These terms of service, together with any order (“Order”) signed by the Parties and incorporating these terms of service by reference, constitute a legally binding agreement (the “Agreement”) between you (“CPG”), a consumer packaged goods company that creates and distributes digital coupons for its products (“Coupons”), and Flipp Corporation (“Flipp”) who operates, among other things, the Platform and the Distribution Network (as defined herein).

In consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

1. Construction

1.1 Construction and Order of Precedence: This Agreement consists of: (i) this document, (ii) any document that incorporates the terms and conditions of this document by reference, (iii) any policies, procedures, or terms and conditions included or referenced in this document, and (iv) all schedules, appendices and/or exhibits attached hereto, all of which forms a part of this Agreement. To the extent there is a conflict or inconsistency between any of the documents forming part of this Agreement, the conflict or inconsistency shall be resolved in the order as presented in this Section 1.

1. Schedules, appendices and/or exhibits, which are incorporated by reference:

Schedule	Title
Schedule A	Flipp Services

1.2 Definitions

“Affiliate” means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity.  For purposes of this definition, ownership means control of more than a 50% interest in an entity.

 “Business Day” means every day except Saturdays, Sundays and statutory holidays in the Province of Ontario, during business hours between 9AM and 5PM EST/EDT.

 “Coupons” has the meaning set out in the preamble, and for greater certainty includes any terms or rules regarding Coupon redemption provided to Flipp by CPG.

“CPG Marks” means any names, logos, trade dress, designs, marks, designs, or other trademarks or domain names/URLs owned by CPG or licensed to CPG from a third party.

“CPG Materials” means any material provided or made available to Flipp by CPG for the purposes of Flipp providing the Services. For avoidance of doubt, CPG Materials shall include the Coupons, CPG Marks, and CPG’s Confidential Information.

“Distribution Partner” means a third party entity with which Flipp has a contractual right to distribute Coupons.

“Distribution Network” means the channels through which Flipp distributes Coupons to End-Users, including (i) properties owned and operated by Flipp or owned and operated by a Distribution Partner, or to which Distribution Partner has the necessary rights, and (ii) Retailer Properties.

“End-Users” means individuals who access the Distribution Network.

“Flipp App” means the Flipp™ mobile application.

“Flipp Materials” means any material provided or made available to CPG by Flipp for the purposes of providing the Services. For avoidance of doubt, Flipp Materials shall include the Platform and Flipp’s Confidential Information.

“Flipp CPG Interface” refers to the account administration section of the Platform. Flipp CPG Interface is located at the URL provided by Flipp, or such other URLs as Flipp may provide from time to time. In addition to the terms in this Agreement, use of Flipp CPG Interface is subject to the terms and conditions set out in therein.

“Intellectual Property Rights” means all title, interest or right or other protection (whether by statute, equity, common law or otherwise) existing from time to time in a specific jurisdiction, whether by virtue of application, registration or otherwise, under any patent law or other invention or discovery including pending applications therefor and patents which may be issued from current applications (including divisions, reissues, renewals, re-examinations, continuations, continuation-in-part and extensions), copyright law, industrial design, integrated circuit, moral rights, Confidential Information (including trade secrets), trademark, trade name, brand name, domain name or other similar applicable laws and includes legislation related thereto and including judicial decisions under common law or equity.

 “Material Default” shall be deemed to have occurred if either Party: (i) materially fails to perform or comply with this Agreement, and fails to remedy such failure within thirty (30) days following written notice; (ii) goes into liquidation, receivership or administration or becomes bankrupt; (iii) makes any arrangement for the benefit of its creditors; (iv) admits its inability to pay its debts as they mature; or (v) has a receiver appointed for any of its assets.

“Parties” shall mean Flipp and CPG and “Party” shall mean either one of them.

“Pass-Through Costs” means the costs charged (i) to Flipp by third parties in connection with Flipp providing Rebate Validation to CPG, or (ii) by CPG’s Representatives in connection with receiving payment of the Matched Rebates. For clarity, Pass-Through Costs include 3P Payment Fees.

“Platform” means Flipp’s proprietary dynamic coupon and circular platform that brings the next-generation of digital coupons and digital circulars to End-Users. The platform shall include all frond-end, back-end and other related technologies, including all updates and enhancements to same, for digitizing, processing, displaying, and distributing digital coupons and digital circulars to End-Users. The platform shall also include all methods, processes, data, information, wrappers and other business property related to and generated from the platform; except that, the Platform shall not include CPG Materials. For avoidance of doubt, the Platform shall include the Flipp App and Flipp CPG Interface.

 “Representative Parties” means, with respect to an entity, its Representatives, its Affiliates and its Affiliates’ Representatives.

“Representatives” means an entity’s employees, directors, officers, legal counsel, financial advisors (including accountants and auditors), agents, and contractors.

“Retailer Properties” means those areas of a retailer’s properties on which Flipp is the technology provider for the showcasing of retailer’s content such as its circular content.

“Services” means the services as described in Section 2.

2. SERVICES

2.1 Flipp Services: During the Term, and subject to the obligations of CPG set out in Schedule A attached hereto, Flipp agrees to provide the services set out therein (“Services”) to CPG.

3. COSTS AND PAYMENT TERMS

3.1 Costs: Except for any applicable Pass-Through Costs, Flipp will provide the Services at no cost to CPG.

3.2 Payment for Coupon Redemptions: At the earlier of (a) the end of the campaign described in the Order; or (b) the end of each month, Flipp will invoice CPG (or a designated Representative of CPG) for the amount of all Matched Rebates and Pass-Through Costs, as set out in greater detail Schedule A. CPG or its designated Representative shall promptly pay the amounts set out in the invoice to Flipp (and in any event shall make such payment within 30 days of receipt of the invoice). For greater certainty, the Estimated Budget (if any) described in the Order is an estimate for planning purposes only; Flipp shall invoice CPG for the full amount of all Matched Rebates and Pass-Through Costs. All such payments shall be electronic payments (EFT/ACH or wire payment) unless otherwise agreed to in writing by Flipp.

3.3 Late Payment. In the event that CPG is late on any payment due pursuant to this Agreement, in addition to any other rights in this Agreement, Flipp reserves the right to suspend the provision of Services and associated obligations. Any late payment shall be subject to an interest of (i) two percent (2%) per month, or (ii) the highest rate allowed by applicable law, whichever is less.

3.4 Taxes:

1. To the extent applicable, CPG shall provide to Flipp a valid direct pay permit or a similar tax exemption certificate (“Tax Exemption Certificate”) for all applicable U.S. taxes, including sales and use taxes, (“Applicable Taxes”) prior to the start date of the campaign described in the Order. Flipp shall then invoice CPG in accordance with this Section without Applicable Taxes and CPG shall be responsible for remitting Applicable Taxes to the proper taxing authorities. CPG shall indemnify and hold harmless Flipp against any claims or assertions by any relevant taxing authority in respect of such Applicable Taxes owed in connection with the Services rendered by Flipp pursuant to this Agreement.
2. In event that CPG does not hold Tax Exemption Certificate in respect of Applicable Taxes, Flipp shall collect and remit all Applicable Taxes with respect to the Services provided to CPG. The Applicable Taxes shall appear in the monthly invoice sent to the CPG according to this Section. CPG agrees to cooperate with Flipp for the collection of all Applicable Taxes, including in respect to changes to the applicable tax law.

4. TERM & TERMINATION

4.1 Term: This Agreement commences on the start date set out in the Order and continues until the end date specified in the Order (the “Term”).

4.2 Termination: This Agreement may be terminated (a) by Flipp without cause by providing the other Party with seven (7) days’ written notice; or (b) by either Party with immediate effect by providing the other Party with written notice in the event such Party has committed a Material Default.

4.3 Survival: Upon termination or expiry of this Agreement, all provisions indicated herein as surviving termination or expiry of this Agreement shall remain in full force and effect. Moreover, termination or expiration of this Agreement pursuant to Section 2 shall not relieve CPG’s obligation to pay Flipp any amounts due under this Agreement.

5. LICENSE GRANTS; RESTRICTIONS

5.1 Service License: During the Term, Flipp grants to CPG and its Representatives a royalty-free, non-exclusive, personal, non-transferable, non-sublicensable right and license to use the Services in accordance with this Agreement.

5.2 Service License Restrictions: CPG or its Affiliates, and their respective Representatives, shall not directly or indirectly: (i) use a Service for the purpose of creating any service or software that performs substantially the same functionality as a Service; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile a Service; (iii) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Services; or (iv) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information it obtains or learns pursuant to this Agreement in violation of any export control or other laws and regulations of Canada, the United States, or any other relevant jurisdiction.

5.3 CPG Materials License: During the Term, CPG grants to Flipp a royalty-free, non-exclusive, personal, non-transferable, non-sublicensable right and license to the CPG Materials as necessary to provide the Services, or as otherwise expressly permitted, under this Agreement. Additionally, Flipp’s Representative Parties shall be permitted to use the CPG Materials as necessary for Flipp to provide the Services contemplated hereunder.

6. PROPRIETARY RIGHTS

6.1 Flipp Ownership: Flipp shall own all right, title and interest (including Intellectual Property Rights) to the Flipp Materials. Except for the limited rights to the Flipp Materials expressly granted to CPG and its Representative Parties in connection with the use of the Services, no other right or permission is granted.

6.2 CPG Ownership: CPG and its Affiliates, as applicable, shall own all right, title and interest (including Intellectual Property Rights) to the CPG Materials. Except for the limited rights to the CPG Materials expressly granted to Flipp and its Representative Parties in connection with the provision of the Services, no other right or permission is granted.

6.3 Feedback: During the provision of the Services, if CPG or its Representative Parties, in its sole discretion, makes any suggestions for changes, modifications or improvements to the Services (“Feedback”), all such Feedback shall be solely owned by Flipp. CPG and its Representatives shall do all that is necessary to assign the ownership of such Feedback to Flipp.

7. INDEMNITIES

7.1 CPG shall indemnify, defend, and save harmless Flipp from and against all losses, damages, costs and expenses (including legal fees and disbursements) (collectively, “Losses”) resulting from any claim, allegation, judgment or proceeding (collectively, “Claims”) (a) brought by a third party in connection with the Coupons or the terms contained therein; or (b) that the CPG Materials provided hereunder for the purposes of Flipp’s provision of the Services infringe on the Intellectual Property Rights of a third party.

8. CONFIDENTIALITY

8.1 “Confidential Information” means any non-public information disclosed to a Party (“Receiving Party”), or its Representative Parties, in connection with or related to the provision or use of the Services during the Term, by the other Party or its Representative Parties (“Disclosing Party”), either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, that is marked or identified as “Confidential Information”, “Confidential” or “Proprietary”, or with similar designations, or would be reasonably considered confidential and/or proprietary. However, Confidential Information shall not include information that (i) is or subsequently becomes publicly available without breach of any obligation owed to Disclosing Party; (ii) became known to Receiving Party or its Representative Parties, without confidentiality restrictions, prior to Disclosing Party’s disclosure of such information to Receiving Party or its Representative Parties pursuant to the terms of this Agreement, as shown by Receiving Party’s records; (iii) became known to Receiving Party or its Representative Parties from a source other than Disclosing Party other than by the breach of a confidentiality agreement or a contractual, legal or fiduciary obligation; or (iv) is independently developed by Receiving Party without any use of or reference to the Confidential Information. It will be understood that the burden of proving that information is not Confidential Information rests with the Receiving Party.

8.2 Receiving Party, and its Representative Parties who have been provided Confidential Information in accordance with this Section 8, shall:

1. Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information, except as expressly provided in Sections 3 and 8.4 of this Agreement or otherwise expressly permitted by Disclosing Party in writing;
2. Refrain from using or attempting to use any Confidential Information except as necessary in connection with the purpose for which such Confidential Information is disclosed pursuant to this Agreement; and
3. Take reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information, but not less than reasonable care, to keep confidential the Confidential Information.

8.3 Receiving Party may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Receiving Party gives Disclosing Party reasonable written notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, or if Disclosing Party waives compliance with the provisions hereof, Receiving Party agrees to disclose or furnish only that portion of the Confidential Information that Receiving Party is advised by written opinion of counsel is legally required to be disclosed or furnished and, to the extent reasonably possible in the circumstances, Receiving Party agrees to use best efforts to obtain written assurance from the applicable governmental authority that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.

8.4 Receiving Party may disclose Confidential Information only to its Representative Parties on a need-to-know basis for the sole purpose of performing or using the Services and such Representative Parties are bound by an agreement of confidentiality and non-use obligations having terms similar to those in this Section 8. Receiving Party shall be responsible for and liable to Disclosing Party for any breach of this Section 8 by its Representative Parties.

8.5 All Confidential Information shall at all times remain the personal property of the Disclosing Party and Receiving Party shall, at Disclosing Party’s request, return all Confidential Information, or at Receiving Party’s option, certify destruction of same within ten (10) Business Days of the request.

8.6 Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information may give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Accordingly, Disclosing Party may seek injunctive relief to prevent the unauthorized use or disclosure of the Confidential Information in addition to any other legal remedies which may be available to it, and Receiving Party hereby consents to the obtaining such injunctive relief. Receiving Party shall advise the Disclosing Party promptly in writing of any unauthorized disclosure or use of Confidential Information.

9. LIMITATION OF LIABILITIES; DISCLAIMER

9.1 IN THIS SECTION 9, THE TERM “PARTY” SHALL INCLUDE ITS REPRESENTATIVE PARTIES.

9.2 EXCEPT FOR CPG’S INDEMNITY OBLIGATIONS IN SECTION 1, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR REVENUE RELATED IN ANY WAY TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY SUCH DAMAGES CLAIM IS BASED, EVEN UPON THE FAULT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), BREACH OF CONTRACT, STATUTE, REGULATION, OR ANY OTHER THEORY OF LAW OR BREACH OF WARRANTY BY, OR STRICT LIABILITY OF, THAT PARTY. THIS EXCLUSION APPLIES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF ANY AVAILABLE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. MOREOVER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS BY REASON OF ANY CAUSE OR EVENT BEYOND THE REASONABLE CONTROL OF THE PARTY THAT COULD NOT HAVE BEEN REASONABLY FORESEEN AND PREVENTED BY MEANS REASONABLY AVAILABLE TO IT.

9.3 THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE THE ONLY REPRESENTATIONS AND WARRANTIES MADE BY EACH PARTY. EACH PARTY EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL OTHER REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, AND FREEDOM FROM INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FLIPP DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

9.4 FLIPP’S TOTAL LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ON A PER CLAIM BASIS OR AGGREGATE BASIS, SHALL BE STRICTLY LIMITED TO $10,000.

10. GENERAL PROVISIONS

10.1 Press Release: Neither Party may issue a press release to announce the relationship established by this Agreement without the written consent of the other Party.

10.2 Entire Agreement: This Agreement constitutes the entire Agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between CPG and Flipp.  The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties.  There are no other verbal agreements, representations, warranties, undertakings or other agreements between the Parties.  This Agreement will not be modified by any written agreement dated after the Effective Date unless signed by both Parties by their duly authorized representatives.  Any previous agreements between CPG and Flipp for Services are terminated and of no further force, except for the provisions indicated therein as surviving termination or expiration.

10.3 Severability: If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the Parties hereto and has like economic effect.

10.4 No Assignment: Neither Party may assign or otherwise transfer any part of this Agreement without the prior written consent of the other Party. Any assignment or attempted assignment by either Party without the other Party’s written consent shall be null and void. Notwithstanding the foregoing, without securing such prior consent, either Party shall have the right to assign this Agreement and the obligations hereunder to any Affiliate or to any successor of such Party by way of merger, consolidation, reorganization or in connection with the acquisition of at least a majority of the business and assets of the assigning Party, provided that:  (a) the assigning Party provides the other Party with written notice when such transaction becomes public; (b) the successor or assignee agrees in writing to be bound by the obligations set forth herein; and (c) the assigning Party is not in material breach or default of this Agreement at the time of the assignment; and (d) in the case of an assignment by CPG, the assignee is not a Flipp competitor.

10.5 Third Parties: Except as expressly set forth herein, nothing contained in this Agreement is intended to confer upon any person not a party hereto any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third-party beneficiary under this Agreement.

10.6 Relationship: This Agreement shall not create a relationship of partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. The Parties shall only be considered as independent contractors.

10.7 No Waiver: No provision of this Agreement may be waived, except in writing executed by each of the Parties.  No failure to exercise, or delay in the exercise of, a Party’s rights under this Agreement will constitute a waiver of such rights.  No waiver of a provision of this Agreement will constitute a waiver of the same or any other provision of this Agreement other than as specifically set forth in such waiver.

10.8 Governing Law: This Agreement shall be governed and construed in accordance with the laws of the state of Delaware and the federal laws of the United States applicable therein, excluding the application of any rule or principle of conflict of law that might otherwise refer construction, interpretation, or the resolution of any dispute to the laws of another jurisdiction. Where any dispute arises from this Agreement, including, without limitation, a breach of this Agreement, both Parties agree not to bring any legal action against the other Party in any jurisdiction except in the state of Delaware. However, the foregoing shall not prevent either Party from seeking equitable relief or enforcing a judgment in another jurisdiction.

10.9 Survival: Sections 4 (Taxes), 6 (Proprietary Rights), 7 (Indemnities), 8 (Confidentiality), 9 (Limitation of Liability), and 10 (General Provisions) shall survive and remain in full force and effect following any termination or expiration of this Agreement.

Schedule A

Flipp Services

1. Coupons

CPG agrees to arrange the provision of the necessary Coupons, along with the associated rules and terms of redemption (“Coupon Rules”), to Flipp in a form and timeline agreed between the Parties.

2. Digitization and Distribution of Coupons

Upon receipt of such Coupons and Coupon Rules in the form and timeline agreed between the Parties, Flipp will convert the Coupons into a form compatible with the Platform and the Distribution Network. Flipp agrees to make such Coupons available on the Distribution Network. CPG understands that integration of Coupons into retailers’ content is subject to approval by the applicable retailer.

3. Transaction Processing

Flipp supports the validation of redemptions of Coupons at certain retailers using receipts submitted by an End-User or transaction information provided by such retailer (such supported retailers being referred to as “Supported Retailers”, and receipts or transaction information referred to as “Records”). Flipp will use commercially reasonable efforts to match the Coupon(s) using the Records for the Supported Retailers (“Rebate Validation”). If Flipp finds a match or matches, the discount amount of the Coupon(s) will be credited to the End-User’s Flipp account (“Matched Rebates”) and amounts for Matched Rebates shall become due as per Section 3.2 of the Agreement.

Flipp will aggregate these Matched Rebates and any third-party fees (e.g. PayPal™ or other similar online service account) associated with paying out these Matched Rebates without any mark-up (“3P Payment Fees”) and invoice (which, for greater certainty, may take the form of a file or other report) such amounts to CPG or its designated Representative in accordance with Section 3.2 of the Agreement.

Once Flipp receives the payments from CPG or its designated Representative, the payment of the Matched Rebates to the End-Users will be the obligation of Flipp and such Matched Rebates will become available for payout to the applicable End-Users. Once the End-User requests payment of the Matched Rebates, Flipp will make the payment of the Matched Rebates by: (a) sending money in the amount of the Matched Rebates to the End-User’s PayPal™ (or similar online service) account; or (b) such other payment mechanism as may be instituted by Flipp, acting reasonably.