RedAwning Perks Card Inclusion Terms & Conditions

EXHIBIT A

RedAwning.com Perks Card Inclusion Terms & Conditions

1. RedAwning Obligations

(a) RedAwning Perks Card: RedAwning will develop and sell a Perks Card to customers, which provides Perks Card purchasers (the “Members”) with a variety of benefits, including the Merchant Offer. RedAwning may also give Perks Cards to selected customers for Customer Service or other purposes, in RedAwning’s sole discretion.

(b) Promoting Merchant Offer. RedAwning shall promote the Merchant Offer to the Members in their welcome and other materials, as well as on its RedAwning.com website and through other RedAwning marketing channels, all as RedAwning may in its sole discretion deem appropriate. Only Members will be eligible to redeem the Merchant Offer.

(c) Perks Cards. RedAwning will issue each Member a numbered voucher and/or membership card (each a “Club Card”). In the case of Merchant Offers that are to be redeemed at the Merchant location, Members will be required to present their Club Card.

(d) Merchant Offer Sales. For Merchant Offers that are to be redeemed through RedAwning, RedAwning shall bill and collect all applicable fees and charges (together “Payments”) for the Merchant Offers ordered by Members, and complete any additional processing as per the Redemption Process in the Agreement.

(e) Remittance from RedAwning. Unless otherwise noted in the Redemption Process in the Agreement, for Merchant Offers to be redeemed by RedAwning, RedAwning shall remit to Merchant payments for sales of Merchant Offers in each calendar month during the Term at the Net Rates identified in the Agreement, as adjusted for any returns or cancellations in such month (together, the “Net Billing”), not later than the fifteenth (15th) calendar day of the following month. The Net Billing payment shall be accompanied by a report setting forth in reasonable detail the Payments and Credits comprising such amount.

2. Merchant Obligations

(a) Issuer. Merchant agrees and acknowledges that RedAwning markets and facilitates the purchase of the Merchant Offer, but that Merchant remains the provider and seller of the Merchant Offer. Accordingly Merchant agrees that it, and not RedAwning, is solely responsible for fulfillment of the Merchant Offer and any the related services to the Member in accordance with this Agreement.

(b) Fulfillment. Merchant agrees to honor and fulfill all Merchant Offers sold to Members in accordance with the terms of the Merchant Offer, the standard RedAwning Terms and Conditions posted on http://www.redawning.com, this Agreement, and any applicable laws. Merchant agrees to accept Club Cards in any form presented for redemption that has been approved by RedAwning, including, without limitation, a physical printout of the Club Card or by displaying the Club Card on a mobile device such as a smartphone at the point of service. Merchant agrees that in fulfilling the Merchant Offer, it will not require any payments or impose any conditions that were not disclosed to the Member in the terms of the Merchant Offer. Merchant shall not treat Members differently from other paying customers in the scheduling (e.g., use of blackout dates and times) or delivery of Merchant Offer, except as expressly set forth in the terms of the Merchant Offer. For Merchant Offers that require advance scheduling, Merchant shall use its best efforts to accommodate the scheduling request of Members. Except as expressly set forth in the Merchant Offer, Merchant shall permit Members to redeem Merchant Offers after the Expiration Date of their Club Cards for Merchant Offers which require advance scheduling if the Member contacts Merchant prior to the Club Card Expiration Date for the purpose of redeeming the Merchant Offer.

(c) Merchant Content. Merchant may be asked to provide a logo, photograph, or other marketing materials (“Merchant Content”) to be used in marketing the Club Card. Merchant hereby grants RedAwning a non-exclusive perpetual worldwide license to reproduce, use, display, perform, distribute, and create marketing materials including the Merchant Content for the purpose of developing, marketing, selling, distributing, and otherwise promoting the Club Card.

(d) Redemption Data. For Merchant Offers which are redeemed directly by the Merchant, Merchant shall collect and provide to RedAwning on a regular basis, no less frequently than monthly, a list of the Members who have redeemed the Merchant Offer. Merchant may provide this information in paper or digital form or other format as agreed with RedAwning.

3. Refunds

(a) Merchant agrees that RedAwning shall have the right to refund any amounts paid to purchase the Merchant Offer, if the Member subsequently cancels their purchase without receiving the Merchant Offer. Such refunds will be applied as a Credit against any amounts due for other Merchant Offer purchases.

4. Term of Agreement

(a) Term and Termination. The term (“Term”) of this Agreement shall be until the Redemption Expiration date, which shall match the term of the Club Cards being offered to Members. Upon expiration of the Term, the parties may renew this Agreement to incorporate later period Club Card sales with later expiration dates, upon the same or such different terms and for such period(s) as the parties may then agree in writing. This Agreement and the associated Merchant Offer may not be terminated before the Redemption Expiration Date by either party, except for breach by either party that is uncured for thirty days from notice of such breach by the other party.

5. Additional Terms and Conditions

(a) The Standard Terms and Conditions, attached hereto as Exhibit B, shall govern the performance and obligations of the parties under this Agreement, are in addition to the obligations set forth above, and are, by this reference, incorporated herein as though fully set forth.

EXHIBIT B

Standard Terms and Conditions

RedAwning and Merchant agree to the following Standard Terms and Conditions, which are in addition to the parties’ respective rights and obligations set forth in the RedAwning.com Perks Card Participation Agreement (the “Agreement”), and which by this reference are incorporated in such document as though fully set forth therein.

1. Representations and Warranties. RedAwning and Merchant each represent and warrant to the other (a) that it has the full right and legal authority to enter into the Agreement and grant the rights extended to the other party hereunder, (b) that its entry into and performance under the Agreement will not conflict with or cause a breach under any other agreement or obligation to which it is bound, (c) that it shall perform its obligations under the Agreement in accordance with all applicable laws, rules, regulations and ordinances, and (d) that its intellectual property assets used, employed or promoted in the performance of the Agreement shall not violate, misappropriate or breach any third-party intellectual property, privacy or publicity rights.

2. Use of IP. Except as expressly permitted in the Agreement, neither party shall be entitled to use the trademarks, logos, trade names, copyrights, proprietary ad copy or other intellectual property assets (together, “IP Assets”) of the other without such other party's prior written consent. Any permitted use by a party of the other party’s IP Assets pursuant to the terms of the Agreement shall terminate upon expiration or earlier termination of the Agreement, and all such use shall inure to the benefit of the owner thereof.

3. Insurance. At all times during the term of the Agreement, Merchant shall maintain general liability insurance coverage of a minimum of one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) annual aggregate through an insurance carrier with an A.M. Best’s rating of A or better. RedAwning shall be named as an additional insured on such policy(ies), and [Company Name] shall provide a certificate with such additional insured endorsement upon request by RedAwning. In no event shall such policy(ies) of insurance be modified or cancelled without providing RedAwning at least thirty (30) days written notice prior to the effective date of such cancellation or modification. [this section may apply to some and not others as a restaurant may not have liability coverage. Eddie – Look at Groupon standard terms or LS if we can find them regarding insurance requirements. Dave – Do we need to be named to be protected as that may create more issues?]

4. Indemnification. Each party shall defend, indemnify and hold the other party, its affiliates, subsidiaries, parent and related companies, officers, directors, agents, and employees (collectively, the “Indemnified Parties”) harmless from and against any and all third party claims, settlements, judgments, liabilities, damages, losses, suits and expenses of any nature whatsoever, including reasonable attorneys’ fees and costs, arising out of, based upon or in connection with any breach by the indemnifying party of its obligations or responsibilities under the Agreement, including any of its representations and warranties hereunder. In addition, Merchant shall defend, indemnify and hold the RedAwning Indemnified Parties harmless from and against any claims for injury to person or property or death, and all related claims, liabilities and damages, arising from or in any way related to the Merchant Offer. The indemnity obligations set forth herein shall survive termination or expiration of this Agreement.

5. LIMITATION OF LIABILITY.EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REDAWNING SHALL NOT BE LIABLE IN ANY WAY FOR THE MERCHANT OFFER. NEITHER PARTY WARRANTS AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THEIR RESPECTIVE COMPUTER SYSTEMS, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION OR DAMAGE OR DISRUPTION OF COMPUTER SYSTEMS OF ANY KIND. EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS AND A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS AND A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 4, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE TOTAL PAYMENTS GENERATED UNDER THIS AGREEMENT.

6. Amendment; Waiver. The Agreement constitutes the whole and entire agreement between the parties with respect to the subject matter hereof and it shall not be modified or amended in any respect, except by a written instrument executed by both parties. A waiver of a right or obligation may not be inferred or implied from conduct or course of dealing, but must be in a writing signed by the party to be bound.

7. Governing Law; Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions, and the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Alameda County, California. The prevailing party in any suit or proceeding brought to enforce or interpret the Agreement shall be entitled to an award of its reasonable attorneys’ fees, fees of other professionals and costs incurred therein.

8. Confidentiality. The parties agree that the terms of the Agreement are confidential and shall not be disclosed, except to the respective parties’ employees and agents who need to know or as may be required by law or legal process.

Notices. All notices required or permitted hereunder shall be in writing and may be personally delivered, sent by reputable overnight courier or certified mail, return receipt requested, or sent by email with electronic confirmation of delivery and in each case addressed to the parties at their respective addresses set forth in the Agreement or such other address as a party may provid