination date will be forwarded, at Advertiser’s expense, as directed by Advertiser.

2.2 Obligations of Advertiser: Advertiser agrees to perform the following functions on a timely basis if Advertiser completes the Incentives Settlement Offer Details section of the Insertion Order:

  1. Advertiser agrees to use commercially reasonable efforts to ensure that each Advertiser Incentive shall contain an all numeric offer code which identifies the Incentive ("Offer Code"), unique to each Incentive. Such Offer Code will follow the industry standard guidelines for Incentives.
  2. Advertiser shall (i) enter distribution information into the Inmar system for each Offer Code it distributes at least ten (10) days prior to the distribution of each such Offer Code or (ii) furnish Inmar with a completed Offer Code Addition Form for each Offer Code at least fifteen (15) days prior to the distribution of each such Offer Code. Advertiser agrees that Inmar may (i) include such Offer Code data in its in-house coupon validation service database and (ii) make such Offer Code data available to authorized third parties (e.g., retailers, one count processors and technology vendors). Advertiser agrees to pay an "Offer Entry and Revision Fee" as set forth on the pricing section of each applicable Insertion Order for each Offer Code Inmar enters to its system or revises on behalf of Advertiser. In the event Advertiser fails to provide the information in (i) or (ii) as set forth herein, Advertiser agrees to pay Inmar an "Unidentified Offer Fee" as set forth on the pricing section of each applicable Insertion Order.
  3. Advertiser agrees that Inmar is authorized, upon written notice to Advertiser and unless otherwise instructed by Advertiser, to place an Incentive submitter into a no-pay status, provided that Inmar’s current records substantiate misredemption.
  4. Advertiser shall not instruct Inmar to place an Incentive submitter in a no-pay status unless and until Advertiser has a reasonable and good faith basis for doing so. Advertiser agrees to indemnify and hold harmless Inmar against Advertiser’s election or exercise of any payment option/decision relating to its Incentives.
  5. Advertiser has the final responsibility for final payment decisions in all cases in which Inmar has withheld payment due to suspected misredemption.
  6. Advertiser acknowledges and agrees that for Incentives processed from electronic data rather than the tangible paper Incentive, Inmar will not be responsible for services that require possession of tangible Incentives.

3. Fees: Advertiser agrees to the following:

3.1 Advertiser agrees to pay Inmar based on the pricing section of each applicable Insertion Order. Fees for additional services requested or required by Advertiser will be subject to Inmar's then current pricing for such services (supplemental price list available upon request). Examples of "additional services" include, but are not limited to, rush orders, special billing, and offer cancellation.

3.2 Advertiser, if different than the manufacturer, represents and warrants that Advertiser has approval from manufacturer to publish each offer on each Insertion Order and has approval from manufacturer that manufacturer will pay retailer face value (if applicable), any handling fees and processing and distribution fees associated with said offer. Manufacturer agrees to make payment of such amounts associated with said offer in case Advertiser/Agency defaults with reimbursement of such amounts.

4. Payment of Fees:

4.1 Inmar will invoice Advertiser for fees due ("Inmar Invoice"), as set forth in each applicable Insertion Order.

4.2 Prior to the launch of Advertiser initial offer, Advertiser may be required and agrees to fund a security deposit or prefund amount to be agreed upon by both parties. Additional funds may be needed by Inmar during the term of each Insertion Order due to volume/invoice amount increases or payment performance. Inmar will notify Advertiser of any changes to security deposit or prefund amount requirements. Upon termination and completion of payment of fees due to Inmar, Inmar will return to Advertiser any unused deposit or prefund funds.

4.3 Should Advertiser fail to remit payment on an Inmar Invoice by the due date as set forth in each Insertion Order, Inmar will attempt to notify the Advertiser of the delinquent amount. If Advertiser fails to provide full payment within thirty (30) days of the Inmar Invoice due date or if there is no longer sufficient funding to pay consumers, Inmar may, at its option, cease offer transaction routing and manufacturer agrees to pay such delinquent amount if Advertiser defaults on payment of such fees to Inmar.

5. Miscellaneous:

5.1 Confidentiality. Both parties recognize the confidential nature of the information shared in the Insertion Order. Both parties agree to maintain the confidentiality of such information and to use it only as set forth herein. Each party further agrees that the confidential information shall not be disclosed to any third party, except that a receiving party may disclose the confidential information or portions thereof to those of its directors, officers, employees, and representatives who need to know such confidential information for the purpose of the relationship between the parties.

5.2 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 each Insertion Order. Except for the license grant set forth in the immediately succeeding paragraph, each Insertion Order 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 each Insertion Order, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar. Advertiser hereby grants to Inmar a non-exclusive, royalty-free license to reproduce, display and distribute (and, as applicable, digitally transmit) all materials and information provided by Advertiser (collectively "Advertiser Materials"), including, without limitation, any logos or other trademarks provided by Advertiser, for purposes of publishing or otherwise supporting the DTC Coupon or Receipt Reward. Advertiser warrants that it has all necessary rights in the Advertiser Materials that it provides to Inmar, and that Inmar’s exercise of the licenses granted in this paragraph will not infringe the intellectual property rights of any third party.
  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 Advertiser shall be the property of Advertiser ("Advertiser Data"). Inmar shall have a perpetual, royalty-free, non-exclusive license to use Advertiser Data to perform the services, and to aggregate, or otherwise manipulate, or create derivative works from, Advertiser Data in a form that is not identifiable to Advertiser. Advertiser 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 Advertiser with a web-based reporting portal with proprietary data access ("Data Portal"). Advertiser shall not grant access to the Data Portal to any third party. If Advertiser desires for a third party to have access to the Data Portal, Advertiser may make a request to Inmar in writing, and Inmar may grant the third party such access at its sole discretion.

5.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN EACH INSERTION ORDER, 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 EACH INSERTION ORDER, THE SERVICES PROVIDED BY INMAR ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL INMAR BE LIABLE TO ADVERTISER OR MANUFACTURER FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOST TIME, SAVINGS, PROPERTY, PROFITS, DATA, 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.

5.4 Limitation. Unless otherwise limited herein, the liability of Inmar to Advertiser or manufacturer under each Insertion Order or otherwise, regardless of the form of claim or action, will not exceed the fees actually paid by Advertiser or manufacturer to Inmar for services provided by Inmar under such Insertion Order.

5.5 Indemnification.

  1. Client shall defend, indemnify, and hold harmless Inmar and its officers, directors, and employees, and its parent, subsidiaries and affiliates, from and against any and all damages, losses, claims, costs and expenses (including reasonable attorneys’ fees), judgments, and liabilities (collectively, "Expenses") in connection with any third-party claim arising from or related to (a) Inmar’s publication, copying, display or distribution of the Client artwork delivered to Inmar for publication in connection with DTC Coupons, including infringement of any third party’s copyright, trademark or other intellectual property right, (b) any products or services offered or sold through the DTC Coupons, (c) any errors or omissions with respect to any Client Materials provided to Inmar or any content approved by Client, or (d) any redemption of DTC Coupons.
  2. Except as otherwise 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 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 this Agreement 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.
  3. The indemnifications set forth in this Section are conditioned upon (a) the Indemnitee providing the Indemnitor with 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.

5.6 Governing Law/Jurisdiction. This Insertion Order shall be governed by and construed in accordance with the laws of the State of North Carolina, without reference to the conflict of law rules of such state. The parties hereto irrevocably agree that any legal action or proceeding with respect to this Agreement shall be brought exclusively in the courts in the State of North Carolina, and further agree to submit to the jurisdiction and venue of such courts.

5.7 Modification. These Legal Terms and Conditions for Insertion Orders are incorporated by reference into the Insertion Order. Each Insertion Order may not be modified except by mutual agreement in writing or electronic form.