Last Updated February 25, 2021
Completion and submission of an offer via the online offer setup portal that the Client has access to upon registering an account (“Worksheet”) signifies agreement with these Terms for Cashback Offers, Instantly Redeemable Coupons, and Digital Rebates (“Terms”) and these Terms together with the Worksheet (“Agreement”) shall govern the provision of certain promotional services between Digitus Solutions LLC (“Digitus”), a North Carolina limited liability company and an Inmar Intelligence company (“Inmar”), and the client (“Client”) identified on an applicable Worksheet.
Services. Client will complete and submit to Inmar a Worksheet for promotional services and offers (“Services”) in support of either (i) Client’s products or services or (ii) to the extent Client is acting as an agent for a third-party brand owner (“Brand Owner”), in support of Brand Owner’s products or services.
Fees. Client agrees to pay Inmar the fees as indicated herein for the particular Services. Unless otherwise indicated herein, Client agrees to pay Inmar invoices within thirty (30) days of the Inmar invoice date. 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 or the maximum rate permitted by law. 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.
Term and Termination.
The term shall commence on the point of sale (“POS”) Start Date set forth on the Worksheet, and shall end on the POS End Date (“Term”).
This Agreement may be terminated by a party for cause immediately by written notice upon the occurrence of any of the following events: (a) if the other party commits a material breach of its obligations and fails to cure that breach within thirty (30) days after receiving written notice of the breach; (b) if Client fails to make any payment due to Inmar and such nonpayment continues for a period of ten (10) days after receipt of written notice from Inmar; or (c) if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding.
Termination will not affect any payment or performance obligation accruing or arising prior to such termination. In the event of termination, no refund shall be available or due with respect to amounts properly billed to and paid by Client prior to such termination.
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. 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 or other wrongful act of the receiving party; (c) has been rightfully received from a third party without breach; (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 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).
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. Except for the license grants set forth herein, nothing shall 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 fulfill its obligations herein, including all enhancements and improvements thereto, are and shall remain the exclusive property of Inmar.
Data Usage. Data collected or generated by Inmar pursuant to the Agreement and held by Inmar in a form that is identifiable to Client or Brand Owner 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, 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 to any third party without the prior written consent of Inmar.
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.
Client Materials License. Client, either for itself or on behalf of Brand Owner, hereby grants to Inmar a non-exclusive, royalty-free license to reproduce, display, incorporate into other materials, distribute (and, as applicable, digitally transmit) and otherwise use all client materials, including, without limitation, any logos or other trademarks provided by Client (“Client Materials”), for purposes of accomplishing the Services. Client warrants that it has all necessary rights in the Client 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.
Any notice required or permitted herein 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 Client contact provided to Inmar during the registration process, with a copy to Client’s General Counsel at the same address. Additionally, as to Inmar, a copy shall be sent to: Digitus Solutions LLC, 635 Vine Street, Winston-Salem, North Carolina 27101, Attn: General Counsel.
Representations and Warranties. Each party hereby represents and warrants that: (i) it is duly organized and validly existing under applicable law; (ii) it has the requisite power and authority to enter into this Agreement, and to consummate the transactions contemplated by the Agreement in accordance with its terms. In particular, if Client represents a Brand Owner, Client represents and warrants that it is authorized to act on behalf of Brand Owner with respect to all matters in connection with the Agreement, and Client shall be liable for any action of Brand Owner which would constitute a breach of the Agreement.
Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, DIGITUS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES PROVIDED BY IT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, DATA ACCURACY OR SYSTEM INTEGRATION, ANY IMPLIED WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND ANY WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES PROVIDED BY DIGITUS 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, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES, LOSSES, OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), ASSOCIATED WITH OR ARISING FROM LOST TIME, LOST DATA, LOST SAVINGS, PROPERTY DAMAGE, LOST PROFITS, OR LOSS OF GOODWILL, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, OR COSTS.
Unless otherwise limited herein, the liability of a party, regardless of the form of claim or action, will not exceed the fees actually paid by Client or payable to Inmar for Services provided by Inmar under this Agreement.
Indemnification.
Mutual 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 Services under 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.
Inmar Indemnification. Inmar shall defend, indemnify, and hold harmless Client and its officers, directors, and employees from and against any and all Expenses that are made against or incurred by Client in connection with third-party claims of infringement of copyright, trademark, or patent based solely and exclusively on Client’s use of products as provided or Services as delivered by Inmar, to the extent that such products or Services are used by Client in accordance with the terms and conditions herein and to the extent that such products or Services are not modified by Client or any third party. Inmar shall not have any liability to Client for any infringement or other violation of a third party right that is based in any way upon (i) the use of the product or Services in combination with other components or software not furnished by Inmar; (ii) the use of the product or Services after Client has received notice of such infringement or other violation, and Inmar has offered a replacement, modification or refund therefor, or (iii) compliance with an industry standard or communication protocol.
Client Indemnification. 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 Expenses in connection with any third-party claim arising from or related to (a) Client’s failure to ensure each Client offer is lawful and compliant with applicable laws, rules and regulations, (b) Inmar’s publication, copying, display or distribution of any Client Materials, including Expenses related to infringement of any third party’s copyright, trademark or other intellectual property right, (c) any products or services offered or sold by Client or Brand Owner, or (d) any errors or omissions with respect to any Client Materials or any content approved by Client.
Indemnification Condition. The indemnification obligations are 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.
Governing Law and Jurisdiction. This Agreement shall be deemed to have been executed in Winston-Salem, Forsyth County, North Carolina and 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.
Entire Agreement. The Worksheet, together with these Terms, sets forth the entire understanding and Agreement of the parties with respect to the subject matter hereof.
Following submission, no part of a Worksheet or these Terms may be modified except by mutual agreement of the parties in writing.
Force Majeure. A party shall not be considered in default or liable for fees and/or Expenses, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of that party. Each party will promptly notify the other party of the occurrence of any Force Majeure that may affect its performance.
Failure of either party to enforce a specific provision of this Agreement shall not constitute waiver of such provision or of any other provision of the Agreement. No waiver of any of the provisions of the Agreement shall be deemed to be or shall constitute a waiver of any other provision of the Agreement, 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 the Agreement shall be binding on the parties hereto unless it is executed in writing by the party making the waiver.
If any term 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 unless enforcing the balance would deprive either party of a fundamental benefit of its bargain.
Relationship of the parties. Inmar shall act as an independent contractor in the performance of the Services, and nothing herein shall be construed to create a partnership or joint venture between Inmar and Client.
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.
Regulated Products and Alcoholic/Adult Beverages
Client shall be solely responsible for compliance with all federal, state and local law, rules or industry regulations regarding any regulated products including but not limited to alcoholic or adult beverages.
For adult beverages, Client warrants that adult beverage being promoted is able to be legally sold to adult consumers in the U.S. Client further warrants the product’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. Any and all statements, claims and information appearing on the product labeling and in any Client-owned, Brand Owner-owned, or Client-approved marketing materials regarding the adult beverage product will be truthful and accurate.
If the content will be used in connection with any sweepstakes, contest or other promotion to consumers conducted by or for Client (collectively “Regulated Product or Adult Beverage Promotions”), Client will be solely responsible for ensuring that such Regulated Product or Adult Beverage Promotions will comply with all applicable state and federal laws and regulations, including specifically, but not limited to, any rules or written policies established by alcoholic beverage or other regulatory agencies with jurisdiction over the Regulated Product or Adult Beverage Promotions.
The following Terms apply if the particular Services are being provided under a Worksheet at the Direction of Client.
SECTION 1 - TERMS FOR CONSUMER OFFERS THAT ARE LOADED TO RETAILER LOYALTY CARDS - INSTANTLY REDEEMABLE COUPON OFFERS AND CASHBACK OFFERS
To the extent any Worksheet includes the selection by Client of a promotional offer that will be made available to consumers through one or more retailers and that when selected by a consumer (“Clip”) the result is the promotional offer being associated with a consumer’s loyalty account at a retailer (“LTC Offers”), this Section will apply. A LTC Offer that is redeemed by the consumer during the same transaction in which the promotional item(s) is(are) purchased is an “Instantly Redeemable Coupon Offer” or “IRC Offer.” A LTC Offer that requires subsequent validation and processing by Inmar following purchase (“Redemption”), and that will be credited to a consumer’s retailer loyalty account and redeemable by the consumer at some later time through a third-party payment provider such as PayPal, is a “Cashback Offer.”
Fees
Fees from Inmar to Client for LTC Offers are incurred whenever a consumer Clips the Offer. For Cashback Offers, additional fees are incurred at Redemption. Additional fees may be incurred by Client under other agreements with Inmar or its affiliates or other third parties including but not limited to fees for settlement.
IRC Offers
$0.08 per Clip
Cashback Offers
$0.03 per Clip
$0.70 per Redemption
Cashback Offer value (varies)
By way of example, for a “$2 off” Cashback Offer, the Client fees where such Cashback Offer is clipped but not redeemed would be $0.03. The Client fees where the Cashback Offer is clipped and redeemed would be $2.73 ($0.03 per Clip + $0.70 per Redemption + $2.00 per offer value).
Services. Inmar shall provide Client with the following LTC Offer services on a timely basis if Client completes all required fields in the Worksheet:
Inmar will work with Client to set up each new LTC Offer based on the information provided by Client in the Worksheet and will assist in resolving any discrepancies between the participating retailer(s) and Client.
Inmar will notify Client when a new LTC Offer is approved and implemented at a specified retailer.
Inmar will manage the Inmar participating network of retailers (“Inmar Retailer Network”) and provide Client with any retail network additions, deletions or changes.
Inmar will make available to the Inmar Retailer Network the LTC Offer content for display on retailers’ selection page for loading to the shopper loyalty card of such retailers.
Inmar will provide Client with reporting data pertaining to Client’s LTC Offer details to the extent permitted by the retailer.
For IRC Offers only, and at retailer point of sale where and when an IRC Offer is being redeemed, Inmar will coordinate with the retailer to ensure that the amount of the IRC Offer is credited to the consumer during the same transaction.
For Cashback Offers only, and at point of sale where a Cashback Offer is being redeemed, Inmar will coordinate with the retailer to ensure the reward for the Cashback Offer is associated with the consumer’s retailer loyalty account.
For Cashback Offers only, Inmar will coordinate with designated third-party payment providers such as PayPal to ensure that any amounts owed to the consumer are processed and delivered to the consumer in accordance with the terms of the Cashback Offer.
Inmar reserves the right to reject any request from a Client to operate a LTC Offer from Client for any reason and at any time prior to publication of such LTC. In the event of such rejection, Inmar shall promptly notify Client of such action.
Obligations of Client. Client agrees to perform the following functions on a timely basis if Client completes all required fields in the Worksheet:
Client will provide LTC Offers to Inmar for placement within the Inmar Retailer Network.
Client will adhere to all offer rules and regulations outlined by retailer and must provide Inmar any terms and conditions for the LTC Offer along with any retail participant or consumer limitations or geographic constraints.
Client, if different from the manufacturer, will adhere to all offer rules and regulations outlined by manufacturer and retailer and must provide Inmar any terms and conditions as provided by the manufacturer along with any retail participant or consumer limitations or geographic constraints.
Client, if different from the manufacturer, will notify the manufacturer of liability for offers, which includes distribution, face, and handling charges.
Client 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 the retailer at any time. In the event of any breach of a retailer’s guidelines, Client must correct and adhere to such guidelines or refrain from the use of such retailer information.
Client will submit offer images and text to Inmar for offers included in each Worksheet at least three (3) weeks in advance of the desired publishing date of each LTC Offer. Client represents and warrants that, once Client 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.
Client is solely responsible for providing accurate information during the LTC Offer setup process including, for IRC Offers, providing updated Manufacturer Offer ID in order to facilitate settlement with the retailer.
Client is at all times solely responsible for ensuring that the offer parameters for every LTC Offer are lawful and compliant with all applicable laws, rules, and regulations. Without limiting the foregoing, Client agrees that, to the extent required by applicable law, Client shall ensure that notices of LTC Offers (including applicable offer parameters and offer content) are timely provided to any required governmental authorities, and shall otherwise procure such consents, licenses or approvals necessary to publish and process each LTC Offer.
Client will submit any modifications to any existing Worksheet to Inmar, in writing. No verbal modifications or deletions will be accepted by Inmar.
SECTION 2 - INMAR DIGITAL REBATE OFFER TERMS
To the extent any Worksheet includes the selection by Client of a Digital Rebate Offer (“Rebate Offer”), this Section will apply.
Fees.
$1.25 per Rebate Offer Redemption
Rebate Offer Offer value (e.g. for a “$2 off” Rebate Offer that is redeemed, the fees would be $3.25 total per Redemption)
Digital Rebate Services. Inmar shall provide Client with the following digital rebate services on a timely basis if Client completes all required fields in the Worksheet:
Receive requests from Client via a Worksheet containing the detailed parameters of each digital rebate offer that Client wishes Inmar to process (each, a "Rebate Offer"), including all information necessary for Inmar to validate redemption requests (such information, collectively, the "Offer Parameters"), such as the expected distribution channels for the Rebate Offer, the dates when the Rebate Offer is valid, the geographic locations where the Rebate Offer should be offered, the Inmar Platforms through which the Rebate Offer should be published by Inmar, any redemption limits for the Rebate Offer, the product(s) covered by the Rebate Offer, other terms and restrictions applicable to the Rebate Offer (e.g., age requirements for the submitter), and all other information as specified by Client necessary for validation of Submissions by Inmar.
Publish Rebate Offers within Inmar's available digital platforms (e.g., Dealamina™, SWIZL™ and/or Gratafy® platforms) text/SMS, and/or other online or mobile platforms (each, an "Inmar Platform" and collectively the "Inmar Platforms"). Inmar may suspend publication of, or remove from publication, any Rebate Offer at any time for good cause, including, without limitation, if (i) the Rebate Offer contains an error, or (ii) continued publication of the Rebate Offer could result in (a) violation of applicable law, (b) infringement of a third party's intellectual property or other proprietary right, (c) improper function of the Rebate Offer, (d) material adverse impact to Inmar's brands or reputation, (e) problems with respect to the redemption of the Rebate Offer, including, without limitation, a retailer system or Client agent technical issue or potentially fraudulent redemption issue, (f) the Rebate Offer exceeding the redemption limits provided in the Offer Parameters by Client, or (g) exposure of Inmar or its agents to liability. In the event of such suspension or removal, Inmar shall promptly notify Client of such action.
Receive rebate redemption requests from submitters (each a "Submission") as specified by the applicable Offer Parameters for each Rebate Offer.
Process each Submission as instructed by Client during Rebate Offer setup.
Audit each Submission for compliance with the Offer Parameters provided by Client for the Rebate Offer. Inmar will use commercially reasonable efforts to identify evidence of fraud within each Submission.
Prepare and release rebate rewards payable to submitters of compliant Submissions in accordance with the Offer Parameters.
Provide notice to submitters of invalid Submissions, as specified in the Offer Parameters or as otherwise instructed by Client.
Provide Inmar's standard marketing and financial reports to Client. A list of standard reports can be found on the Data Portal as defined below. Any additional reports requested by Client that require additional programming and/or manual labor will be subject to additional fees.
Provide customer service to Client and to submitters, as applicable.
Inmar reserves the right to reject any request from a Client to operate a Rebate Offer from Client for any reason and at any time prior to publication of such Rebate Offer. In the event of such rejection, Inmar shall promptly notify Client of such action.
Obligations of Client. Client agrees as follows:
Rebate Fees and Security Deposit
Client agrees to pay Inmar for all rebate amounts paid, fees, charges, or other amounts due from Client under this Worksheet (“Client Obligations”) by the due date referenced on the invoice to Client.
Inmar shall provide Client with weekly invoices for Client Obligations.
Prior to the publication of any Rebate Offer, Client shall provide Inmar with a security deposit of an amount not less than the maximum anticipated Rebate Offer redemption volume for thirty (30) days, or as otherwise agreed upon by the Parties (“Security Deposit”). Further, if at any time the Security Deposit balance is insufficient to cover Client Obligations that are due, Client agrees, upon request of Inmar, to provide Inmar with additional Security Deposit funds within five (5) business days of the receipt of a request from Inmar.
The Security Deposit shall be returned to Client, at the direction of the Client, upon either: (a) completion of all Rebate Offer redemptions and payment of all Client Obligations due, or (b) one hundred and eighty (180) days following the termination or expiration of this Agreement and payment of all Client Obligations due.
Client and Inmar agree that upon written confirmation of the parties, the Security Deposit may be applied against the final invoice for any outstanding Client Obligations, with any net remainder returned to the Client.
Client shall complete the Digital Rebate Services Offer Details section of a Worksheet providing Inmar with detailed Offer Parameters for each Rebate Offer. Client will specify all information necessary for Inmar to validate the compliance of Submissions with the terms of the Rebate Offer. Client shall fully fund all Rebate Offers prior to release of Rebate rewards to submitters.
Client acknowledges that it is solely responsible for determining and approving all product photos, logos, advertising copy, terms and conditions, and other textual and graphic content displayed within each publication of a Rebate Offer (collectively, the "Offer Content"). Client will review and approve the applicable Offer Content before a Rebate Offer is published.
Client is at all times solely responsible for ensuring that the Offer Parameters for every Rebate Offer are lawful and compliant with all applicable laws, rules, and regulations. Without limiting the foregoing, Client agrees that, to the extent required by applicable law, Client shall ensure that notices of Rebate Offers (including applicable Offer Parameters and Offer Content) are timely provided to any required governmental authorities, and shall otherwise procure such consents, licenses or approvals necessary to publish and process each Rebate Offer (including, as applicable, for publication within Inmar Platforms). Client represents and warrants that it has obtained all valid and sufficient permits, licenses, releases, or approvals required in connection with each Rebate Offer in each state where it instructs Inmar to publish and/or distribute such Rebate Offer and to only request that its Rebate Offers be honored where allowed by law.
Client agrees that Inmar or Client may place a Submission into a no-pay status. Inmar and Client will determine final payment decisions in all cases in which Inmar has withheld payment due to (i) suspected misredemption/fraud or (ii) a no pay decision.