Master Terms & Conditions

These Figg Terms and Conditions (this “Agreement”) govern the insertion order or other written instrument that incorporates this Agreement (the “IO”) for the provision of services by Figg, Inc. (“Figg”) to the merchant company or brand set forth in the IO (“Merchant”). By signing the IO, Figg and Merchant (each, a “Party” and collectively, the “Parties”) agree to the terms and conditions set forth below.

  1.  Engagement:
    1. Figg agrees to use its Technology (as defined in Section 6.1.1., below) and platform (including software, servers, website(s), and associated user interface) (collectively, the “Figg Platform”) to perform the following services:
    2.  Figg will generate card-linked offers for the Merchant (“Offers”), according to the terms set out in the IO, and track Qualified Transactions attributed to the Offer based on consumers completing a purchase of goods or services using the payment device linked to the Offer, and in accordance with, the terms and conditions of the Offer (each, a “Qualified Transaction“).  References to “payment devices”: (a) will be interpreted broadly; (b) are not exclusive to physical payment cards; and (c) include physical, virtual and digital payment methods and accounts.  Figg will feature the Offers in promotional or marketing campaigns (the “Campaigns”) enabled by the Figg Platform to allow consumers to link Offers to a payment device in order to earn the Reward (as defined in Section 1.1.3., below) as described in the Offer terms and conditions. During the Campaigns, Figg will distribute the Offers through one or more third-party publishers (collectively, the “Publishers”) to promote Merchant or the Offers to the Publishers’ customers. Figg may determine at its discretion which Publishers to use for the Campaigns except to the extent the terms of the IO state otherwise.
    3.  Figg will identify Qualified Transactions under the terms of the Offer by matching transaction data with the terms and conditions of the Offer as defined by Merchant in the IO (“Transaction Matching”). Publishers with consumer transaction data (e.g., financial institutions) may share Qualified Transaction data (including but not limited to the date and time, purchase amount, last 4 digits of card, city / state / zip code, and payment card type) with Figg for purposes of Figg reporting to and billing Merchant. In order to distribute Offers to other Publishers, Figg will obtain the transaction data it needs to operate the Campaigns from MasterCard Incorporated, Visa U.S.A. Inc., American Express Company, and other payment processors engaged by Figg and/or the Publishers that are authorized to collect, process, or settle payment card transactions (collectively, “Card Networks/Processors”). The information released by Card Networks/Processors may include Merchant’s Card Network identification number(s) and Merchant’s payment card transaction information (which may include, without limitation, date, purchase amount, encrypted or tokenized card numbers, and payment card type) (each of the foregoing items individually and collectively, “Merchant Information”). Figg may use third party vendors (each, a “Vendor”) for purposes of this subsection, provided that each Vendor is obligated to maintain the confidentiality of the Merchant Information upon confidentiality terms no less stringent than those in this Agreement.
    4.  Figg and/or its Publishers will be responsible for Transaction Matching and consumer settlement services, and shall arrange for the clearing of the value of the reward earned by a consumer upon completing a Qualified Transaction associated with an Offer (the “Reward”), which, for certain Publishers, will occur only after Merchant makes payment of amounts to be credited to consumers’ accounts for Rewards in the manner described in Section 4.  
  2. Conduct of Campaigns:
      1.  Fulfillment and Conduct of Campaigns. Merchant shall be responsible for: (a) ensuring that the Campaigns, the Offer, the Offer Materials (as defined in Section 2.2., below) and their fulfillment according to the terms of this Agreement and the IO do not violate any applicable laws, rules, regulations or guidelines (including those relating to the consumer purchase of Merchant’s goods or services); and (b) ensuring that no Campaign or related Creative (as defined in Section 6.4.1., below) or Offer infringes, violates, or misappropriates any third party’s Intellectual Property Rights (as defined in Section 6.1., below) or other rights, is defamatory or obscene, or violates any applicable laws, rules, regulations or guidelines, or the rights of privacy or personality of any third party.
      2.  Offer Listing Information. For each Campaign, Merchant shall provide to Figg the web page, links, or other information and materials about the Offer (including applicable Offer terms and conditions to be presented to consumers) that Merchant proposes to make available for presentation to consumers through the Figg Platform (collectively, the “Offer Materials”). Merchant shall deliver such items to Figg via email or other means as mutually determined by the Parties. 
      3.  Publisher and Card Network/Processor Availability. Notwithstanding anything else set forth in this Agreement, Merchant agrees that Figg shall not be responsible for processing Offers with Publishers to the extent such Publishers or any required Card Networks/Processors cease providing support for the Figg Platform.
      4.  End User Terms and Privacy Policy. Merchant acknowledges that the Offers are subject to each Publisher’s respective applicable end user terms of use/service and privacy policy. 
  3.  Targeting and Transaction Qualification:
      1.  Merchant agrees to the process by which Figg targets consumers for offers and tracks Qualified Transaction activity. Targeting is based on Publisher credit and debit purchase data and does not account for transactions paid for using other forms of payment such as cash, checks, money orders, ACH or credit or debit cards outside of Figg’s Publishers. Figg tracks Qualified Transactions and associated amounts billed to merchants strictly and exclusively based on transaction activity on the payment devices within the Figg Platform. Figg cannot and does not qualify transactions based solely on other digital behaviors such as clicks, page views, activity on affiliate marketing links or pixel tracking. Amounts owed by Merchant for Qualified Transactions will be calculated by Figg based solely on transaction activity at Merchant amongst consumers eligible for the Offer and are indisputable. Figg agrees to use commercially reasonable efforts to manage Offer Campaigns to the budget set forth in the applicable IO. Notwithstanding the foregoing, the Parties acknowledge that the total amount due from Merchant in connection with an Offer is determined based on actions taken by consumers once the Offer is made available to them, which cannot be predicted with 100% accuracy; thus, Merchant agrees to pay the total amount owed by Merchant in connection with an Offer, as tracked and invoiced by Figg, even if such amount is in excess of the budget stated in the IO.
  4.  Payment and Payment Liability:
      1.  Fees and Invoices. Merchant agrees to pay to Figg the rate set forth in the IO for each Qualified Transaction completed by a consumer during the Campaign (the “Cost per Qualified Transaction”), a portion of which Figg will use to fund the amount of the Reward offered to the applicable consumer who completed the Qualified Transaction.  Unless otherwise stated in the IO, Merchant acknowledges and agrees that Figg shall have sole discretion to determine the amount of the Reward offered to consumers over the course of a Campaign. Figg will not be liable for any delays in payment of amounts to be credited to consumers’ accounts for Rewards due to the acts or omissions of Merchant.  Invoices will be sent to the billing address as set forth on the IO and will include information reasonably specified by the IO, including the Cost per Qualified Transaction rate used to derive the total amount due from Merchant for Qualified Transactions completed during the period of time covered by the invoice. 
      2.  Payment Terms. Unless otherwise set forth in the IO, Merchant will make payment within thirty (30) days from its receipt of invoice. All payments under this Agreement shall be made in U.S. dollars using the payment method set forth in the IO. 
      3.  Expenses; Taxes. Each Party shall bear its own costs and expenses that may be incurred as a result of its performance of this Agreement. All fees payable hereunder are exclusive of taxes. If any governmental authority levies any taxes with respect to the services performed by Figg hereunder (excluding taxes on its properties or income), it shall invoice Merchant for the amount of such and Merchant shall pay such amount within seven (7) days after receipt of such invoice therefor.
  5.  Reporting:
      1.  Campaign Reporting. Figg shall provide Merchant with Campaign performance reporting, the form, content, and cadence of which shall be mutually determined by the Parties.
      2.  Performance Dashboard. Figg may elect to provide Merchant with online access to additional data insights through a performance dashboard. Figg makes no representations or warranties as to the availability of such data insights and such information is provided strictly on an “as-is” basis.
  6.  Intellectual Property Ownership; Trademark and Creative License:
    1.  Intellectual Property Rights. As used herein, the term “Intellectual Property Rights” means all rights throughout the world, whether existing under statute or at common law or equity now or hereafter in force or recognized, including patents, rights in inventions (whether or not patentable or reduced to practice) and invention disclosures, copyrights, and copyrightable works, moral rights, computer programs, software, operating systems, applications, firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, trade secrets, trademarks, service marks, logos, iconography, trade names, trade dress, domain names, or other intellectual property or proprietary rights (including applications for any of the foregoing rights, and all registrations, extensions, renewals, and re-issuances of, the foregoing) pertaining to a particular piece of tangible or intangible property (where the object of those rights may be referred to as “Intellectual Property”). 
      1.  Each Party exclusively owns and retains all rights, title and interest in any and all of its respective Technology and Confidential Information (defined in Section 7.1, below), and all Intellectual Property Rights therein. “Technology” means any products, services, works of authorship, know-how, information that may be considered trade secret, inventions, research, development, business activities, proprietary methodologies, tools, models, software (including underlying code), algorithms, architecture, implementations, prototypes, designs, proprietary information or data, documentation, or other items of tangible or intangible property.
    2.  Ownership of Figg Intellectual Property. Figg owns all right, title and interest in and to its Intellectual Property, including but not limited to, the Figg Platform and in any other Technology or materials developed by Figg in the performance of the services contemplated in this Agreement.  Merchant warrants and represents that it will not: (a) reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of Figg’s Intellectual Property, or any aspect or portion thereof, including source code or algorithms; (b) use any information obtained through hyperlinks, or any campaign reporting, to establish the personal identity of any financial-institution customer participating (or attempting to participate) in an Offer or Campaign; or (c) identify, target, or analyze any individual or group as a customer of any given financial institution for any purpose, including, without limitation, to create a group or segment composed exclusively of customers of a certain financial institution.
    3.  No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Merchants or any third party any Intellectual Property Rights, license or other right, title, or interest in and to the Figg Platform.
    4.  Trademark and Creative Licenses:
      1.  License Grants. During the term of the applicable Campaigns on the Figg Platform, or during the term of the IO, Merchant hereby grants to Figg, a non-exclusive,  non-transferable, sublicensable (to Figg Publishers to the extent necessary to perform Figg’s obligation hereunder), irrevocable, royalty-free right and license in the United States: (a) to use, copy, display, modify, reproduce, distribute and perform any Offer Materials and other content, creative works, advertisements, or marketing materials for use in connection with the Campaigns (collectively, the “Creative”); (b) to display, promote, advertise, and use Merchant’s trademarks, service marks, trade names, logos, iconography and/or product names (in both text and stylized forms) for use in connection with the Campaigns (collectively “Merchant Marks”); and (c) to display, promote, advertise and use Merchant Marks in other marketing and promotional materials on the Figg Platform and/or the work performed by Figg on Merchant’s behalf (the license grant in section 6.4.1.(c) above shall extend to Affiliates (as defined in Section 7.4, below) of Figg). 
      2.  Ownership of Merchant Marks; Goodwill; Quality and Creative Placements. Figg acknowledges and agrees that, as between the Parties, Merchant owns and will retain all right, title, and interest in and to its Merchant Marks and all use by Figg of the Merchant Marks hereunder, and all goodwill accruing therefrom, will inure solely to the benefit of the Merchant and will not create in Figg, nor will Figg represent that it has, any right, title, or interest in or to the Merchant Marks other than the license grant expressly set forth in this Section 6.4. Figg agrees to use Merchant Marks in accordance with Merchant’s brand guidelines, as specified by Merchant to Figg. Figg will comply (and will cause its Publishers to comply) with Merchant’s trademark usage standards made available to Figg with respect to such use. Notwithstanding the foregoing, Figg may decline to use any Creative and may remove any Creative from the Figg Platform at any time in its discretion. Except to the extent conditioned by this Agreement or the IO, Figg may exercise discretion in making Offers and Creatives available and in their placement and positioning to consumers across Publishers.
      3.  Restriction on Figg Trademark Use. Merchant may not use any name, trademark or proprietary indicia of Figg or its Affiliates as a reference, or utilize any name, trademark or proprietary indicia of Figg or its Affiliates without the prior written consent of Figg, such consent to be granted or withheld in the sole and absolute discretion of Figg.
  7.  Confidentiality; Data Rights; Privacy and Security:
    1.  Confidential Information. Each Party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the other Party which is of a confidential or proprietary nature (“Confidential Information”). Confidential Information includes, but is not limited to: (a) a Party’s (i) business plans, strategies, forecasts, projects and analyses, (ii) hardware and system designs, architectures, computer software, data, information, databases, protocols, reference implementation and documentation, functional and interface specifications, and future product releases, (iii) trade secrets, copyrights, non-public know-how, inventions, patents and patent applications, techniques, processes, schematics, software source documents and other Intellectual Property or proprietary rights; (iv) pricing and discount schedules, financial information and sales and marketing plans; and (v) personnel, business partner and supplier information; (b) data and information about a Party’s customers (current, former or prospective, including mutual customers); (c) nonpublic written or oral information that: (1) a Party provides to its regulators in connection with their examinations and other supervisory and enforcement activities, or (2) is conveyed by such regulators to such Party in the exercise of their examinations and other supervisory and enforcement activities, including any nonpublic confidential supervisory information (as described in applicable law) of any governmental body having regulatory authority over such Party; (d) communications from or on behalf of a customer indicating a complaint with respect to a Party’s products, services, or platform; (e) the terms of this Agreement and any IO; and (f) any Intellectual Property Rights in any of the foregoing. 
    2.  Use.  The Party receiving Confidential Information of the other Party shall at all times, both during the term of this Agreement and at all times thereafter, keep and hold such Confidential Information in the strictest confidence, and shall not use such Confidential Information for any purpose, other than as may be reasonably necessary for the performance of its duties or exercise of its rights under this Agreement (the “Permitted Purpose”), without the disclosing Party’s prior written consent. The receiving Party shall not disclose any such Confidential Information to any third party, except as expressly permitted under this Agreement or with the disclosing Party’s prior written consent.  Neither Party will use or reference the other Party’s Confidential Information, or any aggregate data or performance data derived from the other Party’s Confidential Information or access to the other Party’s channels, or statistics regarding the other Party or its customers, whether or not any of the foregoing is combined with its own Confidential Information or other data or information of such Party, for any purpose that is not expressly authorized under this Agreement.  Neither Party will (without the written authorization of the other Party) attempt to: (a) identify or re-identify any person or entity whose information may be included in any de-identified or aggregated information or Confidential Information that it receives from or on behalf of the other Party in connection with this Agreement; or (b) decrypt or unmask any encrypted or masked information or data that such Party receives from or on behalf of the other Party in connection with this Agreement. The receiving Party shall use the same care and discretion to avoid disclosure, publication or dissemination or unauthorized access, of any Confidential Information received from the disclosing Party as the receiving Party uses with its own similar information (but in no event less than a reasonable degree of care).
    3.  Disclosure. A Party may disclose the other Party’s Confidential Information to its Affiliates and to its and their personnel, officers, directors, employees, advisors, consultants, vendors, invitees, representatives, contractors, agents or other individuals acting on such Party’s behalf (collectively, “Representatives”) (where the other third parties have a need to know and are obligated to maintain the confidentiality of the disclosing Party’s Confidential Information upon terms no less stringent than those contained herein, whether by agreement, code of conduct, or otherwise) or as may be necessary by reason of legal, accounting or regulatory requirements. A receiving Party shall be liable for the failure of any Representatives to comply with the obligations set out in this Section 7.  In addition, either Party may disclose the terms of this Agreement and the IO to potential parties to a corporate reorganization, divestiture by governmental or regulatory body action or acquisition of a Party, or similar transactions to facilitate due diligence and closing of that transaction, provided that potential party is subject to written non-disclosure obligations and limitations on use only for the prospective or closed transaction, each party to that transaction limiting disclosure to the extent necessary.  The receiving Party shall promptly report to the disclosing Party any use or misuse of the other Party’s Confidential Information that may materially affect the disclosing Party and shall specify the corrective action to be taken, if any.  In addition, the receiving Party agrees to advise the disclosing Party promptly and in writing of any unauthorized misappropriation, disclosure or use by any person of the other Party’s Confidential Information which may come to its attention and to take all steps at its own expense reasonably requested by the disclosing Party to limit, stop or otherwise remedy such misappropriation, disclosure or use. 
    4.  Reservation of Rights. Except as otherwise expressly stated in this Agreement: (a) nothing in this Agreement is intended to transfer from either Party to the other Party any right, title or interest in or to any Confidential Information of such Party, and each Party hereby reserves all rights in its Confidential Information; (b) to the extent that either Party provides or makes available any Confidential Information to the other Party pursuant to this Agreement, such other Party and its Affiliates and their respective Representatives shall have a personal, non-exclusive, non-transferable, limited right to use such Confidential Information and solely for the purpose of performing such Party’s obligations or exercising its rights under this Agreement; and (c) no other license is granted to either Party under this Agreement, by implication or otherwise, with respect to any Confidential Information that may be provided or made available by the other Party to such Party under this Agreement. For purposes of this Agreement, “Affiliate” means any person or entity which controls, is controlled by or is under common control with the subject entity, due to ownership or control of more than fifty percent (50%) of the equity securities of the subject entity entitled to vote in the election of directors, or otherwise having the power to control the management and policies of the subject entity.
    5.  Exclusions from Nondisclosure and Nonuse Obligations. The receiving Party’s obligations under Sections 7.2 and 7.3 do not apply to information that was: (a) already in the public domain at or subsequent to the time such Confidential Information was communicated to the receiving Party by the disclosing Party through no fault of the receiving Party; (b)  rightfully in the receiving Party’s possession free of any obligation of confidence at or subsequent to the time such Confidential Information was communicated to the receiving Party by the disclosing Party; or (c) developed independently by the receiving Party without the use of any Confidential Information of the disclosing Party. A Party may disclose Confidential Information of the other Party (i) in response to a valid order by a court or other governmental body, or (ii) in connection with any legal or regulatory request or proceeding; provided, however, that the receiving Party, to the extent legally permitted to do so,  shall provide prompt prior written notice thereof to the disclosing Party to enable the disclosing Party to seek a protective order or other appropriate remedy to prevent such disclosure.  If, in the absence of a protective order, the receiving Party is nonetheless compelled by law to disclose such Confidential Information, the receiving Party may disclose, without liability hereunder, such portion of such Confidential Information which, upon the advice of receiving Party’s legal counsel, is legally required to be disclosed and shall exercise all reasonable efforts to obtain assurance that confidential treatment will be accorded to that Confidential Information. However, nothing in this Agreement will restrict a Party’s ability to disclose Confidential Information to any governmental or regulatory bodies asserting jurisdiction over such Party. 
    6.  Non-Circumvention. In addition to the restrictions on disclosure and the handling of Confidential Information in this Section 7, neither Party shall use in any manner any of other Party’s Confidential Information for the purpose of circumventing or attempting to circumvent, directly or indirectly, the intent of this Agreement, including but not limited to, use of such Confidential Information to reverse-engineer proprietary technology, to develop competitive products or services, or to directly compete with the other Party. 
    7.  Return or Destruction of Confidential Information. Each Party shall destroy or return any of the other Party’s Confidential Information in its possession or under its control, as soon as possible after the earlier of termination of the Agreement or the other Party’s written request, which may include a request for certification. The obligations in this Section 7.7 will not apply to: (x) any archival copy retained systemically as a function of the receiving Party’s disaster recovery or back-up process or information provided to any governmental or regulatory body, (y) to the extent applicable record retention laws require the receiving Party to have access to the other Party’s Confidential Information after termination or expiration of this Agreement or the other Party’s request for its return or destruction, provided that the receiving Party must provide such requirements to the disclosing Party after receipt of the disclosing Party’s written direction.  
    8.  Data Security and Privacy. Both Parties shall comply with all applicable laws, regulations, privacy guidelines and applicable agreements governing the collection and use of all non-public, personal information of any customer data, including without limitation, the Gramm-Leach-Bliley Act (collectively, the “Privacy Rules”) to the extent applicable to the activities conducted under this Agreement. Both Parties agree to implement appropriate measures designed to meet the objectives of the Privacy Rules including to: (a) maintain the security and confidentiality of customer data; (b) protect against threats or hazards to the security or integrity of customer data; and (c) protect against unauthorized access to or use of customer data that could result in substantial harm to any customer of any person. The Parties shall notify each other of any unauthorized disclosures of customer data promptly and in writing. Both Parties will take all reasonable steps to safeguard all login and password information provided by Figg to Merchant hereunder, so as to ensure that no unauthorized person will have access to the Figg Platform, and that no persons authorized to have access will make any unauthorized use thereof. Merchant will promptly report to Figg any unauthorized access to or use of the Figg Platform of which Merchant becomes aware and will take such further steps as may reasonably be requested by Figg to prevent further unauthorized access to or use thereof. Merchant will comply with all requirements provided by or on behalf of credit card companies to Merchant in order to ensure Figg’s compliance with all credit card and payment-related processing Privacy Rules, and neither Party will knowingly take any action that would cause the other Party to be in breach of its agreement with the credit card company, or any card association networks, as applicable, or any successor thereto.
    9.  Figg acknowledges that Merchant obtains, or may obtain, sales information from various sources (e.g., Card Network/Processor monthly reports directly to Merchant, Merchant’s internal sales records, etc.). This sales information may include some elements of data that are the same as the Qualified Transaction Data (as defined in Section 7.10., below). Merchant’s use of this separately obtained sales information is not subject to the restrictions in Section 7.10.
    10.  Merchant will only use data relating to the Figg Platform or Qualified Transactions (“Qualified Transaction Data”) to confirm the occurrence of a Qualified Transaction. Merchant will not use the Qualified Transaction Data for any other purpose. As between the Parties, the Qualified Transaction Data is Confidential Information of Figg, and, except as expressly authorized under this Agreement or with Figg’s express prior written consent, Merchant will not share it with others. Merchant will keep and/or use the Qualified Transaction Data only as long as there is a business need to have it, but not longer than 120 days.  
  8.  Term and Termination:
    1.  Term. This Agreement shall be effective as of the effective date of the IO and shall continue for the duration of the applicable Campaign or other term stated in the IO.
    2.  Termination. Either Party may terminate this Agreement and any related IO: (a) upon thirty (30) business days’ prior written notice if the other Party commits any material breach of this Agreement and fails to cure the breach during such notice period; (b) immediately upon written notice if (i) the other Party ceases doing business as a going concern, is dissolved or otherwise terminates its business operations, (ii) the other Party files a petition in bankruptcy or institutes any action under federal or state law for the relief of debtors, or (iii) the other Party seeks or consents to the appointment of an administrator, receiver, custodian, or similar official for the winding down of its business; or (c) immediately upon written notice if applicable laws, rules, regulations, or other governmental guidance, in the terminating Party’s good-faith determination and after discussion with the other Party, materially conflicts with this Agreement. Either Party may terminate this Agreement and any related IO for any reason upon ninety (90) days’ prior written notice to the other Party. 
    3.  Wind-Down. Upon any termination or expiration of this Agreement, the Parties shall collaborate as reasonably necessary to effectuate an orderly wind-down of any live Campaigns, and all provisions of this Agreement shall survive termination to the extent necessary to govern and enforce such wind-down.
    4.  Survival. Termination of this Agreement shall not relieve the Parties of any obligation or liability accruing prior to such termination. Sections 6, 7, 8.3., 10, 11, 12, and 13 of this Agreement, together with any outstanding payment obligations and terms that should reasonably be interpreted to survive termination, shall survive any termination of this Agreement.
  9.  Representations and Warranties:
    1.  Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that: (a) it has the necessary authority to enter into and perform this Agreement and is not subject to any agreement or other constraint that would prohibit or restrict its right or ability to enter into, or carry out, its obligations hereunder; and (b) it shall comply with and shall not violate any and all applicable laws in connection with its performance of this Agreement or the conduct of its business as it pertains to this Agreement.
    2.  Merchant Representations and Warranties. Merchant hereby represents and warrants to Figg that: (a) it is authorized and has the necessary third party consents to grant the licenses for the Creative and Merchant Marks associated with each Campaign; (b) no Creative, Merchant Marks, or Offer associated with such Campaign shall: infringe, misappropriate or violate any third party’s Intellectual Property Rights or other rights, be defamatory or obscene, or violate any law or regulation or the rights of privacy or personality of any third party; and (c) such Campaign(s) and related Offer shall comply with all applicable laws (including those relating to the consumer purchase of Merchant’s goods or services).
    3.  Agent Representations and Warranties. Solely where an advertising agency or similar agent of Merchant (“Agent”) has entered into this Agreement on behalf of Merchant, Agent hereby represents and warrants to Figg that: (a) it is the authorized agent of Merchant; (b) it has the necessary authority to enter into this Agreement such that Merchant will be bound by its terms; and (c) it has the authority to make all decisions and take all actions relating to the Campaigns. 
    4.  Disclaimer of Warranties. All services provided under this Agreement are provided “as-is” without express or implied representation or warranty of any kind, and the Parties respectively disclaim all representations or warranties with respect to such services. Merchant’s use of Figg’s services is at Merchant’s own risk.
  10. Indemnification:
    1.  Indemnification. Each Party shall defend, indemnify and hold the other Party, its officers, directors, Affiliates, and employees harmless from and against any and all losses, liabilities, damages and expenses (including reasonable legal fees) arising from any claims, demands, actions or threats of action (“Claims”) taken against the indemnifying Party by any third party resulting from or relating to: (a) any gross negligence, fraud or willful misconduct by the indemnifying Party in connection with this Agreement; (b) any breach or alleged breach by the indemnifying Party of any of its representations, warranties or obligations under this Agreement, including but not limited to its confidentiality obligations and the Privacy Rules; or (c) any actual or alleged infringement, violation or misappropriation of the Intellectual Property Rights of any third party by the indemnifying Party or the use of any Intellectual Property provided or made available by the indemnifying Party in connection with this Agreement.
    2.  Notice, Defense and Settlement.  
      1.  A person seeking indemnification of a Claim under Section 10.1 above must give the indemnifying Party timely written notice of the Claim, which notice must describe Claim and the basis for seeking indemnification; provided, however, that the omission to timely notify the indemnifying Party will only relieve the indemnifying Party from liability which the indemnifying Party may have to the indemnified Party to the extent that the indemnifying Party was materially prejudiced by the omission.
      2.  If a Claim is made against an indemnified Party and the indemnified Party notifies the indemnifying Party of the commencement thereof, the indemnifying Party will, subject to Section 10.2.3 below, have the option to exercise sole control of the defense and settlement of the Claim.
      3.  The indemnified Party may retain separate counsel at the indemnifying Party’s expense and agree to a settlement or compromise of an indemnifiable Claim, if the indemnifying Party does not notify the indemnified Party, within thirty (30) days after it has received an indemnification notice from the indemnified Party that supports the obligation to indemnify the indemnifiable Claim, that it elects to undertake the defense of the indemnifiable Claim, or otherwise fails to defend the indemnified Party as provided for in this Section 10. The indemnifying Party shall not compromise or settle any claim in a manner which affects the indemnified Party’s rights, makes admissions on the indemnified Party’s behalf, or obligates the indemnified Party to take or not take any action, including without limitation the payment of money, without the indemnified Party’s prior written approval, which shall not be unreasonably withheld or delayed.
  11.  Limitation of Liability:
    1.  Indirect Damages. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 ABOVE, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT OR WITH RESPECT TO MATTERS RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHE LEGAL OR EQUITABLE PRINCIPLES, OR FOR ANY LOSS OF PRESENT OR PROSPECTIVE PROFITS OR REVENUES, OR LOSS OF ACTUAL OR ANTICIPATED PROFITS, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH THE PERFORMANCE OF OBLIGATIONS HEREUNDER, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, EVEN IF THAT PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
    2.  Liability Cap. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 ABOVE, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN AN AMOUNT IN THE AGGREGATE GREATER THAN 12 MONTHS’ WORTH OF FEES UNDER THE AGREEEMENT, EVEN IF NOT PAID BY MERCHANT.
    3.  Applicability. THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. IF APPLICABLE LAW PRECLUDES A PERSON FROM DISCLAIMING A PARTICULAR KIND OF DAMAGE OR CAPPING THE LIABILITY FOR CERTAIN TYPES OF ACTIONS OR CLAIMS, THEN THE ABOVE PROVISIONS SHALL BE DEEMED AMENDED TO CONFORM WITH APPLICABLE LAW AND THE BALANCE OF THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT.
    4.  Allocation of Risk. THE PARTIES HAVE FULLY CONSIDERED AND FIND REASONABLE THE FOREGOING ALLOCATION OF RISK, AND THE FOREGOING LIMITATIONS IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
  12.  Miscellaneous:
    1.  Relationship of the Parties. The Parties will at all times act independently, and their relationship will be that of independent contractors. No agency, partnership, joint venture or similar relationship shall be deemed to be created by this Agreement or by any other document or dealings between the Parties. Neither Party will have the right to create any obligation or duty, express or implied, on behalf of the other Party.
    2.  Assignment. Except as otherwise expressly provided under this Agreement, neither this Agreement nor any right or obligation hereunder may be assigned or otherwise transferred (whether voluntarily, by operation of law or otherwise), without the prior express written consent of the other Party; provided, however, that either Party may, without such consent, assign this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business, or in the event of its merger, consolidation, change in control or similar transaction, and Figg may assign this Agreement to any Affiliate. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment or transfer in violation of this Section 12.2 shall be void.
    3.  No Waiver. The failure of either Party to enforce at any time or for any period any of the provisions of this Agreement shall not be construed to be a waiver of those provisions or of the right of that Party thereafter to enforce each and every provision hereof.
    4.  Notices. Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received when sent electronically by email, delivered by hand, sent by nationally recognized overnight courier, or sent by registered or certified mail, return receipt requested, postage prepaid, and properly addressed to Figg, Inc. at 10050 Crosstown Cir, Suite #400, Eden Prairie, MN 55344, if Merchant is the notifying Party, and to Merchant at its office address set forth in the IO, if Figg is the notifying Party. 
    5.  Governing Law. This Agreement and any claim, controversy, or dispute arising under or related to this Agreement, shall be governed and construed in accordance with the laws of the State of Delaware, without reference to rules regarding conflicts of law. The Parties agree that any legal action or other proceeding relating to and permissible under this Agreement will be commenced, if at all, in a federal or state court located in Delaware, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts of the State of Delaware, and each Party irrevocably submits to the sole and exclusive jurisdiction of the courts of the State of Delaware with respect to any action, suit or proceeding brought by it or the other Party.
    6.  Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, each Party agrees that such provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. If necessary to effect the intent of the Parties, the Parties shall negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
    7.  Force Majeure. The Parties to this Agreement shall be excused from any performance required hereunder (except the obligation to tender payments) if such performance is rendered impossible or unfeasible due to any catastrophes or other major events beyond their reasonable control, including without limitation, war, riot and insurrection; laws, proclamations, edicts, ordinances or regulations; strikes, lockouts or other serious labor disputes; earthquakes, floods, fires, explosions, epidemics, pandemics or other natural disasters. When such events have abated, the Parties’ respective obligations hereunder shall resume.
    8.  Headings. The title of the various sections of this Agreement are used for convenience of reference only and are not intended to and shall not in any way enlarge or diminish the rights or obligations of the Parties or affect the meaning or construction of this document.
    9.  Counterparts. The IO governed by this Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
    10.  Entire Agreement. This Agreement constitutes the entire agreement and final understanding of the Parties with respect to the subject matter hereof and supersedes and terminates any and all prior or contemporaneous negotiations, representations, understandings, discussions, offers or agreements between the Parties, whether written or verbal, express or implied, relating in any way to the subject matter hereof. This Agreement is intended by the Parties to be a complete and wholly integrated expression of their understanding and agreement, and it may not be altered, amended, modified or otherwise changed in any way except by a written instrument, which specifically identifies the intended alteration, amendment, modification or other change and clearly expresses the intention to so change this Agreement, signed by authorized signers of Figg and Merchant.