Terms & Conditions: Business Partner Program

Table of Contents

Standard Partner Program Terms and Conditions

Revision date: September 2019

1. Relationships and Agreement. These Standard Partner Program Terms and Conditions (these “Terms and Conditions”), together with any associated Insertion Orders, govern the relationship between you (“Partner”) and Blackhawk Issued Content, LLC (“Spafinder”). Each Insertion Order addresses certain other details of your arrangement with Spafinder.

2. Description of Service. Spafinder shall: (i) deliver the marketing support for the specific locations designated in the Insertion Order(s) (the “Property” or “Properties”); and (ii) display on the Spafinder.com website(s) the Property listing(s) (“Property Listing(s)”) for Partner, all as set forth in detail in the applicable Insertion Order. The services to be provided by Spafinder herein are only for the Properties identified in an Insertion Order, and Partner may only redeem Spafinder Gift Certificates and Gift Cards at such Properties. If the Partner has additional locations, Partner must enter into a separate Insertion Order for each such location, unless Spafinder specifically agrees in writing to include such locations in the same Insertion Order. If Partner seeks to redeem Spafinder Gift Certificates or Gift Cards from a location that is not subject to an Insertion Order with Spafinder, Partner agrees that it will owe and be obligated to pay to Spafinder, and Spafinder shall be authorized to immediately invoice Partner for all monthly fees that would have been due from such location(s) from the date of the applicable Insertion Order if such location(s) were Property(ies) subject to the Insertion Order.

3. Standards for Property Listings.

Partner is responsible for ensuring that the information provided
in each Property Listing is true, correct and complete in all respects.
Spafinder is not responsible or liable for any mistakes, errors or omissions in
any Property Listing. Partner shall notify Spafinder of any changes in a
Property Listing as soon as such revised information is available.
Partner shall use its best efforts to make sure that all
reservations agents, customer service agents, and other personnel are familiar
with and knowledgeable of all deals and other specials promoted by Partner at applicable
Properties on the Spafinder websites.
Spafinder reserves the right to reject, remove and/or cancel any
Property Listing that contains or links to content that Spafinder in its sole
discretion deems to be: (i) offensive or otherwise inconsistent with
Spafinder's content standards; (ii) violating law or third-party rights; or
(iii) otherwise objectionable to Spafinder. Spafinder may also cancel any
Property Listing if Partner does not meet the standards set forth in (b) above.
Should Spafinder exercise this right, Partner shall be entitled only to a
refund of the pro-rata portion of amounts paid for the unfulfilled Property
Listing(s), if any, and Spafinder shall have no further liability for any such
cancellation. Partner represents and warrants to Spafinder that the information
contained in each Property Listing does not and will not infringe upon, or be a
misappropriation of any third-party copyright, trademark, patent, trade secret,
or other intellectual property or proprietary right of any third-party, or be libelous or obscene or otherwise violate
any law or right of any third-party. Partner is solely responsible for the
content of its Property Listing(s) and any website linked to from such Property
Listing(s), and shall indemnify, defend and hold harmless Spafinder’s
Indemnitees (defined below) for all Losses (defined below) in connection with
any claims by any third parties relating to any Property Listing or any such
website.
Spafinder has and retains full and exclusive right, title and
ownership interest in and to the Spafinder websites and all content and
graphics contained therein, except for Partner’s content and graphics contained
therein. Partner has and retains full and exclusive right, title and ownership
interest in and to content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder websites. Partner grants to Spafinder (and its
affiliates) a non-exclusive, world-wide, royalty-free license to use, reproduce
and edit any content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder website(s) or other distribution channels as
Spafinder deems appropriate.

4. Gift Cards / Gift Certificates. These Terms and Conditions also include the Gift Card/Gift Certificate Terms and Conditions

5. Payments. Payments due to Spafinder must be made by credit card only and as per the terms of the applicable Insertion Order. The first monthly payment is due upon execution of the applicable Insertion Order. Ongoing installments will be charged monthly thereafter. If Partner’s credit card cannot be accepted for payment at any time and an alternate card is not provided at the time any installment is due, Spafinder may, in its sole discretion, suspend Partner’s Property Listing(s) and make relisting subject to a reinstatement fee. Spafinder will not make payments to any other third-party on behalf of Partner; all payments owed will be paid directly to Partner. Spafinder may offset amounts payable to Partner arising from redemptions against Partner’s payment obligations to Spafinder. If Partner breaches its payment obligations under these Terms and Conditions or any Insertion Order, Partner agrees to pay all costs, fees and expenses, including reasonable attorney's fees that Spafinder incurs as a result of Partner’s breach.

6. Compliance. Partner represents and warrants that: (i) its business is, and will at all times be, operated in full compliance with all licensing and similar requirements to which it is subject; and (ii) its staff is, and will at all times be, in full compliance with all licensing and similar requirements to which it is subject, and properly trained to perform the procedures/services each Property performs.

7. Effective Date, Termination, Default. The Effective Date of any Insertion Order is the date it is signed by Partner. Partner may terminate any Insertion Order at any time and for any reason upon thirty (30) days’ prior written notice to Spafinder. Spafinder may terminate any Insertion Order at any time for any reason or for no reason upon written notice to Partner.

8. Limitations of Liability and Indemnification.

IN NO EVENT WILL SPAFINDER BE RESPONSIBLE FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND
INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA,
REGARDLESS OF WHETHER SPAFINDER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF. MOREOVER, SPAFINDER'S MAXIMUM LIABILITY
HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH
OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY THE PARTNER TO SPAFINDER
UNDER THE APPLICABLE INSERTION ORDER DURING THE PRIOR TWELVE (12) MONTH PERIOD.
THIS PROVISION SHALL SURVIVE THE TERMINATION OF ANY OR ALL INSERTION ORDER(S).
EXCEPT AS OTHERWISE STATED HEREIN, SPAFINDER DISCLAIMS ANY AND
ALL WARRANTIES, AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES
DISPLAYED ON A SPAFINDER WEBSITE, OR THE FUNCTIONALITY, PERFORMANCE, OR
RESPONSE TIMES OF A SPAFINDER WEBSITE. THIS PROVISION SHALL SURVIVE ANY
EXPIRATION OR TERMINATION OF ANY OR ALL INSERTION ORDER(S).
Each Party (the “Indemnifying Party”) shall indemnify, defend
and hold harmless the other Party (the “Indemnified Party”) and the Indemnified
Party's officers, directors, partners, agents, employees, and affiliates
(collectively, “Indemnitees”) from and against any and all losses, claims,
damages, liabilities, judgments, costs and expenses (including reasonable
attorney's fees and disbursements) (“Losses”) arising from or relating to any third-party
claim, demand, allegation, action or threat of action arising from or relating
to the Indemnifying Party’s: (i) actual or alleged breach of its
representations, warranties, or covenants hereunder; (ii) violation of
applicable law or regulation or (iii) fraud, theft, or willful misconduct.
In addition, Partner shall indemnify, defend, and hold Spafinder and its
Indemnitees harmless from and against any and all Losses arising from or
relating to any third-party claim, demand, allegation, action, or threat of
action arising from or relating to services provided (or not provided) by, or
actions (or failure to act) of, Partner or any of its representatives or any
other individual or entity. This paragraph shall survive any expiration or
termination of any or all Insertion Order(s).

9. Confidentiality. The terms and conditions of any Insertion Order are confidential information of Spafinder, and Partner shall not make any public statement, press release, or other announcement relating to, or otherwise disclose to any third-party, the terms and conditions of or existence of any Insertion Order without Spafinder’s prior written approval. This provision shall survive any expiration or termination of any Insertion Order.

10. Changes to Terms and Conditions. Spafinder may modify these Terms and Conditions at any time. Such changes are effective upon their posting on Spafinder.com. Partner is responsible for regularly reviewing these Terms and Conditions on Spafinder.com, and Partner’s continued use of Spafinder's services after any such changes are made shall constitute Partner’s consent to such changes.

11. Governing Law; Arbitration. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of law principles thereof. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or the alleged breach thereof shall be resolved by one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect in San Francisco, California and shall be held in the San Francisco Bay Area. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Costs of AAA will be shared equally by both Parties.

12. Independent Contractors. Spafinder and Partner are independent contractors and neither Party is the legal representative, agent, joint venturer, partner, or employee of the other Party.

13. Assignment. Either party may assign any Insertion Order by providing the other party 30 days’ written notice, provided that the assignee agrees to be bound by these Terms and Conditions. In the event of a change in ownership of the Property, the Property must arrange for the new owner to deliver to Spafinder a copy of the relevant documentation memorializing the transaction.

Enhanced Partner Program Terms and Conditions

Revision date: June 2017

1. Relationships and Agreement. These Enhanced Partner Program Terms and Conditions (these “Terms and Conditions”), together with any associated Insertion Orders, govern the relationship between you (“Partner”) and Blackhawk Issued Content, LLC (“Spafinder”). Each Insertion Order addresses certain other details of your arrangement with Spafinder.

2. Description of Service. Spafinder shall: (i) deliver the marketing support for the specific locations designated in the Insertion Order(s) (the “Property,” or “Properties”); and (ii) display on the Spafinder.com website(s) the Property listing(s) (“Property Listing(s)”) for Partner, all as set forth in detail in the applicable Insertion Order. The services to be provided by Spafinder herein are only for the Properties identified in an Insertion Order, and Partner may only redeem Spafinder Gift Certificates and Gift Cards at such Properties. If Partner has additional locations, Partner must enter into a separate Insertion Order for each such location, unless Spafinder specifically agrees in writing to include such locations in the same Insertion Order. If Partner seeks to redeem Spafinder Gift Certificates or Gift Cards from a location that is not subject to an Insertion Order with Spafinder, Partner agrees that it will owe and be obligated to pay to Spafinder, and Spafinder shall be authorized to immediately invoice Partner for all monthly fees that would have been due from such location(s) from the date of the applicable Insertion Order if such location(s) had been Property(ies) subject to the Insertion Order.

3. Standards for Property Listings.

Partner will provide, in a timely manner and as requested by
Spafinder, the content and graphics to enable Spafinder to display each Property
Listing. Spafinder will provide a preview link to the Partner to review and
approve its Property Listing. If the Partner has not responded to this link
within ten (10) business days, the Property Listing will be deemed to have been
approved by the Partner and will go live on Spafinder.com. Partner is
responsible for ensuring that the information provided in each Property Listing
is true, correct and complete in all respects. Spafinder is not responsible or
liable for any mistakes, errors or omissions in any Property Listing. Partner
shall notify Spafinder of any changes in a Property Listing as soon as such
revised information is available.
Partner shall use its best efforts to make sure that all
reservations agents, customer service agents, and other personnel are familiar
with and knowledgeable of all deals and other specials promoted by Partner at
applicable Properties on the Spafinder websites.
Spafinder reserves the right to reject, remove and/or cancel any
Property Listing that contains or links to content that Spafinder in its sole
discretion deems to be: (i) offensive or otherwise inconsistent with
Spafinder's content standards; (ii) violating law or third-party rights; or
(iii) otherwise objectionable to Spafinder. Spafinder may also cancel any
Property Listing if Partner does not meet the standards set forth in (b) above.
Should Spafinder exercise this right, Partner shall be entitled only to a
refund of the pro-rata portion of amounts paid for the unfulfilled Property
Listing(s), if any, and Spafinder shall have no further liability for any such
cancellation. Partner represents and warrants to Spafinder that the information
contained in each Property Listing does not and will not infringe upon, or be a
misappropriation of, any third-party copyright, trademark, patent, trade
secret, or other intellectual property or proprietary right of any third-party,
be libelous or obscene or otherwise violate any law or right of any third-party.
Partner is solely responsible for the content of its Property Listing(s) and
any website linked to from such Property Listing(s) and shall indemnify, defend
and hold harmless Spafinder’s Indemnitees (defined below) for all Losses
(defined below) in connection with any claims by any third parties relating to
any Property Listing or any such website.
Spafinder has and retains full and exclusive right, title and
ownership interest in and to the Spafinder websites and all content and
graphics contained therein, except for Partner's content and graphics contained
therein. Partner has and retains full and exclusive right, title and ownership
interest in and to content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder websites. Partner grants to Spafinder and its
affiliates a non-exclusive, world-wide, royalty-free license to use, reproduce
and edit any content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder website(s) or other distribution channels as
Spafinder deems appropriate.

4. Gift Cards / Gift Certificates. These Terms and Conditions also include the Gift Card/Gift Certificate Terms and Conditions

5. Payments. Payments due to Spafinder must be made by credit card only and as per the terms of the applicable Insertion Order. If the monthly installment payment option is chosen, the first monthly payment is due upon execution of the applicable Insertion Order Ongoing installments will be charged monthly thereafter. If the annual fee payment option is chosen, payment in full is due upon execution of the Insertion Order. If Partner’s credit card cannot be accepted for payment at any time and an alternate card is not provided at the time any installment is due, Spafinder may, in its sole discretion, suspend Partner’s Property Listing(s) and make relisting subject to a reinstatement fee. Spafinder will not make payments to any other third-party on behalf of Partner; payments owed will be paid directly to Partner. Spafinder may offset amounts payable to Partner arising from redemptions against Partner’s payment obligations to Spafinder. If Partner breaches its payment obligations under these Terms and Conditions or any Insertion Order, Partner agrees to pay all costs, fees and expenses, including reasonable attorney's fees that Spafinder incurs as a result of Partner’s breach.

6. Compliance. Partner represents and warrants that: (i) its business is, and will at all times be operated in full compliance with all licensing and similar requirements to which it is subject; and (ii) its staff is, and will at all times be in full compliance with all licensing and similar requirements to which it is subject and properly trained to perform the procedures/services each Property performs.

7. Effective Date, Term, Termination, Default. The Effective Date of any Insertion Order is the date it is signed by the Partner. The term of any Insertion Order is for one (1) year beginning on the Effective Date. The Insertion Order shall automatically renew annually on the anniversary of the Effective Date for subsequent one (1) year terms.

After the first anniversary of the Effective Date of any Insertion Order, Partner may terminate an Insertion Order for any reason upon thirty (30) days’ prior written notice to Spafinder; and, if Partner has already paid the annual fee, Partner shall receive a pro-rata refund. No refunds will be made on monthly installment payments. During the first year of the term of any Insertion Order, Partner may elect to downgrade its listing to Spafinder's Standard Partner Program for the remainder of the initial year-long term. Effective upon the execution of such election, Partner will be subject to the Terms and Conditions of the Standard Partner Program.

Spafinder may terminate any Insertion Order at any time for any reason or for no reason upon written notice to the Partner. If Spafinder terminates any Insertion Order for any reason other than a breach of an Insertion Order or other misconduct by the Partner, Partner shall receive a pro-rata refund on any annual fee payment paid in advance.

Spafinder can change the Enhanced Partner Program fee at any time; however, Spafinder will provide Partner with thirty (30) days’ prior written notice of any such change. If Partner elects not to accept the revised program fee, Partner may terminate its Insertion Order by providing written notice to Spafinder within thirty (30) days of its receipt of Spafinder’s notice of change.

8. Limitations of Liability and Indemnification.

IN NO EVENT WILL SPAFINDER BE RESPONSIBLE FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND,
INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA,
REGARDLESS OF WHETHER SPAFINDER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF. MOREOVER, SPAFINDER'S MAXIMUM LIABILITY
HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH
OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY PARTNER TO
SPAFINDER UNDER THE APPLICABLE INSERTION ORDER DURING THE PRIOR TWELVE (12)
MONTH PERIOD. THIS PROVISION SHALL SURVIVE THE TERMINATION OF ANY OR ALL
INSERTION ORDER(S).
EXCEPT AS OTHERWISE STATED HEREIN, SPAFINDER DISCLAIMS ANY AND
ALL WARRANTIES AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES
DISPLAYED ON A SPAFINDER WEBSITE OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE
TIMES OF A SPAFINDER WEBSITE. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR
TERMINATION OF ANY OR ALL INSERTION ORDER(S).
Each Party (the “Indemnifying Party”) shall indemnify, defend
and hold harmless the other Party (the “Indemnified Party”) and the other
Party's officers, directors, partners, agents, employees, and affiliates
(collectively, “Indemnitees”) from and against any and all claims, damages,
liabilities, judgments, costs and expenses (including reasonable attorney's
fees and disbursements) (“Losses”) arising from or relating to any third-party
claim, demand, allegation, action or threat of action arising from or relating
to the Indemnifying Party’s: (i) actual or alleged breach of its
representations, warranties, or covenants hereunder; (ii) violation of
applicable law or regulation or (iii) fraud, theft, or willful misconduct.
In addition, Partner shall indemnify, defend, and hold Spafinder and its
Indemnitees harmless from and against any and all Losses arising from or
relating to any third-party claim, demand, allegation, action, or threat of
action arising from or relating to the services provided (or not provided) by,
or actions (or failure to act) of, Partner or any of its representatives or any
other individual or entity. This paragraph shall survive any expiration or
termination of any or all Insertion Order(s).

9. Confidentiality. The terms and conditions of any Insertion Order are confidential information of Spafinder and Partner shall not make any public statement, press release, or other announcement relating to, or otherwise disclose to any third-party, the terms and conditions of or existence of any Insertion Order without the prior written approval of Spafinder. This provision shall survive any expiration or termination of any or all Insertion Order(s).

12. Independent Contractors. Spafinder and Partner are independent contractors and neither Party is the legal representative, agent, joint venturer, partner, or employee of the other Party.

Travel Partner Program Terms and Conditions

Revision date: June 2017

1. Relationships and Agreement. These Travel Partner Program Terms and Conditions (these “Terms and Conditions”), together with any associated Insertion Orders, govern the relationship between you (“Partner”) and Blackhawk Issued Content, LLC (“Spafinder”). Each Insertion Order addresses certain other details of your arrangement with Spafinder.

2. Description of Service. Spafinder shall: (i) deliver the marketing support for the specific location(s) designated in the Insertion Order (the “Property,” or “Properties”); and (ii) display on the Spafinder.com website(s) the Property listing(s) (“Property Listing(s)”) for Partner, all as set forth in detail in the applicable Insertion Order. The services to be provided by Spafinder herein are only for the Properties identified in the Insertion Order, and Partner may only redeem Spafinder Gift Certificates and Gift Cards at such Properties. If Partner has additional locations, Partner must enter into a separate Insertion Order for each such Property (unless Spafinder specifically agrees in writing to include such locations in the same Insertion Order). If Partner seeks to redeem Spafinder Gift Certificates or Gift Cards from a location that is not subject to an Insertion Order with Spafinder, Partner agrees that it will owe and be obligated to pay to Spafinder, and Spafinder shall be authorized to immediately invoice Partner for, all monthly fees that would have been due from such location(s) from the date of the applicable Insertion Order if such location(s) had been Property(ies) subject to the Insertion Order.

3. Standards for Property Listings.

Partner will provide, in a timely manner and as requested by
Spafinder, the content and graphics to enable Spafinder to display each
Property Listing. Partner is responsible for ensuring that the information in
each Property Listing is true, correct and complete in all respects. Spafinder
is not responsible or liable for any mistakes, errors or omissions in any
Property Listing. Partner shall notify Spafinder of any changes in a Property
Listing as soon as such revised information is available.
Partner shall use its best efforts to respond to all booking
requests within twenty four (24) hours of receipt, and to make sure that all
reservations agents, customer service agents, and other personnel are familiar
with and knowledgeable of all deals and other specials promoted by the Partner
at applicable Properties on the Spafinder websites.
Spafinder reserves the right to reject, remove and/or cancel any
Property Listing that contains or links to content that Spafinder in its sole
discretion deems to be: (i) offensive or otherwise inconsistent with
Spafinder's content standards; (ii) violating law or third-party rights; or
(iii) otherwise objectionable to Spafinder. Spafinder may also cancel any
Property Listing if Partner does not meet the standards set forth in (b) above.
Should Spafinder exercise this right, Partner shall be entitled only to a
refund of the pro-rata portion of amounts paid for the unfulfilled Property
Listing, if any, and Spafinder shall have no further liability for such
cancellation. Partner represents and warrants to Spafinder that the information
contained in each Property Listing does not and will not infringe upon, or be a
misappropriation of any third-party copyright, trademark, patent, trade secret,
or other intellectual property or proprietary right of any third-party, be
libelous or obscene or otherwise violate any law or right of any third-party.
Partner is solely responsible for the content of its Property Listing and any
website linked to from such Property Listing and shall indemnify, defend and
hold harmless Spafinder’s Indemnitees (defined below) for all Losses (defined
below) in connection with any claims by any third parties relating to any
Property Listing or any such website.
Spafinder has and retains full and exclusive right, title and
ownership interest in and to the Spafinder websites and all content and
graphics contained therein, except for Partner’s content and graphics contained
therein. Partner has and retains full and exclusive right, title and ownership
interest in and to content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder websites. Partner grants to Spafinder and its
affiliates a non-exclusive, world-wide, royalty-free license to use, reproduce
and edit any content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder website(s) or other distribution channels as
Spafinder deems appropriate.

4. Gift Cards / Gift Certificates. These Terms and Conditions also include the Gift Card/Gift Certificate Terms and Conditions

5. Payments. Payments due to Spafinder, as per the terms of the applicable Insertion Order, will be invoiced upon contract signing and are due net thirty (30) days from the date of invoice. Payments more than sixty (60) days late may be subject to an interest rate of 1.5% per month; and, Spafinder may, at its sole discretion, suspend Partner’s Property Listing(s) and make relisting subject to a reinstatement fee. Spafinder will not make payments to any other third-party on behalf of Partner; all payments owed will be paid directly to Partner. Spafinder may offset amounts payable to Partner arising from redemptions against Partner’s payment obligations to Spafinder. If Partner breaches its payment obligations under these Terms and Conditions or any Insertion Order, Partner agrees to pay all costs, fees and expenses, including reasonable attorney's fees that Spafinder incurs as a result of Partner’s breach.

6. Compliance. The Partner represents and warrants that (i) its business is, and will at all times be operated in full compliance with all licensing and similar requirements to which it is subject, and (ii) its staff is, and will at all times be in full compliance with all licensing and similar requirements to which it is subject and properly trained to perform the procedures/services each Property performs.

7. Effective Date, Term, Termination, Default. The Effective Date of any Insertion Order is the date it is signed by Partner. The term of any Insertion Order is for one (1) year beginning on the Effective Date. The Insertion Order shall automatically renew annually on the anniversary of the Effective Date for subsequent one (1) year terms. After the first anniversary of the Effective Date of any Insertion Order, Partner may terminate an Insertion Order at any time and for any reason upon thirty (30) days’ prior written notice; and, if Partner has already paid the annual fee, Partner shall receive a pro-rata refund.

Spafinder may terminate any Insertion Order at any time for any reason or no reason upon written notice to Partner. If Spafinder terminates any Insertion Order for any reason other than a breach of the Insertion Order or other misconduct by Partner, Partner shall receive a pro-rata refund on any annual fee payment paid in advance.

Spafinder can change the Travel Partner Program fee at any time, however, Spafinder will provide Partner with thirty (30) days’ prior written notice of any such change. If Partner elects not to accept the revised program fee, Partner may terminate its Insertion Order by providing written notice to Spafinder within thirty (30) days of its receipt of the Spafinder’s notice of change.

IF AN INSERTION ORDER IS TERMINATED BY PARTNER OR PARTNER IS REMOVED FROM THE PROGRAM FOR ANY REASON (E.G. NONPAYMENT, VIOLATION OF TERMS), AND PARTNER THEREAFTER SEEKS TO RETURN TO THE PROGRAM, RENTRY WILL BE SUBJECT TO A $1,500 REINSTATEMENT FEE.

8. Limitations of Liability and Indemnification.

IN NO EVENT WILL SPAFINDER BE RESPONSIBLE FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND,
INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA,
REGARDLESS OF WHETHER SPAFINDER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF. MOREOVER, SPAFINDER'S MAXIMUM LIABILITY
HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH
OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY THE PARTNER TO
SPAFINDER HEREUNDER DURING THE PRIOR TWELVE (12) MONTH PERIOD. THIS PROVISION
SHALL SURVIVE THE TERMINATION OF ANY OR ALL INSERTION ORDER(S).
EXCEPT AS OTHERWISE STATED HEREIN, SPAFINDER DISCLAIMS ANY AND
ALL WARRANTIES AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES
DISPLAYED ON A SPAFINDER WEBSITE OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE
TIMES OF A SPAFINDER WEBSITE. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR
TERMINATION OF ANY OR ALL INSERTION ORDER(S).
Each Party (the “Indemnifying Party”) shall indemnify, defend
and hold harmless the other Party (the “Indemnified Party”) and the Indemnified
Party's officers, directors, partners, agents, employees, and affiliates
(collectively, “Indemnitees”) from and against any and all losses, claims,
damages, liabilities, judgments, costs and expenses (including reasonable
attorney's fees and disbursements) (“Losses”) arising from or relating to any third-party
claim, demand, allegation, action or threat of action arising from or relating
to the Indemnifying Party’s: (i) actual or alleged breach of its
representations, warranties, or covenants hereunder; (ii) violation of
applicable law or regulation or (iii) fraud, theft, or willful
misconduct.. In addition, Partner shall indemnify, defend, and hold Spafinder
and its Indemnitees harmless from and against any and all Losses arising from
or relating to any third-party claim, demand, allegation, action, or threat of
action arising from or relating to the services provided (or not provided) by, or
actions (or failure to act) of, Partner or any of its representatives or any
other individual or entity. This paragraph shall survive any expiration or
termination of any or all Insertion Order(s).

12. Independent Contractors. Spafinder and Partner are independent contractors and neither Party is the legal representative, agent, joint venturer, partner, or employee of the other Party.

Flex Partner Program Terms and Conditions (Grandfathered Partners Only)

Revision date: June 2017

2. Description of Service. Spafinder shall; (i) deliver the marketing support for the specific locations designated in the Insertion Order(s) (the “Property” or “Properties”); and (ii) display on the Spafinder.com website(s) the Property listing(s) (“Property Listing(s)”) for Partner, all as set forth in detail in the applicable Insertion Order. The services to be provided by Spafinder herein are only for the Properties identified in an Insertion Order, and Partner may only redeem Spafinder Gift Certificates and Gift Cards at such Properties. If the Partner has additional locations, Partner must enter into a separate Insertion Order for each such location, unless Spafinder specifically agrees in writing to include such locations in the same Insertion Order.

3. Standards for Property Listings.

Partner is responsible for ensuring that the information
provided in each Property Listing is true, correct and complete in all
respects. Spafinder is not responsible or liable for any mistakes, errors or
omissions in any Property Listing. Partner shall notify Spafinder of any
changes in a Property Listing as soon as such revised information is available.
Partner shall use its best efforts to make sure that all
reservations agents, customer service agents, and other personnel are familiar
with and knowledgeable of all deals and other specials promoted by Partner at
applicable Properties on the Spafinder websites.
Spafinder reserves the right to reject, remove and/or cancel any
Property Listing that contains or links to content that Spafinder in its sole
discretion deems to be: (i) offensive or otherwise inconsistent with
Spafinder's content standards; (ii) violating law or third-party rights; or
(iii) otherwise objectionable to Spafinder. Spafinder may also cancel any
Property Listing if Partner does not meet the standards set forth in (b) above.
Should Spafinder exercise this right, Partner shall be entitled only to a
refund of the pro-rata portion of amounts paid for the unfulfilled Property
Listing(s), if any, and Spafinder shall have no further liability for such
cancellation. Partner represents and warrants to Spafinder that the information
contained in each Property Listing does not and will not infringe upon, or be a
misappropriation of, any third-party copyright, trademark, patent, trade
secret, or other intellectual property or proprietary right of any third-party,
be libelous or obscene or otherwise violate any law or right of any third-party.
Partner is solely responsible for the content of its Property Listing(s) and
any website linked to from such Property Listing(s), and shall indemnify,
defend and hold harmless Spafinder’s Indemnitees (defined below) for all Losses
(defined below) in connection with any claims by any third parties relating to
any Property Listing or any such website.
Spafinder has and retains full and exclusive right, title and
ownership interest in and to the Spafinder websites and all content and
graphics contained therein, except for Partner’s content and graphics contained
therein. Partner has and retains full and exclusive right, title and ownership
interest in and to content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder websites. Partner grants to Spafinder (and its
affiliates) a non-exclusive, world-wide, royalty-free license to use, reproduce
and edit any content and graphics provided by Partner to Spafinder for
inclusion in the Spafinder website(s) or other distribution channels as
Spafinder deems appropriate.

4. Gift Cards / Gift Certificates. These Terms and Conditions also include the Gift Card/Gift Certificate Terms and Conditions

5. Compliance. Partner represents and warrants that (i) its business is, and will at all times be, operated in full compliance with all licensing and similar requirements to which it is subject, and (ii) its staff is, and will at all times be, in full compliance with all licensing and similar requirements to which it is subject, and properly trained to perform the procedures/services each Property performs.

6. Effective Date, Termination, Default. The Effective Date of any Insertion Order is the date it is signed by Partner. Partner may terminate any Insertion Order at any time and for any reason upon thirty (30) days’ prior written notice to Spafinder. If Partner terminates this Insertion Order, Spafinder may charge Partner a $50.00 cancellation fee. Spafinder may terminate any Insertion Order at any time for any reason or for no reason upon written notice to Partner.

7. Limitations of Liability and Indemnification.

IN NO EVENT WILL SPAFINDER BE RESPONSIBLE FOR INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND,
INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA,
REGARDLESS OF WHETHER SPAFINDER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN
FACT KNEW OF THE POSSIBILITY THEREOF. MOREOVER, SPAFINDER'S MAXIMUM LIABILITY
HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH
OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY THE PARTNER TO
SPAFINDER UNDER THE APPLICABLE INSERTION ORDER DURING THE PRIOR TWELVE (12) MONTH
PERIOD. THIS PROVISION SHALL SURVIVE THE TERMINATION OF ANY OR ALL INSERTION
ORDER(S).
EXCEPT AS OTHERWISE STATED HEREIN, SPAFINDER DISCLAIMS ANY AND
ALL WARRANTIES, AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES
DISPLAYED ON A SPAFINDER WEBSITE, OR THE FUNCTIONALITY, PERFORMANCE, OR
RESPONSE TIMES OF A SPAFINDER WEBSITE. THIS PROVISION SHALL SURVIVE ANY
EXPIRATION OR TERMINATION OF ANY OR ALL INSERTION ORDER(S).
Each Party (the “Indemnifying Party”) shall indemnify, defend
and hold harmless the other Party (the “Indemnified Party”) and the Indemnified
Party's officers, directors, partners, agents, employees, and affiliates
(collectively, “Indemnitees”) from and against any and all losses, claims,
damages, liabilities, judgments, costs and expenses (including reasonable
attorney's fees and disbursements) (“Losses”) arising from or relating to any third-party
claim, demand, allegation, action or threat of action arising from or relating
to the Indemnifying Party’s: (i) actual or alleged breach of its
representations, warranties, or covenants hereunder; (ii) violation of
applicable law or regulation; or (iii) fraud, theft, or willful
misconduct. In addition, Partner shall indemnify, defend, and hold Spafinder
and its Indemnitees harmless from and against any and all Losses arising from
or relating to any third-party claim, demand, allegation, action, or threat of
action arising from or relating to services provided (or not provided) by, or
actions (or failure to act) of, Partner or any of its representatives or any
other individual or entity. This paragraph shall survive any expiration or
termination of any or all Insertion Order(s).

8. Confidentiality. The terms and conditions of any Insertion Order are confidential information of Spafinder, and Partner shall not make any public statement, press release, or other announcement relating to, or otherwise disclose to any third-party, the terms and conditions of or existence of any Insertion Order without Spafinder’s prior written approval. This provision shall survive any expiration or termination of any Insertion Order.

9. Changes to Terms and Conditions. Spafinder may modify these Terms and Conditions at any time. Such changes are effective upon their posting on Spafinder.com. Partner is responsible for regularly reviewing these Terms and Conditions on Spafinder.com, and Partner’s continued use of Spafinder's services after any such changes are made shall constitute Partner’s consent to such changes.

10. Governing Law; Arbitration. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflict of law principles thereof. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or the alleged breach thereof shall be resolved by one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect in San Francisco, California and shall be held in the San Francisco Bay Area. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Costs of AAA will be shared equally by both Parties.

11. Independent Contractors. Spafinder and Partner are independent contractors and neither Party is the legal representative, agent, joint venturer, partner, or employee of the other Party.

12. Assignment. Either party may assign any Insertion Order by providing the other party 30 days’ written notice, provided that the assignee agrees to be bound by these Terms and Conditions. In the event of a change in ownership of the Property, the Property must arrange for the new owner to deliver to Spafinder a copy of the relevant documentation memorializing the transaction.

Gift Certificate/Gift Card Terms and Conditions

Revision date June 2017

These Gift Certificate/Gift Card Terms & Conditions are applicable to each of the Standard, Enhanced, Travel, and Flex Partner Programs.

1. Definitions:

“Gift Card” means an Old Gift Card or a New Gift Card
“New Gift Card” means a gift card bearing the Spafinder or
SpaWish brands: (i) issued by Pathward or another financial institution
under a contract with Spafinder or an affiliate of Spafinder; (ii) that is
redeemed at point-of-sale; and (iii) that can be redeemed in one or
multiple transactions.
“Old Gift Card” means a gift card or gift certificate bearing
the Spafinder or SpaWish brands: (i) issued by Spafinder (or a predecessor
of Spafinder); (ii) that is redeemed via the Spafinder online portal; and
(iii) that can only be redeemed in full in one transaction.

2. Partner agrees to accept and honor Gift Cards at full face value in exchange for services and products, the same as they accept cash or credit/debit cards, without exception or limitation, charging prices no greater than Partner's posted or publicly advertised and available rates.

3. Old Gift Cards: With respect to Old Gift Cards, the following will apply:

Partner must remit to Spafinder to be redeemed all Gift Certificates and Gift Cards used by customers in order to receive reimbursement and will follow applicable Spafinder's redemption procedures in effect from time to time. Spafinder will remit to Partner the face value of the redeemed Gift Certificate or Gift Card less: (i) for Partners under the Standard Partner Program, Enhanced Partner Program, or Travel Partner Program, a 17% marketing fee for "grandfathered" merchants and 20% for current merchants.
Partner will return any remaining balance on a Gift Card to the customer in the form of Partner's own gift certificate or credit. Partner may keep any and all sales dollars received from customer in excess of the face value of the Gift Card.
Partner may redeem Gift Cards either by mail or online redemption. For redemptions by mail, Partner must send the Gift Card to: Blackhawk Network, 10615 Professional Circle, Suite 102, Reno, Nevada, 89521. Spafinder will pay Partner within twenty (20) business days of receipt. For faster payment, Partner may sign up for online redemption of. (Ask your sales representative or contact Spafinder at directdepositforms@spafinder.com).
Partner acknowledges and agrees that it will only seek to redeem Gift Certificates or Gift Cards actually used by a customer at a specific Property and presented to Partner at a Property for payment. In the event that any Gift Certificate or Gift Card submitted by Partner for redemption is thereafter re-submitted by any other party for redemption, Partner will indemnify, defend and hold harmless Spafinder for all costs incurred by Spafinder in connection with such re-submission. Partner will be responsible for any damage to Spafinder's computer system resulting from Partner downloading any information (e.g. computer viruses, bugs, etc.) in connection with any online redemption.
For online redemptions, Partner acknowledges that Spafinder may, at any time within six (6) months of a redemption, require Partner to deliver the original Gift Card directly to Spafinder. Accordingly, Partner agrees to keep all original Gift Cards for at least six (6) months following each redemption.
Partner may, but is not required to, sign up for Automated Clearing House payments. (Ask your sales representative or contact Spafinder at sfpp@spafinder.com). If Partner does not sign up for Automated Clearing House payments, it will be charged a $15-dollar handling fee for each reimbursement check received from Spafinder.

4. New Gift Cards: With respect to New Gift Cards, Gift Card transactions will be settled through the Visa network. Partner will receive payment upon redemption as it does for any other Visa signature debit transaction; provided, however, that the interchange rate will be set at twenty percent (20%). Partner will honor any active New Gift Card presented by a cardholder at Partner locations in accordance with the Network Rules, including after the termination or expiration of any agreement between Partner and Spafinder. Partner will inform its Network acquirer (i) of each New Gift Card it will accept and (ii) in each case, that the acquirer will incur internal transfer pricing fees on New Gift Card transactions processed through the Network. Partner acknowledges that the Network Rules do not permit cardholders to initiate so-called “chargebacks.” To the extent that Partner or Spafinder provides a refund or credit to a cardholder, it does so at its own expense. Partner agrees not to allow cardholders to add any additional amount to a redemption transaction after the redemption transaction has been authorized (e.g., tips). To the extent Partner allows such an additional amount to be added postauthorization and the transaction creates a negative balance: (i) Partner will be responsible for any such negative balance; (ii) Spafinder may invoice Partner for any amount settled by the Network to Partner’s acquiring bank as a result of such negative balance; and (iii) Partner will pay such invoice within thirty (30) days of receipt.

5. Partner agrees to abide by any fraud protection policies, procedures and devices that Spafinder implements from time to time in order to protect both Spafinder and Partner from fraudulent use of Gift Cards. Partner acknowledges that Spafinder can change the look of its Gift Certificate and Gift Card from time to time, particularly in connection with an arrangement with a corporate partner. If Partner is uncertain about the validity of a Gift Card, Partner must contact Spafinder’s quality control department at sfpp@spafinder.com for clarification before accepting the Gift Card. For increased security protection, Spafinder safeguards Gift Cards by having detailed records of the Gift Card number, value, and (in some cases) name of recipient. Partner's failure to abide by such policies, procedures and devices may: (i) limit or preclude Partner's reimbursement for an Old Gift Card; and/or (ii) limit Partner’s ability to redeem New Gift Cards.

6. Spafinder may terminate its Old Gift Card program upon thirty (30) days’ notice to Partner. However, Old Gift Cards will be honored for redemption if presented to Partner before the expiration of said thirty (30) day period.

Digital Advertising Campaigns

Revision date June 2017

Terms & Condition

These standard terms and conditions for online advertising are intended to offer media companies and advertising agencies a standard for conducting business in a manner acceptable to both. This document may not fully cover online marketing agreements, sponsorships and other arrangements, and/or special production, but may be used as the basis for the media components of such contracts. These terms and conditions are not meant to cover the relationship between a publisher and a network, or direct advertiser buys with publishers.

1. DEFINITIONS

“Ad” means any advertisement provided by Agency on behalf of an Advertiser.

“Advertiser” means the advertiser: (i) that is entering into an IO directly; or (ii) for which Agency is the agent under an applicable IO.

“Advertising Materials” means artwork, copy, or active URLs for Ads.

“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.

“Agency” means the advertising agency listed on the applicable IO, if any.

“Deliverable” or “Deliverables” means the inventory delivered by Media Company.

“Insertion Order” (“IO”) means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.

“Media Company” means the publisher listed on the applicable IO.

“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.

“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.

“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company's public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.

“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.

“Site” or “Sites” means Media Company Properties and Network Properties.

“Terms” means these standard terms and conditions for online advertising.

“Third-party” means an entity or person that is not a party to an IO. For purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third-parties.

“Third-party Ad Server” means a Third-party that will serve and/or track Ads.

2. INSERTION ORDERS AND INVENTORY AVAILABILITY

IO Details. From time to time, Media Company and Agency or
Advertiser may execute IOs that will be accepted as set forth in Section 2(b).
As applicable, each IO will specify: (i) the type(s) and amount(s) of
Deliverables; (ii) the price(s) for such Deliverables; (iii) the maximum amount
of money to be spent pursuant to the IO; (iv) the start and end dates of the
campaign; and (v) the identity of and contact information for any Third-party
Ad Server. Other items that may be included are, but are not limited to,
reporting requirements, any special Ad delivery scheduling and/or Ad placement
requirements, and specifications concerning ownership of data collected. If
Advertiser enters into the IO directly, all of the obligations of “Agency”
pursuant to these Terms and the IO will be deemed to be obligations of
Advertiser, and any provisions in the Terms or IO that are particular to an
agency in its role as agent for an advertiser will be disregarded.
Availability; Acceptance. Media Company will make commercially
reasonable efforts to notify Agency within two (2) business days of receipt of
an IO signed by Agency if the specified inventory is not available. Acceptance
of the IO and these Terms will be deemed the earlier of: (i) written (which,
unless otherwise specified, for purposes of these Terms, will include paper,
fax, or e-mail communication) approval of the IO by Media Company and Agency;
or (ii) the display of the first Ad impression by Media Company, unless
otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the
originally submitted IO will not be binding unless approved in writing by both
Media Company and Agency.
Revisions to accepted IOs will be made in writing and
acknowledged by the other party in writing.

3. AD PLACEMENT AND POSITIONING

Compliance with IO. Media Company will comply with the IO,
including all Ad placement restrictions, and, except as set forth in Section
7(c), will create a reasonably balanced delivery schedule. Media Company will provide, within the scope
of the IO, an Ad to the Site specified on the IO when such Site is visited by
an Internet user. Any exceptions will be
approved by Agency in writing.
Changes to Site. Media
Company will use commercially reasonable efforts to provide Agency at least 10
business days prior notification of any material changes to the Site that would
materially change the target audience or materially affect the size or
placement of the Ad specified on the applicable IO. Should such a modification occur with or
without notice, as Agency's and Advertiser's sole remedy for such change,
Agency may cancel the remainder of the affected placement without penalty
within the 10-day notice period. If
Media Company has failed to provide such notification, Agency may cancel the
remainder of the affected placement within 30 days of such modification and, in
such case, will not be charged for any affected Ads delivered after such
modification.
Technical Specifications. Media Company will submit or otherwise make
electronically accessible to Agency final technical specifications within ten
(10) business days of the acceptance of an IO. Changes by Media Company to the specifications
of already purchased Ads after that ten (10) business day period, will allow
Advertiser to suspend delivery of the affected Ad for a reasonable time
(without impacting the end date, unless otherwise agreed by the parties) in
order to: (i) send revised Advertising Materials; (ii) request that Media Company
resize the Ad at Media Company's cost, and with final creative approval of
Agency, within a reasonable time period to fulfill the guaranteed levels of the
IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to
negotiate an alternate or comparable replacement in good faith within five (5)
business days, immediately cancel the remainder of the affected placement
without penalty.
Editorial Adjacencies. Media
Company acknowledges that certain Advertisers may not want their Ads placed
adjacent to content that promotes pornography, violence, or the use of
firearms, contains obscene language, or falls within another category stated on
the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable
efforts to comply with the Editorial Adjacency Guidelines with respect to Ads
that appear on Media Company Properties, although Media Company will at all
times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company
and Agency agree that Media Company's sole responsibilities with respect to
compliance with these Editorial Adjacency Guidelines will be to obtain
contractual representations from its participating network publishers that such
publishers will comply with Editorial Adjacency Guidelines on all Network
Properties and to provide the remedy specified below to Agency with respect to
violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the
Editorial Adjacency Guidelines, Advertiser's sole and exclusive remedy is to
request in writing that Media Company remove the Ads and provide makegoods or,
if no makegood can be agreed upon, issue a credit to Advertiser equal to the
value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be
shown to be commercially infeasible for the Advertiser, Agency and Media
Company will negotiate an alternate solution. After Agency notifies Media Company that
specific Ads are in violation of the Editorial Adjacency Guidelines, Media
Company will make commercially reasonable efforts to correct such violation
within 24 hours. If such correction
materially and adversely impacts such IO, Agency and Media Company will
negotiate in good faith mutually agreed changes to such IO to address such
impacts. Notwithstanding the foregoing,
Agency and Advertiser each acknowledge and agree that no Advertiser will be
entitled to any remedy for any violation of the Editorial Adjacency Guidelines
resulting from: (i) Ads placed at locations other than the Sites; or (ii) Ads
displayed on properties that Agency or Advertiser is aware, or should be aware,
may contain content in potential violation of the Editorial Adjacency
Guidelines.
For any page on the Site that primarily consists of
user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially
reasonable efforts to ensure that Ads are not placed adjacent to content that
violates the Site's terms of use. Advertiser's
and Agency's sole remedy for Media Company's breach of such obligation will be
to submit written complaints to Media Company, which will review such
complaints and remove user-generated content that Media Company, in its sole
discretion, determines is objectionable or in violation of such Site's terms of
use.

4. PAYMENT AND PAYMENT LIABILITY

The initial invoice will be sent by Media Company as set forth
in the IO. Invoices will be sent to
Agency's billing address as set forth on the IO and will include information
reasonably specified by Agency, such as the IO number, Advertiser name, brand
name or campaign name, and any number or other identifiable reference stated as
required for invoicing on the IO. All invoices (other than corrections of previously
provided invoices) pursuant to the IO will be sent within 90 days of delivery
of all Deliverables. Media Company acknowledges that failure by Media Company
to send an invoice within such period may cause Agency to be contractually
unable to collect payment from the Advertiser. If Media Company sends the
invoice after the 90-day period and the Agency either has not received the
applicable funds from the Advertiser or does not have the Advertiser's consent
to dispense such funds, Agency will use commercially reasonable efforts to
assist Media Company in collecting payment from the Advertiser or obtaining
Advertiser's consent to dispense funds. Upon
request from the Agency, Media Company should provide proof of performance for
the invoiced period, which may include access to online or electronic
reporting, as addressed in these Terms, subject to the notice and cure
provisions of Section 5. Media Company should invoice Agency for the services
provided on a calendar-month basis with the net cost (i.e., the cost after
subtracting Agency commission, if any) based on actual delivery, flat-fee, or
based on prorated distribution of delivery over the term of the IO, as
specified on the applicable IO.
Payment Date. Agency will make payment 30 days from its receipt
of invoice, or as otherwise stated in a payment schedule set forth on the IO.
Media Company may notify Agency that it has not received payment in such 30-day
period and whether it intends to seek payment directly from Advertiser pursuant
to Section 4(c) below, and Media Company may do so five (5) business days after
providing such notice.
Payment Liability. Unless otherwise set forth by Agency on the
IO, Media Company agrees to hold Agency and Advertiser jointly and severally
liable for payments solely to the extent proceeds have cleared from Advertiser
to Agency for Ads placed in accordance with the IO. For sums not cleared to
Agency, Media Company agrees to hold Agency and Advertiser jointly and
severally liable. Media Company understands that Advertiser is Agency's
disclosed principal and Agency, as agent, has no obligations relating to such
payments, either joint or several, except as specifically set forth in this
Section 4(c) and Section 11(c). Agency agrees to make every reasonable effort
to collect and clear payment from Agency and/or Advertiser on a timely basis. Agency's credit is established on a
client-by-client basis. If Advertiser proceeds have not cleared for the IO,
other advertisers from Agency will not be prohibited from advertising on the Site
due to such non-clearance if such other advertisers' credit is not in question.
Upon request, Agency will make available to Media Company
written confirmation of the relationship between Agency and Advertiser. This
confirmation should include, for example, Advertiser's acknowledgement that
Agency is its agent and is authorized to act on its behalf in connection with
the IO and these Terms. In addition, upon the request of Media Company, Agency
will confirm whether Advertiser has paid to Agency in advance, funds sufficient
enough to make payments pursuant to the IO.
If Advertiser's or Agency's credit is or becomes impaired, Media
Company may require payment in advance.

5. REPORTING

Media Company Reporting. Media Company will make reporting
available, either electronically or in writing, as specified on the IO. Once
Media Company has provided the online or electronic report, it agrees that
Agency and Advertiser are entitled to reasonably rely on it, subject to
provision of Media Company's invoice for such period.
Reporting Failure. If Agency informs Media Company that Media
Company has delivered an incomplete or inaccurate report, or no report at all,
Media Company will cure such failure within five (5) business days of receipt
of such notice.

6. CANCELLATION AND TERMINATION

Without Cause. Unless
designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or
any portion thereof, by providing written notice of cancellation no less than
thirty (30) days’ prior to the start date of the campaign, provided, however,
that Advertiser will remain liable to Media Company for amounts due for any
custom content or development (“Custom Material”) provided to Advertiser or
completed by Media Company or its third-party vendor prior to the effective
date of termination. Advertiser will pay for such Custom Material within 30
days from receiving an invoice therefor. A notice of cancellation delivered
fewer than thirty (30) days prior to the start date of the campaign will be
void and of no effect, and Advertiser and Agency (if any) will remain fully
liable for payment all Deliverables to be provided under the IO.
For Cause. Either Media
Company or Agency may terminate an IO at any time if the other party is in
material breach of its obligations hereunder, which breach is not cured within
10 days after receipt of written notice thereof from the non-breaching party,
except as otherwise stated in these Terms with regard to specific breaches.
Additionally, if Agency or Advertiser breaches its obligations by violating the
same Policy three times (and such Policy was provided to Agency or Advertiser)
and receives timely notice of each such breach, even if Agency or Advertiser
cures such breaches, then Media Company may terminate the IO or placements
associated with such breach upon written notice. If Agency or Advertiser does
not cure a violation of a Policy within the applicable 10-day cure period after
written notice, where such Policy had been provided by Media Company to Agency,
then Media Company may terminate the IO and/or placements associated with such
breach upon written notice.

7. FORCE MAJEURE

Excluding payment obligations, neither Agency nor Media Company
will be liable for delay or default in the performance of its respective
obligations under these Terms if such delay or default is caused by conditions
beyond its reasonable control, including, but not limited to, fire, flood,
accident, earthquakes, telecommunications line failures, electrical outages,
network failures, acts of God, or labor disputes (“Force Majeure event”). If
Media Company suffers such a delay or default, Media Company will make
reasonable efforts within five (5) business days to recommend a substitute
transmission for the Ad or time period for the transmission. If no such
substitute time period or makegood is reasonably acceptable to Agency, Media
Company will allow Agency a pro rata reduction in the space, time, and/or
program charges hereunder in the amount of money assigned to the space, time,
and/or program charges at time of purchase. In addition, Agency will have the
benefit of the same discounts that would have been earned had there been no
default or delay.
Related to Payment. If
Agency's ability to transfer funds to third parties has been materially
negatively impacted by an event beyond the Agency's reasonable control,
including, but not limited to, failure of banking clearing systems or a state
of emergency, then Agency will make every reasonable effort to make payments on
a timely basis to Media Company, but any delays caused by such condition will
be excused for the duration of such condition. Subject to the foregoing, such
excuse for delay will not in any way relieve Agency from any of its obligations
as to the amount of money that would have been due and paid without such
condition.
If a Force Majeure event has continued for five (5) business
days, Media Company and/or Agency has the right to cancel the remainder of the
IO without penalty.

8. AD MATERIALS

Agency will submit Advertising Materials pursuant to Section
3(c) in accordance with Media Company's then- existing Policies.
Late Creative. If
Advertising Materials are not received by the IO start date, Media Company will
begin to charge the Advertiser on the IO start date on a pro rata basis based
on the full IO, excluding portions consisting of performance-based, non-
guaranteed inventory, for each full day the Advertising Materials are not
received. If Advertising Materials are late based on the Policies, Media
Company is not required to guarantee full delivery of the IO. Media Company and
Agency will negotiate a resolution if Media Company has received all required
Advertising Materials in accordance with Section 8(a) but fails to commence a
campaign on the IO start date.
Media Company reserves the right within its discretion to reject
or remove from its Site any Ads for which the Advertising Materials, software
code associated with the Advertising Materials (e.g. pixels, tags, JavaScript),
or the website to which the Ad is linked do not comply with its Policies, or
that in Media Company's sole reasonable judgment, do not comply with any
applicable law, regulation, or other judicial or administrative order. In
addition, Media Company reserves the right within its discretion to reject or
remove from its Site any Ads for which the Advertising Materials or the website
to which the Ad is linked are, or may tend to bring, disparagement, ridicule,
or scorn upon Media Company or any of its Affiliates (as defined below),
provided that if Media Company has reviewed and approved such Ads prior to
their use on the Site, Media Company will not immediately remove such Ads
before making commercially reasonable efforts to acquire mutually acceptable
alternative Advertising Materials from Agency.
Damaged Creative. If
Advertising Materials provided by Agency are damaged, not to Media Company's
specifications, or otherwise unacceptable, Media Company will use commercially
reasonable efforts to notify Agency within two (2) business days of its receipt
of such Advertising Materials.
No Modification. Media
Company will not edit or modify the submitted Ads in any way, including, but
not limited to, resizing the Ad, without Agency's approval. Media Company will
use all Ads in strict compliance with these Terms and any written instructions
provided on the IO.
Ad Tags. When applicable,
Third-party Ad Server tags will be implemented so that they are functional in
all aspects.
Trademark Usage. Media Company, on the one hand, and Agency and
Advertiser, on the other, will not use the other's trade name, trademarks,
logos, or Ads in any public announcement (including, but not limited to, in any
press release) regarding the existence or content of these Terms or an IO
without the other's prior written approval.

9. INDEMNIFICATION

By Media Company. Media
Company will defend, indemnify, and hold harmless Agency, Advertiser, and each
of its Affiliates and Representatives from damages, liabilities, costs, and
expenses (including reasonable attorneys' fees) (collectively, “Losses”)
resulting from any claim, judgment, or proceeding (collectively, “Claims”)
brought by a Third-party and resulting from (i) Media Company's alleged breach
of Section 13 or of Media Company's representations and warranties in Section
13(a), (ii) Media Company's display or delivery of any Ad in breach of Section
3(a) or Section 8(e), or (iii) Advertising Materials provided by Media Company
for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or
Representatives) (“Media Company Advertising Materials”) that: (A) violate any
applicable law, regulation, judicial or administrative action, or the right of
a Third-party; or (B) are defamatory or obscene. Notwithstanding the foregoing,
Media Company will not be liable for any Losses resulting from Claims to the
extent that such Claims result from (1) Media Company's customization of Ads or
Advertising Materials based upon detailed specifications, materials, or
information provided by the Advertiser, Agency, and/or each of its Affiliates
and/or Representatives, or (2) a user viewing an Ad outside of the targeting
set forth on the IO, which viewing is not directly attributable to Media
Company's serving such Ad in breach of such targeting.
By Advertiser. Advertiser
will defend, indemnify, and hold harmless Media Company and each of its
Affiliates and Representatives from Losses resulting from any Claims brought by
a Third-party resulting from (i) Advertiser's alleged breach of Section 11 or
of Advertiser's representations and warranties in Section 13(a), (ii)
Advertiser's violation of Policies (to the extent the terms of such Policies
have been provided (e.g., by making such Policies available by providing a URL)
via email or other affirmative means, to Agency or Advertiser at least 14 days
prior to the violation giving rise to the Claim), or (iii) the content or
subject matter of any Ad or Advertising Materials to the extent used by Media
Company in accordance with these Terms or an IO.
By Agency. Agency
represents and warrants that it has the authority as Advertiser's agent to bind
Advertiser to these Terms and each IO, and that all of Agency's actions related
to these Terms and each IO will be within the scope of such agency. Agency will
defend, indemnify, and hold harmless Media Company and each of its Affiliates
and Representatives from Losses resulting from (i) Agency's alleged breach of
the foregoing sentence, or (ii) Claims brought by a Third-party alleging that
Agency has breached its express, Agency-specific obligations under Section 11.
The indemnified party(s) will promptly notify the indemnifying
party of all Claims of which it becomes aware (provided that a failure or delay
in providing such notice will not relieve the indemnifying party's obligations
except to the extent such party is prejudiced by such failure or delay), and
will: (i) provide reasonable cooperation to the indemnifying party at the
indemnifying party's expense in connection with the defense or settlement of
all Claims; and (ii) be entitled to participate at its own expense in the
defense of all Claims. The indemnified party(s) agrees that the indemnifying
party will have sole and exclusive control over the defense and settlement of
all Claims; provided, however, the indemnifying party will not acquiesce to any
judgment or enter into any settlement, either of which imposes any obligation
or liability on an indemnified party(s) without its prior written consent.

10. LIMITATION OF LIABILITY

Excluding Agency's, Advertiser's, and Media Company's respective obligations under Section 9, damages that result from a breach of Section 11, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.

11. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS

Definitions and Obligations. “Confidential Information” will
include (i) all information marked as “Confidential,” “Proprietary,” or similar
legend by the disclosing party (“Discloser”) when given to the receiving party
(“Recipient”); and (ii) information and data provided by the Discloser, which
under the circumstances surrounding the disclosure should be reasonably deemed
confidential or proprietary. Without limiting the foregoing, Discloser and
Recipient agree that each Discloser's contribution to IO Details (as defined
below) shall be considered such Discloser's Confidential Information. Recipient
will protect Confidential Information in the same manner that it protects its
own information of a similar nature, but in no event with less than reasonable
care. Recipient shall not disclose Confidential Information to anyone except an
employee, agent, Affiliate, or third-party who has a need to know same, and who
is bound by confidentiality and non-use obligations at least as protective of
Confidential Information as are those in this section. Recipient will not use
Discloser's Confidential Information other than as provided for on the IO.
Notwithstanding anything contained herein to the contrary, the
term “Confidential Information” will not include information which: (i) was
previously known to Recipient; (ii) was or becomes generally available to the
public through no fault of Recipient; (iii) was rightfully in Recipient's
possession free of any obligation of confidentiality at, or prior to, the time
it was communicated to Recipient by Discloser; (iv) was developed by employees
or agents of Recipient independently of, and without reference to, Confidential
Information; or (v) was communicated by Discloser to an unaffiliated third-party
free of any obligation of confidentiality. Notwithstanding the foregoing, the
Recipient may disclose Confidential Information of the Discloser in response to
a valid order by a court or other governmental body, as otherwise required by
law or the rules of any applicable securities exchange, or as necessary to
establish the rights of either party under these Terms; provided, however, that
both Discloser and Recipient will stipulate to any orders necessary to protect
such information from public disclosure.

c. Additional Definitions. As used herein the following terms shall have the following definitions:

“Aggregated” means a form in which data gathered under an IO is
combined with data from numerous campaigns of numerous Advertisers and
precludes identification, directly or indirectly, of an Advertiser.
1. “Collected Data” consists of IO Details, Performance Data, and
  Site Data.
2. “IO Details” are details set forth on the IO but only when
  expressly associated with the applicable Discloser, including, but not limited
  to, Ad pricing information, Ad description, Ad placement information, and Ad
  targeting information.
3. “Performance Data” is data regarding a campaign gathered during
  delivery of an Ad pursuant to the IO (e.g., number of impressions,
  interactions, and header information), but excluding Site Data or IO Details.
4. “Repurposing” means retargeting a user or appending data to a
  non-public profile regarding a user for purposes other than performance of the
  IO.
5. “Site Data” is any data that is (A) preexisting Media Company
  data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO
  during delivery of an Ad that identifies or allows identification of Media
  Company, Media Company's Site, brand, content, context, or users as such; or
  (C) entered by users on any Media Company Site other than User Volunteered Data.
6. “User Volunteered Data” is personally identifiable information
  collected from individual users by Media Company during delivery of an Ad
  pursuant to the IO, but only where it is expressly disclosed to such individual
  users that such collection is solely on behalf of Advertiser.

d. Use of Collected Data.

Unless otherwise authorized by Media Company, Advertiser will
not: (A) use Collected Data for Repurposing; provided, however, that
Performance Data may be used for Repurposing so long as it is not joined with
any IO Details or Site Data; (B) disclose IO Details of Media Company or Site
Data to any Affiliate or Third-party except as set forth in Section 11(d)(iii).
- Unless otherwise authorized by Agency or Advertiser, Media
  Company will not: (A) use or disclose IO Details of Advertiser, Performance
  Data, or a user's recorded view or click of an Ad, each of the foregoing on a
  non-Aggregated basis, for Repurposing or any purpose other than performing
  under the IO, compensating data providers in a way that precludes
  identification of the Advertiser, or internal reporting or internal analysis;
  or (B) use or disclose any User Volunteered Data in any manner other than in
  performing under the IO.
- Advertiser, Agency, and Media Company (each a “Transferring
  Party”) will require any Third-party or Affiliate used by the Transferring
  Party in performance of the IO on behalf of such Transferring Party to be bound
  by confidentiality and non-use obligations at least as restrictive as those on
  the Transferring Party, unless otherwise set forth in the IO.

e. User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser's posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties.

f. Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.

g. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.

h. Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section 11(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.

12. THIRD-PARTY AD SERVING AND TRACKING (Applicable if Third-party Ad Server is used)

Ad Serving and Tracking. Media Company will track delivery
through its ad server and, provided that, Media Company has approved in writing
a Third-party Ad Server to run on its properties, Agency will track delivery
through such Third-party Ad Server. Agency may not substitute the specified Third-party
Ad Server without Media Company's prior written consent. For all purposes of
this Agreement, Media Company tracking will be controlling.
Ad Server Reporting Access. As available, Media Company will provide
Agency with online or automated access to relevant and non-proprietary
statistics from the ad server within one (1) business day upon request. If such
online or automated reporting is not available, Media Company will provide
placement-level activity reports in a timely manner.

13. MISCELLANEOUS

Necessary Rights. Media
Company represents and warrants that Media Company has all necessary permits,
licenses, and clearances to sell the Deliverables specified on the IO subject
to these Terms. Advertiser represents and warrants that Advertiser has all
necessary licenses and clearances to use the content contained in the Ads and
Advertising Materials as specified on the IO and subject to these Terms,
including any applicable Policies.
Neither Agency nor Advertiser may resell, assign, or transfer
any of its rights or obligations hereunder, and any attempt to resell, assign,
or transfer such rights or obligations without Media Company's prior written
approval will be null and void. All terms and conditions in these Terms and
each IO will be binding upon and inure to the benefit of the parties hereto and
their respective permitted transferees, successors, and assigns.
Entire Agreement. Each IO
(including the Terms) will constitute the entire agreement of the parties with
respect to the subject matter thereof and supersede all previous
communications, representations, understandings, and agreements, either oral or
written, between the parties with respect to the subject matter of the IO. The
IO may be executed in counterparts, each of which will be an original, and all
of which together will constitute one and the same document.
Conflicts; Governing Law; Arbitration. In the event of any inconsistency between the
terms of an IO and these Terms, the terms of the IO will prevail. All IOs will
be governed by the laws of the State of California. Media Company, Advertiser,
and Agency (on behalf of itself and Advertiser) agree that any claims, arising
in connection with the IO (including these Terms) or the alleged breach thereof
shall be resolved by one arbitrator, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association then in effect in San
Francisco, California and shall be held in the San Francisco Bay Area. Judgment
upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. Costs of AAA will be shared equally by both Parties. No
modification of these Terms will be binding unless in writing and signed by
both parties.
If any provision herein is held to be unenforceable, the
remaining provisions will remain in full force and effect. All rights and
remedies hereunder are cumulative.
Any notice required to be delivered hereunder will be deemed
delivered three days after deposit, postage paid, in U.S. mail, return receipt
requested, one business day if sent by overnight courier service, and
immediately if sent electronically or by fax. All notices to Media Company and
Agency will be sent to the contact as noted on the IO with a copy to the Legal
Department. All notices to Advertiser will be sent to the address specified on
the IO.
Sections 4, 9, 10, 11, and 13 will survive termination or
expiration of these Terms, and Section IV will survive for 30 days after the
termination or expiration of these Terms. In addition, each party will promptly
return or destroy the other party's Confidential Information upon written
request and remove Advertising Materials and Ad tags upon termination of these
Terms.
Section or paragraph headings used in these Terms are for
reference purposes only and should not be used in the interpretation hereof.