Advertiser Agreement

Last Updated: July 09, 2018


The following sets forth the terms and conditions on which Knotis agrees to provide, to Advertiser, their proprietary marketing platform and service, through which it develops and implements online and digital advertising campaigns (the “Services”) to incentivize Advertiser’s consumer base (the “Consumers”) through electronic coupons, discounts and/or rebates (each, an “Offer” or “Reward”) to be redeemed by Consumers (collectively, the “Campaign”). These Terms and Conditions are incorporated by reference into any Insertion Orders to which these Terms and Conditions are attached (collectively, the “Agreement”). In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties agree as follows:


Services.


Engagement.

Advertiser hereby engages Knotis to provide the Services during the Term, and Knotis hereby accepts such engagement and agrees to provide the Services to Advertiser during the Term in accordance with the terms and conditions of this Agreement. Nothing in this Agreement shall prevent Knotis from offering, licensing, distributing, marketing or otherwise selling or providing the Services, Campaigns or any products or services similar thereto to any third party. Advertiser acknowledges and agrees that Knotis may operate similar campaigns at the same time as Advertiser’s Campaign.

Promotional Materials.

Advertiser Content. In order to facilitate the performance of the Services by Knotis, Advertiser shall submit to Knotis certain content and marketing materials, including, without limitation, names, graphics, images, symbols, trademarks, service marks, logos, trade names and other content (collectively, the “Advertiser Content”) no later than five (5) days prior to the Requested Start Date or as otherwise requested by Knotis. Knotis is authorized to resize, reformat and otherwise render such Advertiser Content to create and format certain content, inserts and digital advertising material (“Promotional Materials”) as necessary for the provision of the Services and the Campaign. Advertiser hereby grants to Knotis and its Partners a nonexclusive, worldwide, transferable, sublicensable license to display, use, perform, publish, copy, reproduce, transmit, distribute, and create derivative works of the Advertiser Content, including the Promotional Materials, if any, solely in order to perform the Services. Advertiser acknowledges and agrees that Advertiser is solely and exclusively responsible and liable for all Advertiser Content, whether or not it is included in any Promotional Material or Campaign. Notwithstanding the foregoing, Knotis shall not be obligated to use any of the Advertiser Content and in no event shall Knotis be required to use any Advertiser Content that violates any applicable law, rule, or regulation.

Modification and Approval. Knotis shall not make any substantive changes to the Advertiser Content without the Advertiser’s prior written consent; provided, that Knotis shall have the right to modify and/or re-format all or any portion of the Advertiser Content without notification to Advertiser or consent in order to format such Advertiser Content as necessary for use in connection with any Promotional Materials and Services. If Advertiser approves any such modification or reformation for one purpose or Campaign, Advertiser shall be deemed to have generally approved such modification and/or reformation and Knotis shall not be obligated to seek Advertiser’s consent for future uses conforming thereto.

Advertiser Obligations.

Commitment. The total amount to be spent by Advertiser for each Campaign (the “Budget”) will be uncapped unless Advertisers and Knotis agree to a Budget Cap which will be set forth in an Insertion Order attached hereto as Exhibits. Insertion Orders shall be determined and agreed to by both parties. The Budget for each Campaign is equal to the total commission to Knotis; provided, however, Knotis shall be entitled to exceed the Budget up to an amount equal to ten percent (10.0%) of the Budget, as required to fund the Campaign. In such instance, Advertiser shall honor any such additional Offers and reimburse Knotis for the discount credited to the Consumer’s payment card account as a result of Consumer’s redemption of such Offers.

Information from Consumers and Third Party Vendors. In order to operate the Campaign, Knotis must obtain and use certain types of information ("Platform Data"). Platform Data is required, among other things, to ensure the accuracy of the Campaign's records and accounts; determine eligibility for rewards; and ensure proper crediting of rewards and fees, if applicable. Advertiser agrees that Platform Data will be used or shared with Third Party Vendors only in the operation of the Campaign as defined in this Agreement (“Third Party Vendors” shall mean third party service providers, publishers, contractors, agents, and Financial Institutions involved in the provisioning of the Services to be performed hereunder).

Advertiser agrees to provide all the Platform Data required as Knotis may deem appropriate for the purpose of operating the Campaign. You also agree to notify Knotis of any changes to your Platform Data within 5 business days of such changes.

For merchants agreeing to accept American Express cards, you agree to comply with the data protection requirements set forth in Exhibit A, attached hereto and made apart hereof, for Loyalty Data associated with American Express Payment Cards. You also (i) acknowledge that you are aware of the data security standards of the Payment Card industry (“PCI DSS”) in general and VISA, MasterCard, American Express and Discover, in particular, and the Applicable Laws, rules and regulations to protect against any destruction, loss, alteration, or disclosure of, or unauthorized access applicable to any information relating to an identified or identifiable individual (“PII”), including without limitation the Gramm-Leach-Bliley Act, (ii) represent that you have a comprehensive information security program in compliance with PCI DSS and such Applicable Laws and (iii) agree to protect Loyalty Data in compliance with PCI DSS and such Applicable Laws.

Authorization. Some Consumers may opt to register their payment cards (Payment Card” shall mean any registered payment card, debit card or credit card issued by Financial Institutions and supported by Knotis) with Knotis in order to allow their Financial Institution to automatically apply funds for redeemed offers directly to cardholder accounts (“Financial Institution” shall mean those financial services institutions that have arrangements with the Program to facilitate the validation of Offer Redemptions and the Settlement function, if applicable, including, without limitation, correspondent banks or financial intermediaries, payment network partners (such as MasterCard and VISA), Payment Card issuers or payment processing services).

All participating Consumers including those who register their payment cards with the Program and redeem offers (“Redemption” (and variations thereof) shall mean the act of consummating a purchase of goods or services as advertised in, and in accordance with the terms and conditions of an Offer, with the use of a registered payment card) will become users of the Campaign in accordance with Knotis’s or registering Third Party’s terms of service and privacy policy. Advertiser acknowledges that in performing the Services, Knotis or its Third Party Vendors will collect, use and disclose Platform Data in accordance with the privacy policy as in effect from time to time. Advertiser authorizes the following payment card networks (i.e. Visa, MasterCard, Discover and American Express) or other third party data providers, ie. Linkable Networks, as applicable, to monitor, collect, identify, and match payment transaction records that the payment card networks capture for the benefit of the consumers who register their payment cards with the Knotis and to forward the relevant payment transaction records to Knotis or to its Third Party Vendors.

Knotis owns all right, title and interest in the Program Platform, in data collected and generated from operation of the Services, and in any other technology or materials developed by Knotis, and reserves all right therein; provided, however, that information relating exclusively to the performance of the Services shall be kept confidential and used solely for performance of the Services. We may use, however, Platform Data collected in providing the Services to develop aggregated analytics with respect to performance metrics, so long as such Program Data is not publicly attributable to and no reference is made to Advertiser. You acknowledge and agree that Knotis may use and share Platform Data collected by it hereunder with any Third Party Vendors in order to perform its contemplated services.

Information and Instructions. In addition to the obligations with respect to Promotional Materials set forth above, Advertiser will provide all information and other assistance as necessary for Knotis to perform the Services and implement the Campaign. Knotis may adjust the delivery and performance schedule set forth in the Insertion Orders due to any act or omission of Advertiser or failure by Advertiser to provide such Advertiser Content, information and/or assistance. Knotis shall not be liable for any costs, expenses or liabilities resulting from the acts or omissions of Advertiser or from any Advertiser Content, or information or delivery schedule delays caused by Advertiser or resulting from Advertiser’s failure to fulfill any of its obligations under this Agreement.

Interaction with Consumers.

Advertiser acknowledges and agrees that Knotis and its participating financial institutions, payment networks and/or processor partners (each, a “Partner”) shall have the sole and exclusive right to (i) communicate the existence and terms of all Offers to Consumers (including any Offer related to Advertiser) and (ii) provide customer support to Consumers in connection with such Offers.

Partner Statement Credits.

Advertiser acknowledges and agrees that its Offers may be fulfilled through payment card statement credits applied directly to the statement for the Partner card designated by the Partner cardholder to the applicable Offer for this purpose. Any pending statement credits and any associated dollar values represent Offer fulfillment rebates in process, and not participating Advertiser funds or balances maintained or held by a Partner. By processing statement credits to the Partner cardholder for fulfillment of Offers, Partners are not: (i) holding funds or other value for the participating Advertiser for distribution to the Partner cardholder; or (ii) issuing or maintaining any type of financial obligation or deposit or other asset account for the participating Advertiser.


Fees


Fee.

For each Offer redeemed by a Consumer, Advertiser shall pay to Knotis the commission set forth in the applicable Insertion Order and shall also reimburse Knotis for the discount credited to the Consumer’s payment card account or loyalty currency balance as a result of Consumer’s redemption of such Offer (the “Fee”). Advertiser shall pay the Fee within 3 days of receipt of invoice as set forth below.

Payments.

Knotis will use commercially reasonable efforts to provide to Advertiser via email an invoice for all activity since the previous invoice with the number of Offer redemptions and associated Fee and other charges. All amounts not paid within three days (3) days of receipt of invoice shall accrue interest at a rate of one and one half percent (1.5%) per month or the maximum rate permitted by law, whichever is higher, from the due date until paid in full. All fees under this Agreement are quoted in, and payable in, United States dollars. Except as expressly provided in this Agreement, all payments made by Advertiser to Knotis hereunder are non-refundable.

Method of Payment.

All Advertiser payments shall be due upon receipt of invoice and payable by credit card or electronic debit from Advertiser’s bank account via the Automated Clearing House network (“ACH”). Payments must be setup prior to the launch of the campaign.

Taxes.

Advertiser shall pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for the Campaign, the Services or any other product or service provided in connection with this Agreement, excluding only taxes based solely on Knotis’s assets and net income. If Knotis has the legal obligation to pay or collect taxes for which Advertiser is responsible under this Section 2(d), the appropriate amount shall be invoiced to and paid by Advertiser.


Term and Termination.


Term of this Agreement.

This Agreement shall commence on the Effective Date. The Agreement shall remain in effect according to the Insertion Order. If there is no Insertion Order then the default period is month-to-month (unless the merchant has elected to participate in one of Knotis’ print products). Participation in Knotis’ print product grants Knotis a one (1) year (the “Initial Term”), and on each anniversary of the Effective Date (the “Renewal Date”) it shall auto-renew for successive one-year terms (each a “Renewal Term”) unless one Party notifies the other of its intent not to renew a minimum of 60 days prior to the Renewal Date. In the event one Party terminates the Agreement pursuant to the provisions, the Agreement shall expire on the Renewal Date or 60 days after the last Campaign ends, whichever is later. The consideration of being included in a Knotis map or pass, grants Knotis the 1-year term.

Termination.

Termination For Material Breach and Bankruptcy. Either party may terminate this Agreement upon written notice to the other party (a) if the other party commits a material breach of this Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of the same; (ii) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (iii) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (iv) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (v) if a receiver is appointed for the other party or its business.

Termination For Convenience. Either party may terminate this Agreement without cause with sixty (60) days’ prior written notice to the other party.

Suspension of Campaigns.

Notwithstanding the foregoing, if Advertiser’s account is overdue in any respect (except with respect to charges then under reasonable and good faith dispute in writing by Advertiser to Knotis), in addition to any of its other rights or remedies, Knotis reserves the right to suspend any and all Campaigns then in effect, without liability to Knotis, until such amounts are paid in full.

Effect of Termination.

Campaigns; Fees. Notwithstanding any expiration or termination of this Agreement, Advertiser acknowledges and agrees that (i) at Knotis’s option the Campaign shall continue until the Requested End Date of the Campaign; (i) Advertiser shall continue to honor all obligations to Consumers and Knotis set forth in this Agreement with respect to the Campaign until the actual end date of the Campaign; and (iii) Knotis shall be entitled to full payment for all Fees for all Offers redeemed whether accruing prior to or after any expiration or earlier termination of this Agreement.

Additional Obligations. Upon the effective date of expiration or earlier termination (i) Knotis shall cease providing the Services hereunder and (ii) Advertiser shall pay to Knotis any and all Fees due or owing as of the effective date of such expiration or termination. Termination of this Agreement shall not relieve Advertiser of any liability or obligation which accrued hereunder or otherwise relating to the period prior to the effective date of such termination nor preclude Knotis from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.

Survival.

The parties acknowledge and agree Sections 2 (Fee), 3(a) (Term of this Agreement), 3(d) (Effect of Termination), 5 (Confidential Information), 6 (Proprietary Rights), 7 (Disclaimers; Limitations on Liability), 8 (Indemnification), 9 (Miscellaneous) and this Section 3(e) (Survival) shall survive the expiration or termination of this Agreement.


Representations and Warranties.


Each Party represents and warrants to the other that: (a) it is a corporation or other entity duly organized and validly existing and in good standing under the laws of its jurisdiction of formation and/or place of principal business; (b) the performance of its obligations hereunder has been duly authorized by all necessary actions; and (c) neither the execution and delivery of this Agreement nor the performance of any of its obligations hereunder, nor the consummation of any of the transactions contemplated hereby, will violate the NACHA Operating Rules or any law, regulation or agreement to which it is a party. Knotis additionally represents and warrants that it’s partners are PCI DSS, SOC-1 (formerly known as SAS 70 and SSAE 16) and SOC-2 compliant.


Confidential Information.


Definition of Confidential Information.

As used herein, the term “Confidential Information” means any and all data or information provided by one party to the other party in connection with this Agreement to the extent that such data or information: (a) is marked as confidential or proprietary, (b) is otherwise identified in writing as confidential or proprietary, or (c) should reasonably be understood to be confidential in nature. Confidential Information includes, without limitation, the terms and conditions of this Agreement, all information relating to Knotis’s technical, marketing, product and business affairs, both current and future, including without limitation products and services and the pricing for the same and any royalty or fee arrangements, customers, prospective customers, suppliers or employees, business methods, procedures and techniques, technology, marketing information or plans, information received from or with respect to any Partner or other Knotis vendor or supplier and all other proprietary and trade secret information, whether oral, graphic, written, electronic or in machine-readable form.

Obligations.

Each party covenants and agrees that it shall hold (and shall cause its employees, agents, subcontractors and affiliates to hold pursuant to written agreements at least as restrictive as this Agreement or pursuant to fiduciary or other duties) confidential all Confidential Information of the disclosing party and shall not use or disclose such Confidential Information, except as expressly permitted in this Agreement, without the prior written consent of the disclosing party. Any duplication, use, disclosure, or other act or omission by any person or entity that obtains access to or possession of Confidential Information through the receiving party that would be a breach of this Agreement if committed (or, as applicable, omitted) by the receiving party shall be a breach of this Agreement by the receiving party. With respect to any personally identifiable information or sensitive information received, accessed, transmitted or processed by Advertiser, Advertiser shall at all times, be compliant with all data security and data privacy laws applicable thereto, including without limitation, the Gramm-Leach-Bliley Act. With respect to any Confidential Information received from or regarding any Partner, Advertiser shall only use and disclose such Confidential Information to the extent necessary to audit the efficacy of the Campaign.

Exclusions.

Confidential Information does not include information which the receiving party can show through written documentation (i) was known to the receiving party or in the public domain before disclosure by the disclosing party, (ii) becomes part of the public domain after disclosure by a publication or other means except by a breach of this Agreement by the receiving party, (iii) was received from a third party under no duty or obligation of confidentiality to the disclosing party, or (iv) was independently developed by the receiving party without reference to Confidential Information. Upon expiration or termination of this Agreement, all Confidential Information will be promptly returned to the disclosing party or, upon the consent of the disclosing party, destroyed and certified as destroyed by the receiving party.


Proprietary Rights.


Reservation of Rights.

Knotis and its Partners and licensors reserve all rights, title and interests in and to the Services, Campaign (excluding any Advertiser Content) and any other technology, copyrightable material or other intellectual property or other proprietary information, data or materials provided to Advertiser in connection with this Agreement (collectively, the “Knotis Intellectual Property”). Advertiser acknowledges that no rights are granted to Advertiser hereunder other than as expressly set forth herein. Knotis acknowledges and agrees that Advertiser retains all rights, title and interests in and to the Advertiser Content supplied to Knotis hereunder.

Developed Data.

Notwithstanding anything to the contrary in this Agreement, subject to Sections 1 and 5, Knotis may, in perpetuity, use any data, redemption information, reports, results, calculations and other output and information generated from the Services and any Campaign for comparative, research and/or analytical purposes as part of the normal course of services it provides to clients, advertisers and prospective clients, including Advertiser; provided, that no such data is shared with any third party that is identifiable to a specific Consumer or Advertiser. The parties acknowledge and agree that Knotis shall have no obligation to account to Advertiser for such use or to pay any consideration to Advertiser for such use.

Suggestions and Feedback.

Knotis shall have, and Advertiser hereby grants, a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual right and license to use, modify and/or incorporate into the Services, any future Campaigns, and any other Knotis Intellectual Property any ideas, suggestions, enhancements, recommendations or other feedback provided by Advertiser.


Disclaimers; Limitations on Liability.


Disclaimer of Warranties.

THE CAMPAIGN, SERVICES AND ALL OTHER KNOTIS INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY KNOTIS, ITS LICENSORS, PARTNERS OR SERVICE PROVIDERS, EITHER EXPRESS OR IMPLIED WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADVERTISER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE FEES PAYABLE HEREUNDER. Notwithstanding anything herein to the contrary, makes no warranty with respect to the accuracy of any data provided to it by a Partner and shall have no liability to Advertiser with respect thereto.

Disclaimer of Consequential Damages.

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Limitation on Damages.

IN NO EVENT SHALL KNOTIS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY ADVERTISER TO KNOTIS IN THE SIX MONTH PERIOD PRECEDING THE FIRST INCIDENT TO GIVE RISE TO A CLAIM UNDER THIS AGREEMENT.

Acknowledgements re: Transaction Data.

Advertiser hereby acknowledges and agrees as follows:

Knotis and its Partners may be unable to track and provide every transaction made with an enrolled card, including PIN-based purchases, purchases initiated through identification technology that substitutes for a PIN, payments of existing card balances, balance transfers, cash advances, ATM transactions, convenience checks, payments made for pre-paid and re-loadable cards such as certain gift cards, Visa Buxx and similar cards, payments made for payment instruments that can readily be converted to cash (for example, travelers cheques, money orders, wire transfers, and similar products or services).


Indemnification.


Indemnification by Knotis.

Knotis shall defend Advertiser and its officers, directors, employees, agents, successors and assigns from and against any third-party claim, action, suit or proceeding brought by a third party (“Third-Party Claim”) against Advertiser alleging that a Campaign and the Services as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, copyright, trademark or trade secret rights of a third party (each, an “Infringement Claim”). Knotis shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by Knotis in any settlements arising out of such Infringement Claim; provided, that the alleged infringement does not arise as a result of (i) the Advertiser Content or any other information, data or materials not furnished by Knotis; or (ii) any act or omission of Advertiser. THIS SECTION 8(a) STATES THE ENTIRE OBLIGATION AND LIABILITY OF KNOTIS, AND THE EXCLUSIVE REMEDY OF ADVERTISER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

Indemnification by Advertiser.

Advertiser shall defend, indemnify and hold Knotis and its Partners, Third Party Vendors, Financial Institutions, affiliates, officers, directors, employees, agents, successors and assigns harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any Third-Party Claim made or brought against Knotis arising out of or related to (i) the Advertiser Content, (ii) Advertiser’s failure to redeem any Offers or otherwise participate in the Campaign or perform any obligation set forth in this Agreement, (iii) the use by Knotis of any intellectual property provided by Advertiser to Knotis (provided that such use by Knotis is consistent with the terms of this Agreement), and (iv) with respect to any acts or omissions of Advertiser, including with respect to a breach of this Agreement, that cause Knotis to suffer damages under or pursuant to any contract or agreement with any Partner.

Indemnification Procedure.

The party seeking indemnification or contribution under this Section 8 (the “Indemnitee”) shall promptly give to the other party (the “Indemnitor”) written notice of the Third-Party Claim for which Indemnitee claims to be entitled to indemnification under this Agreement. The Indemnitor or its insurer shall retain sole control of the conduct of the defense of the Third-Party Claim, including, without limitation, the selection and management of counsel. The Indemnitor may not, without the Indemnitee's prior written consent, settle, compromise or consent to the entry of any judgment in any such Third-Party Claim, unless such settlement, compromise or consent: (i) includes an unconditional release of the relevant Indemnified Parties from all liability arising out of such Third-Party Claim; and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, any Indemnitor. The Indemnitee may, upon written notice to the Indemnitor, and at the Indemnitee’s sole cost and expense, select its own counsel to participate in and be present for the defense of any such Third-Party Claim.


Insurance.


Throughout the Term of this Agreement Advertiser shall maintain at all times at its own cost and expense:

  • Commercial General Liability Insurance of not less than one million dollars ($1,000,000.00) per occurrence and not less than two million dollars ($2,000,000.00) in the aggregate. Knotis, Inc. shall be named as an insured on this Commercial General Liability Insurance policy.
  • Umbrella Coverage, covering its premises, including bodily injury, property damage, broad form contractual liability and independent contractors, with primary limits of not less than ten million dollars ($10,000,000.00).
  • Workers’ Compensation Insurance as mandated or allowed by the state exercising jurisdiction over the Venders employee’s including at least one million dollars ($1,000,000.00) of Employer Liability coverage.
  • Property insurance in an amount adequate to cover the cost of replacement of all equipment, improvements, and betterments in Advertiser’s care, custody and control, if any, which is owned by Knotis, Inc. and providing the Special Perils Endorsement in the event of loss or damage.
  • Professional Liability (Errors and Omissions) Insurance in the amount of at least five million dollars ($5,000,000.00), including Enterprise Privacy (Cyber Risk-Loss of Information First and Third Party Liability) Coverage.

Contingent Business Interruption and Extra Expense insurance in the amount of actual losses sustained.

Advertiser’s insurer shall provide Additional Insured status to Knotis, Inc., and its subsidiaries on all Liability policies and Loss Payee status on all Property policies.

All policies of such insurance shall be written by a carrier or carriers rated “A” or above by A.M. Best & Company, shall contain a clause requiring the carrier to provide Knotis Affinity Marketing, Inc. at least thirty (30) days’ prior written notice of any material change or cancellation of coverage for any reason. Simultaneously with Advertiser’s execution of this Agreement, and thereafter upon written request, Advertiser shall deliver to Knotis, Inc. et al original ACORD Certificates of Insurance evidencing the coverage required by this section.


Miscellaneous.


No Waiver; Cumulative Remedies.

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

References; Press Release.

Advertiser agrees to allow Knotis to use Advertiser’s name, service mark, and logo (in such form as provided by Advertiser to Knotis for such purpose) solely as a reference to Advertiser as a current customer or user of the Services in Knotis’s marketing materials.

Consents and Approvals.

Except as set forth expressly herein, whenever a consent or approval of the other party is required, such consent and approval shall not be unreasonably withheld, conditioned or delayed.

Disputes.

Subject to the terms of this Agreement, the parties shall follow the dispute resolution process set forth in this Section 9(d) in connection with all disputes, controversies or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory (other than equitable relief which either party is entitled to seek for breaches of confidentiality) relating to disputes arising between the parties with respect to performance or non-performance by the parties hereunder (collectively, “Disputes”). The parties will use all reasonable efforts to settle all Disputes through good faith negotiations. For any litigation arising out of or relating to this Agreement, regardless of the form of action or the party that initiates it, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of and venue in the United States District Court for the District of Washington or, if that court does not have jurisdiction, in the Circuit Court of Seattle, King County, State of Washington. The parties expressly and unconditionally waive the jurisdiction of any foreign court or tribunal and additionally waive any trial by jury in any action. The parties irrevocably and unconditionally waive any objection to the laying of venue of any proceeding arising out of or relating to this Agreement in such courts. The parties further consent to the jurisdiction of any state or federal court with subject matter jurisdiction located within a district that encompasses assets of a party against whom a judgment (or award) has been rendered for the sole purpose of the enforcement of the judgment (or award) against the assets of such party. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such party is entitled.

Governing Law.

This Agreement is governed by the laws of the State of Washington, excluding its conflict of laws provisions. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such party is entitled.

Notices.

Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if (i) emailed or delivered personally, (ii) mailed by certified or registered mail return receipt requested, postage prepaid, or (iii) sent by overnight guaranteed delivery service, and addressed to the party’s proper address as set forth on the cover page or to such other address or addressee as either party may from time to time designate to the other by written notice. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient.

Severability.

In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.

Force Majeure.

If either party is unable to perform any of its obligations under this Agreement (except for Advertiser’s payment obligations) due to, including without limitation, a natural disaster, actions or decrees of governmental bodies, telecommunications carriers, terrorist activities or other events beyond such party’s reasonable control, such party’s obligations under this Agreement shall be suspended during the duration of any such event.

Assignment.

This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Notwithstanding the preceding sentence, neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably delayed, conditioned or withheld; provided, that (a) either party may assign this Agreement without the consent of the other party to an Affiliate, in conjunction with a change in control or a sale of all or substantially all of such party’s assets; and (b) Knotis may subcontract its obligations hereunder to certain Partners, third-party service providers or subcontractors, provided that Knotis will remain responsible for the obligations performed by any such service providers and subcontractors to the same extent as if such obligations were performed by Knotis hereunder.

Independent Contractors.

Each party shall remain an independent contractor and nothing in this Agreement shall be deemed to constitute the parties as partners, agents or joint ventures. Further, neither party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other.

Equitable Remedies.

Each Party acknowledges that a breach of its obligations under Section 5 and/or Section 6 of this Agreement could cause irreparable harm to the other party and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, each party shall be entitled to seek relief by way of injunction or specific performance.

Counterparts.

This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, affixed as indicated thereon by electronic means or transmitted by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

No Third Party Beneficiaries.

This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.

Entire Agreement; Headings.

This Agreement embodies the entire agreement between the parties, supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written. These Terms and Conditions are subject to change upon prior written notice by Knotis to Advertiser, and by continuing to utilize the Services following receipt of any changes, Advertiser agrees to the Terms and Conditions as revised. Except as otherwise set forth in this Section 9(n), this Agreement may be amended only by a written instrument duly signed by the Parties. The headings and subheadings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.


Exhibit A-1


American Express Data Security Standards

Data Security. You represent and warrant that You have, and will continue to have for so long as You receive and retain, as applicable, any information relating to an identified or identifiable individual (“PII”) or Loyalty Data associated with American Express Payment Cards (“Protected Data”) a comprehensive information security program in compliance with applicable laws to protect against any destruction, loss, alteration, or disclosure of, or unauthorized access to, any Protected Data and will comply with the data security standards of the payment card industry (PCI DSS) (including, but not limited to, obtaining from a Qualified Security Assessor an annual Report on Compliance (as the foregoing capitalized terms are defined in PCI DSS) that certifies Your compliance with PCI DSS). Such information security program will include commercially reasonable administrative, technical and physical safeguards (a) to maintain the security and confidentiality of such Protected Data, (b) to protect against any anticipated threats or hazards to the security or integrity of such Protected Data and (c) to protect against unauthorized access to or use of such Protected Data, which could result in substantial harm or inconvenience to the owner of such data. You agree that it will promptly notify the Program upon discovering that there has been an actual or suspected material breach in its security safeguards required by this Section 1.3 or if the security of Protected Data has been or may be compromised for any reason. You will comply with (i) all applicable laws, including, without limitation, all applicable data protection, privacy, encryption and security laws and regulations; Directive 95/46/EC; the Gramm-Leach-Bliley Act; laws regulating unsolicited email communications; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain personally identifiable information; and all other similar international, federal, state, provincial and local requirements; (ii) the PCI Standard (if and to the extent applicable) and all other applicable industry standards and relevant policies of Financial Institutions, including, without limitation, the United States American Express Online Privacy Statement, available at https://www.americanexpress.com/us/content/legal-disclosures/online-privacy-statement.html, and the following AXP policies (and any updates to such policies or additional policies): Privacy of Consumer Financial Information/Regulation P Policy (effective May 22, 2012), AXP’s Customer Privacy, Information Sharing and Data Protection Policy (effective July 31, 2012); and (iii) all applicable provisions of written information security requirements applicable to the performance of its obligations under this Agreement. You will make its independent assessment as to which laws, rules and regulations are applicable to it in the performance of its obligations hereunder.

Specific Restrictions on Loyalty Data. In the event You receive any Loyalty Data under this Agreement from transactions associated with American Express Payment Cards, You will use such Loyalty Data solely for the purposes contemplated by this Agreement and solely in accordance with applicable laws. Further,

You will not sell, lease, license, sublicense, transfer or otherwise dispose of the Loyalty Data (or any portion thereof) to any third party or incorporate Loyalty Data (or any portion thereof) into any services offered by such party to any third party;

You will not discover, reverse engineer, decompile or decode Loyalty Data in order to, among other things, determine card type.

You confirm that the Program may collect, use, disclose, and share its data in order to perform its Services hereunder.

You will comply with the terms of its privacy policy.

You will permit the Program and the Financial Institutions and any of its or their inspectors, regulators and other representatives access: to any facility in which You perform this Agreement, to Your employees and to all of its systems, controls, policies and procedures, and its data and records for the purpose of examining Your performance of this Agreement, and conformance with the terms hereof, and will cooperate with any request by the Program and the Financial Institutions in connection with its assessment and evaluation of the manner in which You safeguard Loyalty Data.