Card Order Agreement

Card Order Agreement

 

This Card Order Agreement (the “Agreement”) is effective as of the date the Agreement is electronically signed by Client (the “Effective Date”), by and between Blackhawk Network, Inc., an Arizona corporation, with its principal place of business located at 6220 Stoneridge Mall Road, Pleasanton, CA 94588 or Blackhawk Network (Canada) LTD, a corporation incorporated under the laws of the Province of Alberta, as determined by Blackhawk (“Blackhawk”) and the organization on whose behalf the Order is placed and the Agreement accepted (“Client”). Blackhawk and Client are each referred to herein as a “Party” and together as the “Parties.

1. Master Agreement; Scope. This Agreement shall serve as a master agreement pursuant to which Client may place orders for (i) prepaid card products, whether plastic or electronic, including, as applicable, cards bearing a network logo that can be used anywhere that accepts that network brand, subject to the filter selected by Client (“Open Loop Prepaid Cards”) and branded prepaid cards (including, without limitation, amusement, theme, sports and other admission tickets) which, when activated, can be used to purchase services and merchandise from the relevant retailer (“Single Merchant Gift Cards”) (collectively, Open Loop Prepaid Cards and Single Merchant Gift Cards shall be referred to as “Cards” or “Awards”) to be used in connection with Client’s loyalty, award or promotional program sponsored by Client where individuals are awarded a Card and where no money or other thing of value is given by the individual in exchange for the Card (each a “Program”), (ii) related products, and (iii) fulfillment services (“Services”). Client agrees to purchase the quantity and denomination of Cards, related products and Services at the prices outlined in each order which is either dynamically created on Blackhawk’s website and executed by Client via electronic signature, or is electronically submitted via file transmission to Blackhawk (in a form and format to be agreed between the parties) including that information required to fulfill Cards (each such order, an “Order”). All Orders placed by Client are subject to acceptance by Blackhawk.

2. Term and Termination. Upon acceptance and approval by Client of the product set-up and/or placement of an order by Client, Client agrees to comply with the terms and conditions set forth herein, which may be amended or supplemented by BH from time to time. Current terms and conditions may be found at https://blackhawknetwork.com/card-order-agreement or any location designated by Blackhawk in the future. This Agreement will be effective as of the Effective Date and shall apply to all Orders placed by Client for Awards until the Agreement is superseded, terminated or amended by the parties as provided herein (the “Term”). This Agreement and/or any Order placed pursuant to this Agreement may be terminated by either party: (a) immediately in the event the other party ceases to function as a going concern, files a voluntary petition for relief under the bankruptcy code or makes an assignment for the benefit of creditors; or (b) upon written notice to the other party, if the non-terminating party has breached any term of this Agreement, and failed to cure such breach (for non-payment obligation breaches only) within thirty (30) days of its receipt of written notice from the terminating party of such breach, or (c) for any reason upon sixty (60) days written notice. In addition, Blackhawk may terminate this Agreement and/or any Order placed pursuant to this Agreement: (i) if required by the Network, Issuer, or any vendor required for the processing and fulfillment of any Cards; (ii) in the event any financial statement, representation, warranty, statement or certificate furnished by Client in connection with or arising out of this Agreement is materially untrue as of the date made or delivered; (iii) upon any change in any applicable statute, rule, regulation, ordinance, or other law or any order or directive or interpretation of any applicable governmental authority or regulatory body which, in the reasonable opinion of Blackhawk either invalidates or is otherwise inconsistent with the terms of this Agreement, would cause one or both of the Parties to this Agreement to be in violation of the law, would materially impact Blackhawk’ ability to satisfy its obligations under this Agreement; and/or would have a material adverse effect on the Blackhawk’ business, financial condition and/or operations; (iv) if there is excessive fraud associated with the Ordered Cards, as determined by Blackhawk in its sole discretion; (v) in the event any Client Content or other information provided by Client infringes or is alleged to infringe on the rights of any person; and/or (vi) in the event Blackhawk believes Client’s conduct may be harmful to Blackhawk’ business. No termination or expiration of this Agreement shall affect any right or obligation that accrues prior to such termination or expiration. Notwithstanding the foregoing, in the event that Blackhawk provides a notice of termination to Client, Blackhawk shall have the right to suspend performance under this Agreement or any Order placed pursuant to this Agreement during the notice period and/or thereafter unless and until the breach is fully remedied by Client.

3. Fees and Payment.

a. Fees. In consideration for the Cards and related services, Client shall pay the amounts set forth in the Order. Invoices associated with an Order, or payments made in association with an Order, shall include the fees set forth in the Order (“Fees”) and amounts necessary to fund Awards (collectively the face value of the Award and associated Fees are “Award Funds”) to those individuals participating in Client’s Program and, as applicable, receiving a Card in connection with Client’s Program (“Participants”). Client agrees that Award Funds and shipping costs, where applicable, shall be prepaid by Client at the time of placement of an Order and are non-refundable and non-returnable unless otherwise agreed by the Parties. Client acknowledges and agrees that Blackhawk will not be required to process or release Awards until the corresponding Award Funds are forwarded and made available to Blackhawk. Upon submission of an Order, such fees and funding shall be remitted by Client in accordance with Blackhawk’s instructions. Additional terms may apply based on payment method and shall be provided on the appropriate payment processing form by Blackhawk upon request.

b. Prefund. Client and Blackhawk may establish an account prefunded by Client (in an amount to be agreed between the parties) for payment of Award Funds owed by Client to Blackhawk (the “Prefund Account”). When the amount of available funds in the Prefund Account drops below a threshold established by agreement between the parties, Client shall submit funds in an amount sufficient to bring the balance of the Prefund Account back up to the agreed prefund amount. Client acknowledges and agrees that Blackhawk will not be required to process or release Awards until the corresponding Award Funds are forwarded and made available to Blackhawk.

c. Taxes. The parties agree that Client will be solely responsible for all tax-related withholding, filing, remittance, and reporting it deems necessary or required under this Agreement. Blackhawk shall not have any responsibility or liability for any tax-related withholding, filing, remittance, or reporting, in the United States or internationally, either to the governing regulatory body or to any Participants, and Client will indemnify and hold Blackhawk harmless from any and all Claims, investigations, inquiries, or subpoenas, and all associated costs and expenses incurred by Blackhawk, resulting from or arising out of any such tax-related withholding, filing, remittance, or reporting or the failure to perform or improper performance of the same. Blackhawk shall provide any information reasonably requested by Client to enable Client to execute its responsibilities under this subsection. Notwithstanding the foregoing, Blackhawk shall charge applicable Canadian tax on all Fees. Applicable taxes shall be determined based on the province of ship-to address for the Card(s), or the billing address for any additional services, as applicable.

4. Portal Registration: Each individual authorized by Client to place an Order via the portal (“User”) will access the portal via credentials unique to Client/User. Client acknowledges and agrees that Client is fully responsible for all Orders placed through the portal through credentials registered to Client. Blackhawk shall not be liable for, and shall not be obligated to cancel or correct, any Order made through credentials registered to Client, except to the extent of any gross negligence or willful misconduct by Blackhawk or its employees or agents.

5. Fulfillment: Following receipt of the associated Award Funds, Blackhawk will fulfill Awards. If the Awards are to be shipped directly to Participants, Blackhawk will submit the Award to the United States Postal Service (USPS) or the Canadian Post, as applicable, on behalf of Client, except to the extent otherwise specifically agreed between the parties. Electronic cards shall be distributed to the Card recipients via e-mail or to Client by delivery of bulk files via web services. Client acknowledges and understands that the use of the USPS, Canadian Post, electronic mail, or overnight courier involves risks and the potential for lost, stolen or misdirected mail or email or delays in delivery of the mail or email, and Client agrees that Blackhawk shall under no circumstance bear any liability (financial or otherwise) resulting from or attributable to lost, stolen or misdirected or delayed mail or email, except to the extent attributable to the negligence or intentional misconduct of Blackhawk. Risk of Loss for the Cards passes to client upon delivery of the Awards to the applicable carrier. Client acknowledges that Blackhawk’s delivery obligations are contingent upon client providing all necessary information to Blackhawk and otherwise being in compliance with the terms of this Agreement. Fulfillment Fees are inclusive of associated postage via regular mail, though all such fees will automatically be adjusted without any action by the parties following any increase in the relevant postal rates. Where Client elects to designate a carrier other than USPS or Canadian Post, or where Client elects bulk shipment of Awards, shipping fees shall be passed through to the Client.

6. Prepaid Cards:

a. Fulfillment Requirements: Client shall not offer Cards for resale to consumers. Client represents and warrants that it shall only request fulfillment of Awards pursuant to a bona fide, good faith awards, rewards, loyalty, incentive, rebate, or promotional Program. Client shall be solely responsible to manage and implement its promotion and determine which Participants are eligible to receive Cards and receive value on the Cards. Client shall not request that Cards be provided to persons who have not reached the age of majority in their jurisdiction. Client shall not utilize Cards for payment of “commissions”, e.g., the Card program shall not provide a primary source of compensation to the Participant.

b. Transaction Data: Transactional information obtained by any third party Card Issuer utilized by Blackhawk in the fulfillment of prepaid cards will be the sole property of such third party.

c. Network and Issuer Rights: Client recognizes and acknowledges that the design of any Card, any Card program, and the use of Cards as provided in this SOW, are subject to the approval of Visa®, MasterCard®, or Discover®, as applicable (“Network”), and the issuing bank with whom the accounts associated with the Cards are held, or, for Single Merchant Gift Cards, the merchant issuer ("Issuer"). Client acknowledges that such approval may be withdrawn by the Network or Issuer at any time. In addition, should Blackhawk determine in its sole discretion that any such design, program, or use is likely to result in a withdrawal of approval by the Network or Issuer, or is likely to result in economic or reputational damage to the Network, the Issuer, or Blackhawk based upon the actual or intended use of Cards or circumstances in which Cards are distributed, then Blackhawk may cease or suspend issuance of Cards in association with this SOW, and/or require Client to cease or suspend distribution of Cards held in inventory. Blackhawk reserves the right to determine the appropriate network for all Open Loop Prepaid Cards or programs in accordance with applicable law and Network and Issuer requirements. The Card Issuer may impose a limit on the total active balance any Participant may control. Blackhawk reserves the right to monitor such balances and may, but shall not be required to, block access to funds if the combined balance of all Cards controlled by a single Participant exceeds the limit set by the Issuer.

d. International Card Fulfillment: Client shall not send or instruct Cards to be sent outside the U.S., its territories, the District of Columbia, or Canada, unless the Program utilizes a product specifically authorized for international shipment. A fee of $1.00 per Card surcharge shall apply for all Cards sent outside the US or Canada for 1 oz. card packet. International shipment fees are subject to change without notice. Only personalized individual orders may be shipped internationally. International shipping addresses are limited to English alphabet only. Blackhawk shall not fulfill Cards to countries prohibited or sanctioned by the Office of Foreign Assets Control (“OFAC”), the Financial Action Task Force ("FATF"), the Office of the Superintendent of Financial Institutions (“OSFI”), and/or as directed by Issuer (hereinafter “Prohibited Countries”). Cards may not be redeemed in Prohibited Countries regardless of whether the country was previously permitted for Card shipment or redemption. Additional terms apply for fulfillment of Open Loop Prepaid Cards in currencies other than U.S. or Canadian dollars.

e. Information Requests: Blackhawk, the Issuer, and the Network may require Client to provide certain information to identify: (i) the intended use of Cards issued under this SOW, (ii) Client’s identity, and (iii) Client’s owners. Such information may be used to comply with applicable anti-money laundering laws, and to confirm that the Cardholder Agreement will comply with applicable laws, rules, and regulations. Client represents and warrants that any such information provided to Blackhawk is true and accurate and shall remain true and accurate prior to the placement of any Fulfillment Request. Based upon the information so provided (or Client’s failure to provide such information), Blackhawk, the Issuer, and the Network reserve the right to withdraw approval for Client’s program.

f. Third Parties: Client shall disclose to Blackhawk any third party to be used for or involved in payment or distribution of Cards (all such parties, the “Third Parties”). Further, upon any changes to the contact or identification information for any Third Party, Client shall provide Blackhawk with such updated information fifteen business (15) days in advance of such change.

g. Supplemental terms: If Client wishes to purchase any Cards, the resale and distribution of which are subject to additional terms and conditions dictated by the Issuer or necessary in Blackhawk’s reasonable discretion, Client acknowledges that execution of and compliance with such terms and conditions shall be a condition precedent to Client's ability to purchase and/or resell such Cards. The terms of Exhibit A hereto, the Amazon Agreement Acknowledgement, are incorporated herein and apply to each Order by Client for Amazon-branded Cards.

h. Terms Applicable to Open Loop Prepaid Cards: The following terms apply to all Orders of Open Loop Prepaid Cards:

i. General: Open Loop Prepaid Cards may be anonymous or personalized, as identified in this SOW. For personalized Open Loop Prepaid Cards, Client shall provide only the first name and last name, or first initial and last name, of a natural person. If Client provides any text or symbols to Blackhawk other than the first initial or name and last name of the natural person Participant, (i) Blackhawk shall not be responsible for any costs associated with any request for replacement of such Cards, (ii) the Card shall be treated as an anonymous card for customer service purposes. As applicable, the personalized Card demographic data must include Participant’s home address regardless of the shipment method. Client shall transmit Participant home address and updates thereto as necessary to Blackhawk regardless of the shipment method specific to personalized Cards. Should addresses other than the Participant’s home address be provided, Client accepts and acknowledges that the Card may be suspended and/or cancelled and the Card may not function at the point of sale. Blackhawk reserves the right to deny participation or cancel any issued Open Loop Prepaid Card for any Participant or proposed Participant should the name of the Participant appear on the OFAC), OSFI or Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”) lists, or other local, state, federal, or foreign lists of individuals being pursued by law enforcement agencies, or other such legal or risk related reasons as solely determined by Blackhawk.

ii. Card Package: If Client selects a plastic Card as the Award type, each Card will be issued with a Card carrier, a Cardholder Agreement insert, an envelope, and any other inserts applicable to the Card product (such as a “tips” page) or selected by the Client (collectively “Materials”). Client may utilize standard Materials, standard Materials featuring Client’s co-brand image, or custom Materials. Fees for co-branded or custom Materials shall be detailed in the “Fees” section of this SOW. For non-custom Materials, whether or not co-branded, Blackhawk reserves the right to change the Materials without notice. Any co-branding by Client shall not be changed without Client’s approval. In the event custom Materials produced for Client are not utilized (i.e., no Cards fulfilled) after the earlier of (i) an eighteen (18) month period from the time the Materials are ordered or (ii) termination of this SOW, Blackhawk may destroy any such Materials. Replacement Cards requested after destruction of custom Materials may be fulfilled with standard Card packets. Depending on the volume and type of custom Materials inventory requested, Client may be required to complete and submit a Custom Inventory Request Form prior to production or re-order of custom Materials. Conflicts between this subsection and the Custom Inventory Request Form shall be governed by the terms of the Custom Inventory Request Form.

iii. Cardholder Agreement: Except as otherwise specified herein, Client understands and agrees that the terms of a cardholder’s use of a Card issued under this SOW (“Cardholder Agreement”) will be governed by terms and conditions established by the Issuer.

iv. Cardholder Fees: Any fees imposed on the cardholder, such as maintenance fees or Card replacement fees, shall be disclosed in the Cardholder Agreement. Such fees may be reduced at Blackhawk’s discretion, without the need of Client approval. Client may establish customer service guidelines whereby Blackhawk customer service representatives may waive any such fees and credit charged fees to the relevant cardholder account, in which case any amounts so waived and/or credited will be billed to Client. Should any of the following occur during the Term of this Agreement so as to materially alter any features of the Cards, such as Card expiration of fees (including without limitation maintenance or interchange fees), then the parties agree that Blackhawk will no longer be required to offer Cards as a vehicle for Awards under this SOW under the pricing set forth herein, and both parties agree to negotiate new pricing in good faith: (i) the issuance of new or modified laws, rules or regulations, including without limitation rules issued by the Federal Reserve regarding the definition of “promotional cards”; (ii) a court ruling; or (iii) a change in the applicability of federal preemption to state or local stored value card regulations.

v. Changes: Client understands, acknowledges, and agrees that Blackhawk may need to make changes to the Cards or Services from time-to-time as required by the Issuer or Network. Client further understands, acknowledges and agrees that there may be additional charges associated with such changes. In the event Blackhawk is required to make material changes, Blackhawk shall communicate such changes to Client as soon as reasonably possible.

vi. Participant Service Calls and Website: Blackhawk shall provide customer service regarding the Cards to Cardholders via telephone (toll free for calls placed within the United States) and a Cardholder website.

vii. Card Funds: Unless the Card states, “Funds do not expire,” Cards must be used prior to the valid thru date displayed on the Card and are no longer redeemable after midnight (MST) the last day of the month that is embossed or printed on the Card face. The Cardholder Agreement contains directions specific to any Card balance remaining after the valid thru date.

viii. Fraud: Subject to applicable law, Client agrees to comply with all reasonable requests made by Blackhawk to investigate, prevent, and recover sums due relating to any actual or suspected loss, fraud, or other improper use of any Card ordered by Client or on Client’s behalf. Blackhawk reserves the right to suspend or cancel any Cards (or limit features offered on Cards prospectively), including but not limited to reloadable and/or ATM access, if it believes such Cards are being used for illegal or improper purposes. Client further agrees that it waives any right to dispute charge backs related to “force post” transactions associated with prepaid cards issued under this SOW, where Client, Purchaser, or an affiliate of Client or Purchaser, is the merchant associated with the “force post”. If Client requests bulk shipment of Cards, Client shall be solely obligated to ensure storage of any Cards in its possession, custody, or control in accordance with Network or Issuer storage guidelines provided by Blackhawk to Client.

ix. Compliance: With respect to Open Loop Prepaid Cards issued under this Agreement, as between Blackhawk and Client, Blackhawk is solely responsible for compliance with all applicable statutes, rules, laws and regulations governing: (i) the assessment of fees associated with such Cards; and (ii) any unclaimed property laws applicable to balances remaining on such Cards. Client further acknowledges that compliance efforts under this subsection may be made directly by Blackhawk or may be fulfilled by the Issuer.

x. Disbursements Cards: With respect to orders of Disbursements Open Loop Prepaid Cards, if such cards are offered to the Participant as one option of multiple payment methods, then Client shall display the short form disclosure to the participant prior to selection of payment method. Client must submit such disclosure to Blackhawk, and receive approval from Blackhawk prior to distribution of any Disbursements Open Loop Prepaid Cards.

i. Terms Applicable to Single Merchant Gift Cards: The following terms apply to all Single Merchant Gift Cards:

i. General. Single Merchant Gift Cards are available within the U.S. and Canada, and cannot be personalized. Card plastic is standard, but other Materials may be customized. Client acknowledges and agrees that availability of certain merchant Cards may change from time to time.

ii. Activation. Blackhawk shall activate all ordered Single Merchant Gift Cards prior to or after shipment to Client.

iii. Customer Service. Blackhawk shall only be responsible for customer service inquiries from Client regarding Fulfillment Requests and fulfilment thereof. Client understands and agrees that all other customer service inquiries (including without limitation inquiries from cardholders) shall be the responsibility of Client or the Card Issuer.

iv. Cardholder Agreement. Except as otherwise specified herein, Client understands and agrees that the terms of a cardholder’s use of a Single Merchant Gift Card provided under this Agreement will be governed by terms and conditions established by the Card Issuer. Fees imposed on the use of the Card, if any, shall be disclosed in the Cardholder Agreement.

7. Program Management for Third Parties: Client may request fulfillment Services on behalf of a third party (each a “Purchaser”) only if Client has completed and submitted to Blackhawk the appropriate partner application and has been expressly approved to do so by Blackhawk. Subject to Blackhawk’ approval, such Services shall be performed subject to the following requirements:

Neither Party grants, or shall be deemed to grant to the other Party any right, title or interest in or to proprietary technology, methods and methodologies, software code, documentation, tools, software and interfaces, trade secrets, works of authorship or other proprietary materials that are protected by intellectual property rights held by any Party or its licensors and used by the other Party in the operation and maintenance of the Program site (if applicable), or the BH website, including, without limitation, any and all intellectual property rights and other proprietary rights embodied therein or otherwise applicable thereto.  The Parties have not granted any intellectual property ownership interest in such Parties’ Marks or other intellectual property.

i. In addition to the information required to be disclosed hereunder, Client shall provide to Blackhawk all requested information regarding each Purchaser. Client may only request Cards to be fulfilled directly to the Participant or the Purchaser; Cards may not be held in inventory and further distributed by Client.

ii. If Purchaser is to submit Card funding or fees directly to Blackhawk, a "Direct Payment Fee" will be charged, and a written agreement between Blackhawk, Client, and Purchaser is required.

iii. Client shall enter into a written agreement with Purchaser, the terms of which shall pass along all obligations or representations and warranties of Client under the MSA and this SOW, which, based on the structure of the program, are controlled by or may properly be fulfilled by Purchaser.

iv. Should Blackhawk determine in its sole discretion that any Purchaser program or Purchaser use is likely to result in a withdrawal of approval by the Network or Issuer, or is likely to result in economic or reputational damage to the Network or Blackhawk based upon the actual or intended use of Cards or circumstances in which Cards are distributed, then Blackhawk may cease or suspend issuance of Cards in association with this SOW, and/or require Purchaser to cease or suspend distribution of Cards held in inventory.

v. In addition to the indemnification provisions set forth in the MSA, Client shall indemnify Blackhawk against any and all losses that Blackhawk may incur or be subjected to, including, without limitation, any loss resulting from any Claims brought by any entity including but not limited to governmental entities, as a result of or arising out of (a) Client’s failure to conduct due diligence on each Purchaser as required under this SOW, (b) any resale of the Cards by Purchaser(s), and (c) any resale of Cards to consumers by Client or Purchaser(s).

vi. Client shall maintain records of all payments and any due diligence performed by Client on Purchasers for a period of five (5) years from inception of the program through which the Cards are distributed. All such records shall be subject to audit by Blackhawk.

vii. Client shall comply with all requirements set forth in the Partner Operations Manuals found at the following links, or any web address to which the aforementioned addresses redirect:

x) For Business Funded U.S. Dollar and Point-based Award Products: https://connect.blackhawknetwork.com/publically-accessible-reference-documents/hawk-incentives-partner-operations-manual-us-products/

y) For Business Funded Canadian Dollar Award Products: https://connect.blackhawknetwork.com/publically-accessible-reference-documents/hawk-incentives-partner-operations-manual-canadian-products/

z) For Consumer Funded Gift Products: https://connect.blackhawknetwork.com/publically-accessible-reference-documents/bhn-ecommerce-distribution-partner-operations-manual.

viii. Single Merchant Cards may only be resold by Client if the following conditions are satisfied: (a) no cash may be accepted as a form of payment, (b) Client must employ policies and procedures reasonably designed to prevent the sale of more than $10,000 worth of Single Merchant Gift Cards in any one day to any one natural person, and (c) if Client sells more than $10,000 worth of Single Merchant Gift Cards in any one day to a business for further distribution to the end user of the Cards, Client shall verify that the entity buying the Cards is, in fact, a legitimate business, and shall retain records of that verification for the longer of (i) seven (7) years or (ii) five (5) years after the expiration of the program through which the Cards are distributed.

8. E-Mail Delivery of Virtual Codes.

a. Client shall not provide any e-mail address to Blackhawk for delivery of virtual codes by Blackhawk without obtaining the consent of the intended recipient of such e-mail, and Client shall not submit an e-mail address for any individual that has opted-out of receiving e-mails from Client. Client shall be responsible for complying with any Applicable Laws regarding sending of commercial e-mails and, in requesting delivery of virtual codes via e-mail, shall be considered the sender of such e-mails.

b. Client shall retain records of any consents to receive electronic messages and shall provide such records upon request from Blackhawk.

c. Client shall ensure that information submitted to Blackhawk for the content and delivery of any e-mails generated in connection with the delivery of virtual codes is accurate, not deceptive and complies with applicable law. Client shall submit accurate contact information that a recipient can utilize to opt-out from receiving future e-mails from Client, in compliance with applicable law. If Client does not provide information allowing recipients to unsubscribe, Client represents and warrants that such unsubscribe information is not required under applicable law, and Client assumes all liability for such determination.

d. In addition to the indemnification provisions under the Agreement, Client expressly agrees to indemnify Blackhawk for any Claims or Damages arising from Client’s failure to comply with this subsection.

9. Representations and Warranties.

a. Each Party represents and warrants that it is authorized to enter into this Agreement and that this Agreement does not violate or breach any other agreement to which it may be a party.

b. Each party represents and warrants that its performance under this Agreement shall be accomplished by qualified personnel in a professional, workmanlike manner, consistent with the prevailing standards of the industry.

c. Each party represents and warrants that its performance under this Agreement is and shall be in compliance with Applicable Law throughout the Term of this Agreement; provided, however, that neither party shall be liable for noncompliance to the extent that such noncompliance was caused by (i) the actions or inactions of the other party or (ii) to the extent that the other party assumed, in writing, the responsibility for compliance.

d. Each party represents and warrants that its use and disclosure of personal information of Participants does and shall continue to comply with all applicable foreign, federal, state, and local laws and regulations relating to the protection of such information. Consistent with the foregoing, Client represents and warrants that any such personal information which Client provides to Blackhawk or otherwise makes available to Blackhawk is not the subject of any applicable “opt out” election by a Participant and that Client has obtained any necessary approvals or consents from Participants prior to sending, disclosing, or making available (including without limitation inviting Participants to join a promotion or program) personally identifiable information of such Participants to Blackhawk.

e. Client represents and warrants that Client shall be solely responsible for compliance with, and for ensuring that Client’s promotions or programs are structured in compliance with, all applicable foreign, federal, state, and local laws and regulations governing Client’s industry, business, promotion, or program, including without limitation all consumer protection, promotion, and sweepstakes laws and regulations. Client shall be solely responsible for compliance with any applicable foreign, federal, state, and local laws and regulations regarding advertising which may be used by or for Client in support of its promotions or programs. Client further represents and warrants that any Client Content (as defined in Section 11, below) shall not infringe on the rights (including without limitation the intellectual property rights) of any person or entity.

f. THE PARTIES AGREE THAT THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, AND HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT.

10. Limitation of Liability and Indemnification.

a. Limitation of Liability. Except for Blackhawk’s obligation to indemnify Client as set forth herein, any claims involving Blackhawk’s liability to the Client for damages (regardless of the form of action, whether in contract, tort, warranty or otherwise) shall in no event exceed the amount of net fees (not including face value of Cards) paid to Blackhawk during the 12 months preceding any judgment against Blackhawk. EXCEPT FOR EACH PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY AS SET FORTH IN SECTION 10, AND TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ANY CARD ISSUER IS LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY AND ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE AND WHETHER BASED IN CONTRACT, TORT OR OTHERWISE. Blackhawk shall not be liable for unauthorized access to or alteration, theft or destruction of Client's data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of Blackhawk' gross negligence or intentional misconduct. Client acknowledges that Blackhawk has set its prices and entered into this Agreement in reliance on the limitations of liability and damages and disclaimers of warranties herein and that they form an essential part of the bargain between the Parties. The Parties agree that such limitations and disclaimers will survive and apply in all circumstances.

b. Indemnification. Each party agrees to indemnify, defend and hold the other party and its subsidiaries and affiliates (including all officers, directors, employees, contractors and agents of the foregoing) harmless from and against any and all third party claims, demands, suits, causes of action, subpoenas and discovery requests (collectively “Claims”) and any damages, liabilities, losses, costs and expenses, including attorneys’ fees incurred by the indemnified party as a result of such Claims, to the extent and proportion such Claims arise out of the indemnifying party’s (including but not limited to indemnifying party’s employees and subcontractors): (i) breach of its warranties, representations, covenants, or obligations under this Agreement; or (ii) gross negligence or intentional misconduct, except (in each instance of (i) or (ii)) to the extent of any indemnified party's negligence or intentional misconduct.

c. Indemnification Process. The indemnification obligations set forth above in this Section are contingent upon compliance with the following conditions by the indemnified party: (i) providing prompt written notice of a Claim to the indemnifying party; (ii) cooperating with the indemnifying party, including by providing all information and evidence within the indemnified party’s control which is necessary for indemnifying party to conduct a defense (the indemnifying party will reimburse the indemnified party for its reasonable expenses incurred in cooperation with and providing assistance to the indemnifying party); and (iii) providing the indemnifying party with sole control of the defense and all related settlement negotiations (however, the indemnified party may participate in the defense or settlement of the claim at its own expense). The indemnifying party may not settle any Claim without the indemnified party’s consent (which shall not be unreasonably withheld) if the proposed settlement would be in the indemnified party’s name or impose pecuniary or other liability or an admission of fault or guilt on the indemnified party or would require the indemnified party to be bound by an injunction of any kind.

11. Confidentiality

a. For purposes of this Section, "Confidential Information" means the terms of this Agreement and all information or material which (i) gives a receiving party or a third party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the party who owns the Confidential Information; or (ii) which is either (A) marked "Confidential," "Restricted," or "Proprietary Information" or other similar marking, (B) known by the parties to be considered confidential and proprietary, whether or not marked as such, or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary, whether or not marked as such. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; or (iii) is independently developed by the receiving party without reference to information received from the other party.

b. Unless otherwise provided under this Section, each party agrees to hold the other party’s Confidential Information in strict confidence in perpetuity. The parties agree not to make each other's Confidential Information available in any form to any person (other than to a party's employees, accountants, auditors, attorneys, subcontractors, or vendors that are obligated to hold the Confidential Information in strict confidence) or to use each other's Confidential Information for any purpose other than in furtherance of, or as specified or allowed in, this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information of either party is not disclosed or distributed by its employees, accountants, auditors, attorneys, agents or contractors in violation of the provisions of this Agreement. This Confidential Information Section supplements and does not supersede any existing non-disclosure or confidentiality agreements between the parties.

c. In the event any Confidential Information is required to be disclosed by a receiving party under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, or by a demand or information request from an executive or administrative agency or other governmental authority, the receiving party requested or required to disclose such Confidential Information shall, unless prohibited by the terms of a subpoena, order, or demand, promptly notify the disclosing party of the existence, terms and circumstances surrounding such demand or request and consult with the disclosing party (as requested by disclosing party) on the advisability of taking legally available steps to resist or narrow such demand or request. To the extent the receiving party is prohibited from notifying the disclosing party of a subpoena, order or demand, by the terms of same, the receiving party shall exercise its reasonable efforts to narrow the scope of disclosure.

d. Client’s Confidential Information shall remain the sole and exclusive property of Client, and Blackhawk’ Confidential Information shall remain the sole and exclusive property of Blackhawk.

i. Client Confidential Information will expressly include, and Client shall retain title to and all ownership rights in, any and all text, multimedia or images, data and the like provided by Client to Blackhawk for use in providing Services (“Client Content”). Client grants Blackhawk, during the term of this Agreement, a non-exclusive, royalty-free, sublicensable, revocable license to use Client’s name, Client Content, and those certain trademarks, service marks, or logos provided by Client to Blackhawk solely as necessary for the provision of Services by Blackhawk or its subcontractors under this Agreement and any Agreement. Blackhawk shall comply (and shall direct any subcontractors to comply) with guidelines provided by Client to Blackhawk regarding brand usage.

ii. Subject to Section 7(b), all Participant data collected by Blackhawk during the course of providing services under this Agreement (“Participant Data”) shall be the sole property of Client and will be considered Client Confidential Information. During the term of this Agreement, Client grants Blackhawk a non-exclusive license to utilize the Participant Data: (A) as necessary for Blackhawk to perform Services; and (B) solely with respect to non-Participant identifying information, in the creation of aggregate statistics, provided that such statistics are not: (i) Participant specific; and (ii) Client specific, and do not identify Client as the source of such statistics.

iii. Blackhawk acknowledges that it is responsible for the security of Participant data that it possesses or otherwise stores, processes, or transmits on behalf of Client. Further, Blackhawk acknowledges that it is responsible for the security of Participant data to the extent that Blackhawk has access to or could impact the security of the customer’s cardholder data environment.

e. Each party acknowledges that its breach of the provisions in this Confidential Information section will cause irreparable damage and agrees that the other party shall be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.

f. Blackhawk, as well as its vendors, suppliers, and providers, may obtain, use, disclose and otherwise process Personal Data (as that term is defined in the DPA) in the performance of the Services, as set forth in the Data Processing Addendum located at https://blackhawknetwork.com/b2b-data-protection-addendum (the “DPA”), which is incorporated herein by this reference. As further described in the DPA: (1) the address for assistance needed with Data Subject Requests is DL-GlobalPrivacyOffice@bhnetwork.com (this email address is confidential and should not made available to the public); and (2) notifications to Blackhawk regarding a Personal Data Breach shall be sent via e-mail to: DL-OCC@bhnetwork.com. The DPA also includes Exhibit 2 and Exhibit 3 to this Agreement.

12. Intellectual Property

a. General. Except with respect to Client Content or Participant Data, Blackhawk will retain title to and ownership of all designs, text, layouts, media, proprietary technology, documentation, systems, processes, works of authorship, software, hardware, or other proprietary materials utilized by Blackhawk in providing Services, any work product resulting from such Services (whether or not customized), and any inventions (whether or not patented) and copyrights associated with the foregoing (collectively, “Blackhawk Proprietary Materials”). Blackhawk or any of its Affiliates reserves the right to modify, add to or replace the Blackhawk Proprietary Materials at any time.

b. API License. If Client elects to place Orders via API, the use of such API shall be governed by the following:

i. Limited License. During the Term, Blackhawk grants Client a non-exclusive, revocable, non-sublicensable, non-transferable license to access and use certain Application Programming Interfaces (“APIs”) as may be provided by Blackhawk, solely to support the Services and activities related to this Agreement.

ii. Restrictions. Client is solely responsible for calling the Blackhawk APIs in its environment in accordance with the specifications provided by Blackhawk. No rights or licenses are granted except as expressly set forth herein. Client will not (and will not allow any third party to) use Blackhawk APIs in connection with any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. or Canadian embargo, unsolicited mass distribution of email (“spam”), multilevel marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, abusive or otherwise offensive content, stolen products or items used for theft, or other illegal purposes. Except as expressly authorized under this Agreement, Client may not (and will not allow any third party to) (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile, modify, alter or otherwise attempt to copy, access or create any source code which is included in or derived from Blackhawk APIs or the Blackhawk Platform, (ii) interfere with or disrupt the integrity or performance of, or attempt to gain unauthorized access to, the Blackhawk Platform or its related systems or networks or (iii) otherwise use Blackhawk APIs or Blackhawk Platform on behalf of any third party. “Blackhawk Platform” means the systems and technology used, controlled or licensed by Blackhawk, including, without limitation: (i) the architecture, design, and method of operation of such systems and technology; (ii) the Blackhawk APIs; (iii) other technology used by Blackhawk as part of the Services; and (iv) all methods, models, specifications, software, hardware, and other technology and information of any kind and in any form, and all Intellectual Property Rights relating to any of the foregoing.

iii. Suspension Rights. Blackhawk may suspend Client’s right and license to use the Blackhawk Platform (or any portion of the Blackhawk Platform, including suspension of Activations and provision of Gift Cards) for cause immediately upon written notice (email is sufficient notice) to Client, if: (i) Blackhawk determines that Client’s use of the Blackhawk Platform poses a security or service risk to Blackhawk; (ii) Blackhawk determines that Client has failed to comply with Applicable Law or Gift Card Terms and Conditions, (iii) Client is in material breach of its contractual obligations to Blackhawk or its Affiliates, (iv) a Blackhawk Issuer withdraws its authorization for Client’s sale of its Gift Cards, (v) Blackhawk determines there is evidence of fraud with respect to the Client Orders; or (vii) Client uses the Blackhawk Platform other than as expressly permitted in this Agreement.

iv. Ownership. Blackhawk owns and retains all right, title and interest in and to the Blackhawk Platform (including, without limitation, the Blackhawk APIs) and all improvements, derivatives and modifications thereto. Blackhawk or any of its Affiliates reserves the right to modify, add to or replace the Blackhawk APIs at any time.

v. Updates and Modifications. In the event that Blackhawk intends to modify, add to or replace the Blackhawk APIs, Blackhawk will endeavor to provide Client with sixty (60) calendar days’ advanced written notice of such change; provided, that Blackhawk may provide shorter notice or no advance notice if such modifications, additions or replacements are necessary to comply with Applicable Law, or to address any security breaches, potential security breaches, or similar urgent concerns. Client will modify its connection to the Blackhawk APIs as needed to comply with the modified, revised, added or replaced Blackhawk API by the effective date of such change. The Parties will cooperate and provide reasonable assistance to each other to test, resolve any issues and ensure the interoperability of Client connection to the Blackhawk Platform.

c. Branding Compliance. When applicable, Client shall adhere to any branding guidelines provided by Blackhawk and shall not distribute, either internally or to the public, any materials (including but not limited to advertisements, marketing materials, promotions, direct mail (including email), press releases, internet notices or web pages, brochures and posters) that refer directly or indirectly to Blackhawk, any prepaid card network, Blackhawk’ merchant partners, any prepaid card issuer (including the issuer of any gift card), or any trademarks, service marks, trade names, copyrights, or logos (“Marks”) of any of the foregoing, or any prepaid or gift cards, without prior review and written approval from Blackhawk. Blackhawk’ branding review is to ensure appropriate usage of Marks and should not be interpreted in any way as an approval of the elements of Client’s program or promotion, or that the program or promotion complies with Applicable Law.

d. Card Terms and Conditions. Client shall, at all times, accurately describe the terms and conditions of the Card(s), as applicable, not strictly those for branding purposes, and Client shall be solely liable for all costs, expenses and outcomes of descriptions of the Card(s) other than as approved by Blackhawk as defined herein. Client shall not market, advertise or promote the availability of Cards or the Program(s) under which they are distributed in any way that (i) is misleading or potentially misleading, or (ii) fails to clearly identify Program eligibility criteria or material terms and conditions of the Cards. Client shall not promote or market any Card as a "gift," "cash," "cash back" or a similar cash equivalent.

e. Costs. In addition to the indemnification provisions set forth herein, Client shall be fully liable for any cost associated with Client’s breach of this section including, without limitation, revised or corrected materials, destruction costs, replacement Cards or other replacements or returns, customer service costs incurred by Blackhawk as a result, legal fees incurred by Blackhawk for enforcement, and other fees, fines or penalties incurred by Blackhawk as a result of such breach.

13. General provisions

a. Governing Law and Dispute Resolution. Any claim, controversy, or dispute arising under or related to this Agreement 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 this Agreement or the alleged breach hereof will 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 will 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 arbitration will be shared equally by both parties.

b. Publicity. Client agrees that, during the Term of this Agreement, Blackhawk may list Client as a current client on Blackhawk’ web site and in Blackhawk’ promotional materials, may provide a general description of the products and services provided to Client by Blackhawk, and may use Client’s logo in association with such listing.

c. Language. The Parties have required that the terms and conditions and all documents relating thereto be drawn up in English. Les parties ont demandé que cette convention ainsi que tous les documents que s΄y rattachent soient rédigés en anglais.

d. Export Controls. The parties will comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States, Canadian, or foreign agency or authority. Neither party will export, or allow the export or re-export of any Blackhawk Proprietary Materials or any other technology in violation of any such restrictions, laws, or regulations.

e. Entire Agreement. This Agreement, including any written nondisclosure agreement previously executed by the parties, constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements or understandings relating thereto. Any client-issued purchase order(s), vendor enrollment forms, or other similar documentation provided by Client shall be for informational purposes only and shall not alter or override the terms of this Agreement. If any term of this Agreement conflicts with any terms and conditions provided by Client, THEN ACCEPTANCE OF CLIENT’S ORDER IS MADE ONLY UPON THE EXPRESS UNDERSTANDING AND CONDITION THAT THE TERMS AND CONDITIONS HEREIN SHALL GOVERN AND CONTROL THE AGREEMENT BETWEEN CLIENT AND Blackhawk, unless the Parties expressly agree otherwise, in a writing executed by authorized representatives of both Parties. Blackhawk’ failure to object to provisions contained in any communication from Client shall not be deemed a waiver of or a modification to, any terms and conditions of this Agreement. No rights or obligations other than those expressly recited herein are to be implied from this agreement. This Agreement may be executed in several counterparts, any of which may be transmitted or received via facsimile, and each counterpart shall be deemed an original instrument. All such counterparts together shall constitute a single agreement.

f. Assignment. Neither party may transfer or assign this Agreement or its obligations under this Agreement, in whole or in part, without the prior written consent of the other party (which consent shall not be unreasonably withheld); except that Blackhawk is permitted to assign to an Affiliate, or a purchaser of all or substantially all of Blackhawk’s assets used in connection with performing this Agreement without prior notice or consent. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and to their respective successors and permitted assigns.

g. Modification. This Agreement may not be modified, unless such modification is properly accepted by both parties as evidenced by a writing signed by both parties.

h. Subcontractors. For purposes of this Agreement, Blackhawk may fulfill its obligations under this Agreement through its authorized subcontractors.

i. Survival. Those Sections of this Agreement whose obligations would normally extend beyond a termination of this Agreement shall so survive the termination of this Agreement.

j. Third Party Beneficiaries. Except for any Issuer whose Cards are distributed under this Agreement, no consumer, or any other third party is beneficiary to this Agreement.

k. Notice. Any and all notices provided for herein shall be in writing and shall be delivered, using the information provided below each party’s signature block, either: (i) personally, (ii) by certified mail through the USPS, or (iii) via national overnight courier. The date of notification shall be the date of actual delivery or the relevant writing, except that a notice transmitted by certified mail shall be deemed received three (3) days after postmark. Either party may from time to time change its address for receiving notices or other communications by providing notice to the other in the manner provided in this subsection.

l. Independent Contractors. Each party agrees that (a) the relationship between them is that of two principals dealing with each other as independent contractors, (b) neither shall have the right, power or authority at any time to act on behalf of or to represent the other, and (c) except as expressly set forth in this Agreement, each party shall be separately and entirely liable for its own debts and liabilities in all respects.

m. Force Majeure. Neither party shall be liable for any delay or failure to perform (other than the payments due under this Agreement) due to any cause or condition beyond such Party’s reasonable control whether foreseeable or not including, without limitation, acts of God, war, riot, fire, explosion, accident, acts of terrorism, seasonality, the acts or omissions of any third party, and unforecasted volume. Any orders of Cards so affected shall be suspended for the duration of the delay. Either Party may, by prior written notice, terminate an order for Cards if delivery is delayed more than ten business days due to causes covered by this Section.

n. Severability and Waiver. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement will not be affected thereby and shall be binding upon the parties and will be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. The failure of either party to insist upon strict performance of any of the provisions contained in this Agreement will in no way constitute a waiver of its rights, at law or in equity, or a waiver of any other provisions of this Agreement or subsequent default by the other party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.

o. Headings. The headings of this Agreement are intended solely for convenience of reference and will be given no effect in the interpretation or construction of this Agreement.

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A to Card Order Agreement

Amazon Agreement Acknowledgement

This Amazon Agreement Acknowledgement is accepted by Client (“You,” or “Your”). You and Blackhawk (“Blackhawk,” or “We”) are parties to an electronically-accepted Card Order Agreement (the “Agreement”), to which this Amazon Agreement Acknowledgement is attached. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Agreement.

Certain Card Issuers require that Blackhawk request from its clients a separate agreement (“Agreement Acknowledgement”). In order to allow Blackhawk to provide You with Amazon.com-branded Cards (the “Amazon Cards”), the Issuer, ACI Gift Cards, Inc., a Washington corporation (“ACI”) and Amazon Fulfillment Services, Inc., a Delaware corporation (“AFS” and with ACI, collectively “Amazon”) require that We secure an Agreement Acknowledgment from You. The terms and conditions set forth below comprise what Amazon requires in an Agreement Acknowledgement. In the event that there is any conflict or inconsistency between the Agreement and this Agreement Acknowledgement, the provisions of this Agreement Acknowledgement shall control, unless specifically amended herein.

Notwithstanding anything to the contrary in the Agreement, and in consideration for Blackhawk’s services to you with regard to the Amazon Cards, You hereby acknowledge and agree to be bound by and comply with the following terms and conditions with regard to Amazon Cards:

a) Other than as contemplated in the Agreement, You will not resell any Amazon Cards;

b) All Amazon Cards are subject to the Amazon general terms (as defined and identified by Amazon at https://www.amazon.com/gp/help/customer/display.html?nodeId=202120960 or any location designated by Amazon in the future). Amazon reserves the right to void or reject any Amazon Cards for redemption that is suspected to have been obtained or created by fraud, deception, data breach, account compromise, or any other improper or illegal conduct (each, a "Security Incident"). You will make the Amazon general terms available to recipients of Amazon Cards in a manner and form as provided by Blackhawk, the required form of which is directed by Amazon;

c) You will maintain (and require that your Purchasers, if any, maintain) administrative and technical safeguards and other security measures consistent with current industry best practices to protect the security and confidentiality of Amazon Cards, associated serial numbers, your Blackhawk account credentials, any API access credentials, and any other information that you receive or use under the Agreement from threats or hazards to its security and integrity, accidental loss, alteration, or disclosure. Additionally, after you distribute any Amazon Cards to your Purchasers or Participants, you must securely delete and/or remove the associated Amazon claim codes from all of your electronic and physical systems. You will inform us immediately if you discover or suspect a Security Incident involving Amazon Cards.

d) You will not (and will require that your Purchasers, if any, not) sell, lease, or rent the information that an individual is a Participant or a Participant is an intended user of the Amazon Site(s) for any purpose, or use such information for purposes of sales, promotion, or advertisement of any kind to any Participant. Nothing in this Section will prevent you or any Purchaser from conducting marketing activities based solely on information independently acquired or developed by you or any Purchaser through activities unconnected to the Agreement.

e) You (and your Purchasers, if any) will not (a) charge any fees to a Participant in connection with the use or distribution of Amazon Cards, (b) resell any Amazon Card to a Participant for more than its redemption value, or (c) misrepresent the Redemption Value of any Amazon Card.

f) You will not use ACI Marks except in accordance with Amazon’s Brand Use Requirements (found at https://www.amazon.com/corpgcbrand or any location designated by Amazon in the future) and as is expressly permitted by Blackhawk which is directed by Amazon;

g) You will not (and will require than any Purchaser does not) claim any Amazon Cards to your (or any Purchaser's) own account to procure goods or services from the Amazon Sites.

h) If you (or any Purchaser) is a participant in the Amazon Sites Associates Program, then you (or such Purchaser) may not purchase, redeem, suggest, or direct any Purchasers or Participants to use or redeem Gift Cards or Claim Codes through that program.

i) You will submit any advertisement or promotional material or other related content created by You in connection with Your advertising or distribution of Amazon Cards (“Placements”) to Blackhawk for review, and must obtain Blackhawk’s prior written consent prior to using any such Placement. You will not use the Amazon brand to disparage Amazon, its products or services, or its partners in any manner which it believes, in its sole discretion, may diminish or otherwise damage or tarnish Amazon’s goodwill.

j) You permit the disclosure by Blackhawk of Your information as necessary for Blackhawk to fulfill its reporting obligations under its agreement with Amazon. “Your information” means Your name, a description of Your use of Amazon Cards, the sales price of Amazon Cards offered by You, sales figures relating to the sale of such Amazon Cards from You (including breakdown by geography and location), a description of advertisements or other promotional materials created in connection with Your advertising or distribution of Amazon Cards, the identifiers of Amazon Cards sold by You, and such other information as Amazon may reasonably request. In the event Amazon requests information related Your Purchaser that Blackhawk does not already have, including its name, use of the Amazon Cards, sale price of the Amazon Cards, sales figures relating to the sale of such Amazon Cards (including breakdown by geography and location), a description of advertisements or other promotional materials created in connection with the advertising or distribution of Amazon Cards, the identifiers of Amazon Cards sold by You, and such other information as Amazon may reasonably request, you shall provide such information within seven business days, and you agree that Blackhawk may disclose that information to Amazon as required by Amazon.

k) You disclaim, to the extent permitted by Applicable Law, all warranties and any liability by Amazon or its Affiliates for any damages, whether direct, indirect, incidental or consequential, arising from the sale, resale and distribution of any Amazon Cards. Notwithstanding, this section (k) does not apply to any claim that Client may have directly against Amazon and does not apply to any warranty or liability that Amazon has agreed to under a separate agreement or arrangement with You. Further, in the event Amazon ceases to carry forth its responsibilities as issuer of the Amazon Cards sold by You, then Blackhawk and You will collaborate to seek available remedies, including using remedies available in Blackhawk’s agreement with Amazon. For the avoidance of doubt, You acknowledge that Blackhawk is not required to or liable for refunds associated with Amazon Cards, except as required by or liable for under the Agreement; and

l) You will defend and indemnify Amazon and its Affiliates (and each of their respective employees, directors and representatives) from and against any and all Losses arising out of any Claim against ACI, its Affiliates, or any of their respective employees, directors and representatives to the extent such Claim is based on (i) any failure by You to provide or disclose the full terms, conditions and restrictions applicable to Amazon Cards as provided to You by Blackhawk, (ii) Your marketing, promotion and distribution of Amazon Cards (except to the extent attributable to the ACI Marks), (iii) any violations of Applicable Law by You or Your employees or agents, and (iv) any violation of Your obligations or terms in the foregoing Sections (a) – (k) of this Agreement Acknowledgement.

m) You agree that ACI and its Affiliates are third party beneficiaries to this Agreement Acknowledgement.

Exhibit 2 to the Card Order Agreement

DATA PROCESSING DESCRIPTION AND
INITIAL RECORD OF PROCESSING

This Attachment is part of the DPA and includes certain details of the Processing of Personal Data. Capitalized terms are defined in the DPA.

Purpose and duration of the Processing of Personal Data

The subject matter and duration of the Processing of Personal Data are set out in the DPA and the relevant Agreement, and the obligations and rights of Blackhawk Network and its Affiliates are set forth in the DPA, however for purposes of reporting, the following descriptions may be used: The Vendor will process the below-identified consumer information in order to fulfill prepaid reward card orders, service cardholders, and provide associated services.

Data Subjects

The Data Subjects wh

ose Personal Data is required to be processed as an essential part of delivering the Services described above could include any of the following:

1. Consumer customers (customers of Customer; Customer is Controller);

2. Consumer customers (customers of Third Party; Third Party is Controller);

3. Consumer customers where there are multiple/joint Controllers;

4. Employees of Customer (Customer is Controller); or

5. Employees of Third Party (Third Party is Controller).

Personal Data

1. Consumer Name (consumer customer of the Customer)

2. Consumer Street Address

3. Consumer Postal Code

4. Consumer Email Address

5. Consumer Phone Number

6. Employee Name (employee of the Customer)

7. Employee Mailing Address

8. Employee Phone Number

9. Employee Work Email Address

10. Employee Personal Email Address

Exhibit 3 to the Card Order Agreement

SUBPROCESSORS

As of the effective date of the Agreement, the sub-processors listed below may support the performance of the Services in accordance with the Agreement and pursuant to the terms of the DPA. The identified sub-processors will provide the identified services and nature of processing in the United States until the Personal Data is deleted pursuant to the Agreement or Section 5 of the DPA.

1. Amazon Web Services: Infrastructure as a services for data storage;

2. Arroweye Solutions, Inc.; Card Fulfillment

3. Fidelity Information Services; Card Fulfillment

4. Fiserv Solutions; Card Fulfillment

Vendor may periodically make available its then-current list of sub-processors through a link on its website (e.g., via the Privacy Policy, or otherwise), and Vendor notifications about changes to its sub-processors will be made via posting the list at that location.