Marketing Services Agreement (04.09)[1]

MARKETING SERVICES AGREEMENT

Date of this agreement:______________

d/b/a (Legal Name of Merchant)

(“You”) (Public Name of Merchant)

(Official Address of Merchant) You agree, for good and valuable consideration, to enter into this Marketing Program Services Agreement with Rewards Network Establishment Services Inc., a Delaware corporation (“We” and/or “Us”). We agree to provide marketing services to you and you agree that your location(s) will participate in our marketing services program as described in this agreement. A. MARKETING SERVICES 1. Marketing Services. We will market you to persons (“Members”) enrolled in rewards programs operated by us or managed by us for other entities who offer our program to members of their own rewards programs (“Partners”). The marketing that we will provide may include email, web sites, or other marketing as may be determined by us in our discretion. We will provide a reward to Members who have a Qualified Transaction at your location(s) that you enroll in our marketing services program. B. FEES 2. Fees. You will pay us a fee equal to 17.5 % (“Program Fee Percentage”) of the amount of each Qualified Transaction. A “Qualified Transaction” is any transaction in which a Member uses a credit or debit card (“Payment Card”) registered with us to purchase goods and services from you and which meets our requirements to qualify for a Member reward. The amount of a Qualified Transaction is the full amount of the Payment Card transaction and includes taxes and tip. 3. Authorized Processor. You will accept Payment Cards for all transactions. You authorize us to monitor all of your Payment Card transactions in order to determine Qualified Transactions. You agree that the only Payment Card processors used by you to process your Payment Card transactions will be our “Authorized Processor(s)” and you will provide us with information for all Payment Card processors used by you. We may revoke the authorization of an Authorized Processor at any time and require you to obtain a replacement within 15 days after receiving notice from us. You may change to another Authorized Processor by giving us 15 days advance written notice of any such change. If you do not give us this advance notice, you agree to pay us a $500 processor change fee. The Authorized Processor may provide us any information relating to Payment Card transactions requested by us, including any cardholder account information. 4. Bank Account. You authorize us to initiate debit and credit entries in a “Bank Account” designated by you. We may withdraw from the Bank Account at any time any amounts that you owe to us. You will not allow the Bank Account to be closed or replaced unless you provide us at least 10 days advance written notice and information on a replacement Bank Account. If we are unable to withdraw amounts from the Bank Account for any reason, including because the Bank Account has insufficient funds, has been closed or our authority to debit has been revoked, you agree to pay us a $20 returned transaction fee for each time we are unable to debit the Bank Account as permitted in this agreement. C. TERMINATION OF AGREEMENT 5. Termination Upon Notice By Either Party. Either you or we can terminate this agreement and your participation in our marketing services program by providing 30 days prior written notice to the other party. Termination will become effective on the last day of the calendar month in which the expiration of the 30-day notice period occurs. 6. Termination for Non-Performance. We may terminate this agreement, discontinue providing our marketing services to you and terminate your participation in our marketing services program if (i) we are unable to debit the Bank Account; (ii) we do not receive information on Payment Card transactions from your Authorized Processor for any reason; (iii) your business is interrupted or changed so that Members cannot have Qualified Transactions during a one-week period or longer; or (iv) you breach this agreement in any other manner and the breach is not cured within 3 days after we notify you of the breach. 7. Termination Fee. Because we will incur costs in setting up your participation in our marketing services program, if within 6 months after you begin participation in our program, you terminate this agreement or we terminate this agreement for your non-performance, you agree to pay us a termination fee of $350. D. OTHER TERMS AND CONDITIONS 8. Indemnification. You agree to indemnify and hold us and our affiliates harmless from and against any and all losses and expenses incurred by us or any of our affiliates in connection with or arising from any claim, action, suit or proceeding initiated by any Member, Authorized Processor or any other third party in connection with or arising from any act or failure to act, or alleged act or alleged failure to act, by you. 9. Intellectual Property and Data Rights. (a) Intellectual Property. You acknowledge that nothing in this agreement grants you any right to use any trade name, trademark, service mark, design mark, other indicia of source or origin or other intellectual property of ours or any third party (including, without limitation, any Partner). You have all rights to grant and hereby grant us, our Partners, and our affiliates a limited,

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non-exclusive license to use your trade names, trademarks, service marks, design marks, other indicia of source or origin and other intellectual property of yours in connection with our marketing services. (b) Data Rights. You hereby grant us the right, subject to all applicable laws, to use, analyze, sell, provide, and distribute the information that is created or collected through our marketing services program. 10. Chargebacks, Offsets and Credits. We may offset any amounts due from you at any time and you authorize us to initiate credits and debits in the Bank Account to offset any amounts due to us from you. You will be responsible for all chargebacks or billing disputes relating to Qualified Transactions. 11. LIMITATION ON LIABILITY. WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED UNDER ILLINOIS LAW. 12. GOVERNING LAW, EXCLUSIVE ILLINOIS FORUM AND SUBMISSION TO JURISDICTION. THIS AGREEMENT, AND ALL CLAIMS DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PRINCIPLES) OF THE STATE OF ILLINOIS. FOR ANY ACTION, SUIT OR PROCEEDING RAISING SUCH CLAIMS, THE EXCLUSIVE FORUM SHALL BE THE STATE COURT LOCATED IN COOK COUNTY, ILLINOIS, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE FORGOING COURTS. Each party will bear the expense of its respective attorneys’, experts’, and witness fees, regardless of which party prevails, unless applicable law gives either party the right to recover any of those fees from the other party. 13. Miscellaneous. (a) Assignment. Neither this agreement nor any of the rights granted hereunder is/are assignable or transferable by you without our prior written consent. This agreement will be binding upon and inure to the benefit of you and us and our respective successors and assigns. (b) Operation of Business. You will operate your business in accordance with all applicable federal, state and local laws and will not operate your business in a manner that is reasonably likely to adversely impact our relationship with Members and Partners. (c) Notices. All notices or other communications hereunder will be in writing and will be deemed given when delivered personally, when sent by mail or overnight courier service using the address for such party provided in this agreement, or when sent by electronic mail or facsimile to you using your email address or facsimile number in our records. Our Address: Two North Riverside Plaza, Suite 950, Chicago, Illinois 60606 (d) Entire Agreement; Amendments. This agreement contains the entire understanding between the parties with regard to the subject matter contained herein and supersedes all prior written or oral agreements between the parties. This agreement will not be modified, amended or supplemented except in writing signed by each of the parties hereto. (e) Partial Invalidity and Waiver. In the event any one or more of the provisions herein are held to be invalid, illegal or unenforceable, such provision will be ineffective only to the extent of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or any other provisions hereof. Our failure to enforce at any time any provision of this agreement will not be construed to be a waiver of such provision, nor in any way to affect the validity of this agreement. (f) No Third-Party Beneficiary; No Agent. Nothing in this agreement will operate to confer rights or benefits on persons or entities other than you, us, or our respective successors or assigns. Nothing in this agreement will be construed to imply, and the parties hereby expressly deny, that we are your (i) agent for collecting or remitting any amount due you from any Payment Card processor, (ii) fiduciary, or (iii) partner. (g) Counterpart and Facsimile Signature. This agreement may be executed in one or more counterparts, each of which will be deemed an original. The signature of any party by electronic facsimile on this agreement will be considered as an original signature.

This agreement will be effective on the date we approve and execute this agreement. Rewards Network Establishment Services Inc. Legal Name of Merchant By:

04/09

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