Standard Terms and Conditions for Scanner Application Services

These Standard Terms and Conditions for Scanner Application Services ("Terms and Conditions") shall govern the provision of Scanner Applications™ services provided by Inmar Brand Solutions, Inc., and its affiliates (collectively, "Inmar") to the Client identified on an applicable Order Form ("Client"). Together, an Order Form and these Terms and Conditions may be referred to as an "Agreement". For purposes of these Terms and Conditions, Inmar and Client each may be referred to herein as a "Party" or collectively as "Parties". Capitalized terms herein not otherwise defined shall have the meaning as set forth in the applicable Order Form or Supplemental Terms and Conditions, if any, herein.

Either Party may terminate these Terms and Conditions and an applicable Order Form upon written notice in the event of default by the other Party if such default continues beyond the period for cure provided in Section 15 (Default) hereunder. These Terms and Conditions and an applicable Order 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 ninety (90) 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 and Conditions 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 Conditions and an applicable Order Form will terminate. Upon termination of these Terms and Conditions or an applicable Order Form, Client agrees to pay all undisputed outstanding invoices to Inmar.

Inmar may terminate or suspend the Services immediately if, in its sole discretion, the Services would violate any applicable law, order or regulation.

Definitions. For purposes of these Terms and Conditions, the following definitions shall apply:
1. "Client" shall mean the client as set forth in an applicable Order Form. For purposes of these Terms and Conditions, Client is a manufacturer, producer and/or distributor of Products.
2. "Products" shall mean consumer products which are regularly offered in retail stores throughout the United States.
3. "Promotions" shall mean a program(s) developed by Inmar which effectively plans and manages special retail sales promotions through merchandising support for Products, and offered by Inmar to Retailers for participation in its Scanner Applications™ promotions.
4. "Order Form" shall mean the form entitled Order Form for Scanner Application™ Promotions as agreed to between Client and Inmar, under which Client submits an order for selected Products or Services.
5. "Retailers" shall mean a business that sells goods to the public in relatively small quantities for use or consumption rather than for resale.
6. "Services" shall mean the exclusive retail sales Promotions provided by Inmar to Client for purposes of receiving and transmitting to Retailers amounts due Retailers for participating in Promotion Programs. For purposes of these Terms and Conditions, the parties agree that Inmar shall have no authority to bind or represent Client in any manner.
Inmar Services. Inmar shall utilize its proprietary procedures to validate Retailer participation in each Promotion Program. A description of the Services to be provided shall be set forth on an applicable order form. As agent for Client, Inmar shall issue payments duly authorized by Client to Retailers that have participated in Promotion Programs the Payment Factor times the verified number of units of Product(s) sold by Retailer. Inmar shall follow Client instructions regarding payment of disputed amounts to Retailers.
Duties of Client. Following are the duties of Client in order to enable Inmar to provide Services: (i) participate in one or more sales Scanner Applications™ Promotions ("Promotion Program(s)"); (ii) select Products and designate periods of time under which selected Products shall be sold under each Promotion (each a "Promotion Period"); (iii) designate a market area in which selected Products shall be sold (a "Market Area"), an amount per unit of Product to be paid to Retailers as merchandising incentive and reimbursement for resale price reduction (the "Payment Factor" under each applicable Promotion Program; and (iv) provide Inmar with at least thirty (30) days’ prior written notice identifying the selected: (a) Product(s); (b) Market Areas; (c) Payment Factor(s); and (d) Promotion Period for each Promotion Program ("Promotion Notice"); and (e) refer to Inmar any and all inquiries relating to Scanner Applications™ Promotions from any Retailer not participating in any Promotion Program.
Conformity with Applicable Law. Client’s use of the Services must in all cases comply with all applicable laws, orders and regulations. For clarity, compliance with applicable laws and regulations includes compliance with any enforceable Marketing Denial Order(s) issued by the U.S. Food & Drug Administration.
Audit Rights. Upon at least ten (10) business days’ prior written notice, at Client’s expense, and during normal business hours, Client shall have the right to audit Inmar’ procedures for: (i) determining the number of units of Product(s) sold; (ii) the amount of price reduction given to consumers; and (iii) the extent of Retailer participation in applicable Promotion Program(s) (the "Audit").
The Audit may assess relevant systems, and/or the Inmar records relating to the Services being provided under these Terms and Conditions. For the avoidance of doubt, neither Client nor its auditors shall be entitled to have access to the data of any other Client of Inmar or to Inmar’s costs or margins of profit in connection with the provision of Services.
Term, Termination and Post-Termination.
1. The initial term of an applicable Order Form shall commence on the Order Form Effective Date, and continue for the period as established on an applicable Order Form (“Term”). Either Party may terminate these Terms and Conditions without cause upon at least thirty (30) days’ prior written notice to the other Party.
2. Either Party may terminate these Terms and Conditions without cause upon at least thirty (30) days’ prior written notice to the other Party. Either Party may terminate these Terms and Conditions and an applicable Order Form upon written notice in the event of default by the other Party if such default continues beyond the period for cure provided in Section 15 (Default) hereunder. Upon termination of these Terms and Conditions or an applicable Order Form, Client agrees to pay all undisputed outstanding invoices to Inmar.
3. Inmar may terminate or suspend the Services immediately if, in its sole discretion, the Services would violate any applicable law, order or regulation.
Fees; Fee Adjustments; Expenses.
1. Fees. Client agrees to pay Inmar the fees agreed to in an applicable Order Form. Client agrees that fees for Services shall be based upon the amount per unit of Product(s) sold by Retailers under all Promotion Programs in which Client participates in each calendar year, calculated according to the schedule set forth on an applicable Order Form. Such Order Form will become part of these Terms and Conditions and will incorporate all of its provisions. Unless agreed to otherwise in an applicable Order Form, Client agrees to pay Inmar invoices within thirty (30) days of the Inmar invoice date. Funds must be presented in U.S. currency. All invoices not paid by Client by the Inmar invoice date are subject to a past due charge of one and one-half percent (1½%) per month. In the event that any Inmar invoice is collected by or through an attorney or collections agent, Inmar shall be entitled to recover reasonable attorneys’ fees and the cost of collection.
2. Reservation Deposit. Upon Client’s issuance of a Promotion Notice for each applicable Promotion Program, Client shall pay a reservation deposit ("Deposit"), as more fully set forth on an applicable Order Form, for each Product to be featured in each designated Market Area for each applicable Promotion Period. Inmar shall credit such Deposit against amounts payable to Client. At the conclusion of each Promotion Period, or when the deposits paid by Client have been exhausted (if exhausted prior to the end of an applicable Promotion Period), Inmar shall issue to Client a written statement showing amounts paid to each Retailer in each Market Area, an estimation of remaining amounts to be paid by Client pursuant to an applicable Promotion Period (if any).
3. Fee Adjustments. Services provided pursuant to an applicable Order Form may be subject to an annual price increase in an amount not to exceed five percent (5%) per year.
4. Expenses. If applicable, Client shall reimburse Inmar for reasonable travel costs and expenses incurred.
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 and the receiving Party shall be responsible for any breach of these confidentiality obligations due to any disclosure made by any such Parties. The term "Confidential Information" will mean all communications, documents, and other information, whether in written, oral, electronic, or other form, that any disclosing Party furnishes or otherwise discloses to a receiving Party in connection with an applicable Order Form, including, but not limited to, the existence of these Terms and Conditions, the existence of discussions between Inmar and Client, financial and business information, computer software, processes, pricing policies, product plans, designs, market research and analysis, costs, customer and supplier lists, strategies, forecasts, know-how, data, methodologies, concepts, trade secrets, inventions and ideas, and all other information disclosed by Inmar or Client pursuant to these Terms and Conditions. Any Confidential Information supplied by either party to the other party prior to the execution of an applicable Order Form and these Terms and Conditions shall be considered in the same manner and be subject to the same treatment as the Confidential Information made available after an applicable Order Form and these Terms and Conditions. "Confidential information" shall not include information which (i) at the time of disclosure or thereafter is in the public domain or becomes generally known to the public through no fault of the receiving Party; (ii) was available to the receiving Party on a non-confidential basis from a source other than the disclosing Party, provided that such source was not known by the receiving Party to be bound by a confidentiality agreement with the disclosing Party; (iii) is known to the receiving Party (as evidenced by its written records) prior to receipt thereof from the disclosing Party; or (iv) is required to be disclosed by a court of competent jurisdiction or by law, provided that the disclosing Party is given prior written notice of such disclosure (to the extent legally permitted). Each Party shall, upon request, 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 four (4) years following expiration or termination of an Order Form.
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 set forth on an applicable Order Form. These Terms and Conditions 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 and Conditions, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar.
Representations and Warrants. Each party represents and warrants to the other party that (a) it has the full right, power and authority to enter into and perform pursuant to these Terms and Conditions, and such does not constitute a breach by such party of any other agreement or understanding with any other person, firm or entity; (b) it has all necessary license rights in and to any trademarks, trade names, designs and logos used by such party in connection with performing its obligations or exercising its rights under these Terms and Conditions, and that such do not infringe the intellectual property rights of any person or entity; (c) it shall, throughout the term(s) of of an applicable Order Form, comply with all federal, state, and local laws, rules and regulation as they relate to these Terms and Conditions; and (d) it will use commercially reasonable efforts to maintain acceptable performance of its duties and obligations based upon industry standards.
Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS, 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 AND CONDITIONS, THE SERVICES PROVIDED BY INMAR ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSSES, OR COSTS (INCLUDING REASONABLE 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 either Party under these Terms and Conditions, an applicable Order Form and/or applicable Supplemental 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 and Conditions in the prior twelve (12) month period for applicable Services or Products selected pursuant to an applicable Order Form.
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 or government investigation and (ii) arise out of or relate to acts or omissions of the Indemnitor in the performance of these Terms and Conditions 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, government investigation, or cause of action upon which the Indemnitee intends to base a claim of indemnification hereunder, as applicable, (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 or investigation without the prior written consent of the Indemnitor.
Insurance. Each Party agrees throughout the term of an Order Form to maintain in full force and effect commercial general liability, umbrella 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 Order Form.
Default. Any breach of these Terms and Conditions that is not cured within thirty (30) days of receipt of written notice from the non-breaching Party will constitute default of these Terms and Conditions by the breaching Party. Failure of Client to make any payment due to Inmar shall constitute default by Client if such non-payment continues for a period of ten (10) days after receipt of written notice from Inmar. 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 Order 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 as set forth on an applicable Order 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., 635 Vine Street, Winston-Salem, North Carolina 27101, Attn: General Counsel.
Miscellaneous.
1. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure of performance of these Terms and Conditions 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 a Party (each an "Event of Force Majeure"). If a delay or failure of performance by Inmar is caused by an Event of Force Majeure, an affected Party shall notify the other Party and shall be released without any liability from its performance under these Terms and Conditions to the extent and for the period of time that such performance is prevented by the Event of Force Majeure.
2. Governing Law and Jurisdiction. These Terms, and an applicable Order Form, shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to conflict of law principles, and shall benefit and be binding upon the Parties hereto and their respective successors and assigns. The parties hereto irrevocably agree that any legal action or proceeding with respect to this Order Form 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.
3. Reduction of Statute of Limitation. No action arising out of these Terms and Conditions may be brought by either Party more than one (1) year after the date on which the cause of action has accrued.
4. Entire Agreement/Amendment. These Terms and Conditions, an applicable Order Form, and schedules, if any, shall constitute the entire agreement between the Parties with respect to the subject matter hereunder. No amendment or modification hereof shall be valid unless in writing and signed by a duly authorized representative(s) of both Parties.
5. 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.
6. 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, either Party may assign an Order Form to a purchaser of substantially all of the assets of such Party.
7. Waiver. Failure of either Party to enforce a specific provision of these Terms and Conditions shall not constitute a waiver of such provision or of any other provision of these Terms and Conditions. No waiver of any of the provisions of these Terms and Conditions shall be deemed to be or shall constitute a waiver of any other provision of these Terms and Conditions, 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 and Conditions shall be binding on the Parties hereto unless it is executed in writing by the Party making the waiver.
8. Severability. If any term or condition of these Terms and Conditions or an applicable Order Form are 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 and Conditions or an applicable Order Form, unless enforcing the balance of the Order Form would deprive either Party of a fundamental benefit of its bargain.

End of Terms

Last Update: February, 2023

Regulated Products Addendum to Follow

Regulated Products Addendum:

To the extent any Order Form involves the promotion of any products containing alcohol, tobacco, CBD, or other substances the promotion or marketing of which may be subject to federal, state and local law, rules or industry regulations ("Regulated Product(s)"), this Section will apply.
Client shall be solely responsible for compliance with all federal, state and local law, rules or industry regulations regarding Regulated Products.
Client is responsible for ensuring that the Regulated Products being promoted must be able to be legally sold to adult consumers in the U.S. To the extent alcoholic beverages are being promoted, Client will ensure that the alcoholic beverage's labeling and packaging will be compliant with the regulations of the Alcohol and Tobacco Tax and Trade Bureau ("TTB") and with all applicable state and local laws and regulations, and Client will ensure that any and all statements, claims, and information appearing on the product labeling and in any Client-owned or -approved marketing materials regarding the Regulated Products will be truthful and accurate.
Client will be solely responsible for ensuring that such Regulated Products Promotions will comply with all applicable state and federal laws and regulations, including where applicable any rules or written policies established by alcoholic beverage regulatory agencies.

End of Addenda