VIII. Indemnification.

Buyer agrees to indemnify and hold InComm, each Licensee, Issuing Bank, and each Provider and their respective Affiliates, directors, officers and employees ("InComm Indemnified Parties") harmless from and against all third-party claims, actions, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) ("Third Party Claims") relating to or arising in connection with Buyer's:

acts or omissions;
breach of its representations, warranties, covenants or obligations contained within this Agreement;
non-compliance with Provider Requirements; or
fraud, gross negligence or willful misconduct.

IX. Regulatory Compliance.

Buyer represents and warrants that all information it has provided to InComm and each Issuing Bank (which may include, without limitation, information regarding Buyer or its employees), is true, complete and accurate in all respects.
Buyer agrees to cooperate fully and otherwise promptly provide to InComm any and all relevant information with respect to Buyer, or its employees, as InComm may deem necessary to comply with Applicable Law (as defined below). "Applicable Law" means any and all foreign, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with) an arbitrator or governmental authority and mandatory written direction from (or agreements with) any arbitrator or governmental authority that are applicable to the issuance, sale, authorization or usage of the Prepaid Items, or otherwise applicable to any of the Parties.
Buyer acknowledges and agrees that InComm may verify all information provided to InComm by Buyer and screen such information against government databases as required by Applicable Law.
Buyer acknowledges that the Cards purchased hereunder are anonymous cards and that InComm has no knowledge as to whom Buyer will distribute the Cards or where such individuals reside. Therefore, each of Buyer and InComm acknowledge and agree that the unclaimed property and gift card laws of the jurisdiction where the Cards are shipped shall apply to the Cards. Buyer represents and warrants to InComm that Buyer not distribute any Card to any employee and other third party that Buyer has a reasonable basis to believe is engaged in illegal conduct. Buyer acknowledges and agrees that InComm reserves the right to deactivate all Cards purchased hereunder in the event InComm reasonably suspects that one or more of such Cards are being used or are likely to be used in connection with any fraudulent or other illegal activity. Buyer agrees that InComm shall not be liable for any losses or damages which may result from such action by InComm
When required by Applicable Law, InComm reserves the right to modify or discontinue, either temporarily or permanently, the services provided hereunder, including the distribution of Prepaid Items, as necessary to comply with Applicable Law. Buyer agrees that InComm shall not be liable to Buyer or to any third party for any necessary modification, suspension or discontinuance of this Agreement due to the change in Applicable Law.

X. Provider Requirements; Marketing/Merchandising of Prepaid Items.

Buyer acknowledges that the providers of the Prepaid Items ("Providers") may impose on Buyer certain requirements for the purchase, use and/or marketing or merchandising of the Prepaid Items, including, but not limited to, providing to Recipients the Terms (collectively, "Provider Requirements"). Buyer acknowledges that the Provider Requirements may be modified from time to time. Buyer will ensure each Recipient receives, materials provided by InComm and/or Provider to ensure compliance with Applicable Law and Provider Requirements. All merchandising or marketing materials created or used by Buyer or a Corporate Client (as defined in Section 16 below) in connection with the Prepaid Items must be approved by InComm and/or Provider. Buyer acknowledges that it may be required to complete and execute specific marketing agreements or other agreements as required by certain Providers in order to be eligible to purchase certain Prepaid Items.

XI. Credit Check Authorization.

Buyer hereby authorizes InComm and its agents to access all credit and other financial information relating to Buyer, and authorizes any third party possessing such information, including, without limitation, any credit reporting agency, to release the same to InComm or its agents.

XII. Dispute Resolution.

This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to that state's conflict of laws principles, and the Parties hereby irrevocably and unconditionally consent and submit to the personal jurisdiction of the United States District Court in the Southern District of Florida over all matters relating to this Agreement. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein.

XIII. Limitation of Time Period for Claims.

No action, claim, or proceeding by Buyer arising under or by reason of this Agreement or the purchase of the Prepaid Items pursuant to an Order shall be commenced or made by Buyer against InComm after the expiration of twelve (12) months from the date upon which the Prepaid Items described in such Order are first delivered to the Delivery Address.

XIV. Confidentiality

Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party and/or its suppliers (collectively, "Confidential Information"). All Confidential Information will remain the sole property of the disclosing Party. Each Party will maintain the strict confidentiality of the Confidential Information of the other Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the parties herein relating to this Agreement, and neither Party will disclose Confidential Information to any third party without the prior written consent of the disclosing Party. The following shall not be deemed Confidential Information:

information rightfully received from a third party without accompanying confidentiality markings or disclosure restrictions provided that to such Party's knowledge such third Party is not prohibited from disclosing such information to the receiving Party by a contractual, legal or fiduciary obligation to the other Party, its representatives or another Party;
information that is or becomes publicly available through no wrongful act of the receiving Party;
information that is already known by the receiving Party as evidenced by documentation bearing a date prior to the date of disclosure;
information that is approved for release in writing by an authorized representative of the disclosing Party; and
information disclosed pursuant to a valid court order or subpoena issued by a court of competent jurisdiction, provided that, to the extent not legally prohibited, the disclosing Party:

provides adequate notice to the other Party to appropriately object to such disclosure;
limits such disclosure to the extent practicable; and
makes such disclosure only to the extent required.

XV. Miscellaneous

Except for any payment obligations set forth herein, neither Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its non-monetary obligations hereunder if such failure, delay or non-performance results in whole or in part from Force Majeure. The term "Force Majeure" shall mean an event causing, or reasonably expected to cause an imminent delay in performance or failure to perform which is due to an event beyond the reasonable anticipation and control of a Party, and shall include, without limitation,

Acts of God, explosion, flood, hurricane, lightning, earthquake, or fire;
War or threat of war, sabotaging, riot, revolution, terrorist acts, civil disturbance or requisition;
Acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental authority not currently in effect upon the Effective Date of this Agreement;
import and export regulations or embargoes;
strikes, lockouts, or other industrial actions or trade disputes, or
explosion, blackouts or brownouts; any interruption or shortage of, or failure or delay in, transportation, utilities, material, supplies, equipment, machinery, or electrical power. Either Party desiring to rely upon Force Majeure as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice thereof to the other Party. Notwithstanding the foregoing, a Party seeking relief under this Section shall take all reasonable steps to mitigate the effects of such Force Majeure event and shall, as soon as practicable upon the cessation of such Force Majeure, resume its obligations hereunder.

Any reference to InComm in this Agreement shall hereinafter be deemed to also refer to InComm's Affiliates. During the Term, products and service provided to Buyer as set forth in this Agreement shall be provided by InComm or its Affiliates at InComm's discretion. All terms and conditions of the Agreement shall apply as equally to InComm's Affiliates as to InComm. For purposes of this Agreement, the term "Affiliate," wherever it shall be used, shall mean, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party. "Control" shall mean the possession, direct or indirect, of the power to vote more than fifty percent (50%) of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
Any terms stated, whether orally or in writing, by Buyer in any acknowledgment, purchase order, acceptance, instrument, etc., that are in addition to or in conflict with this Agreement shall not be binding on InComm and are expressly rejected.
Buyer agrees that InComm's sale of the Prepaid Items does not convey to Buyer any rights or licenses whatsoever, expressly or by implication, estoppel, or otherwise, with respect to any trademarks, trade names or other intellectual property rights related to the Prepaid Items. For the avoidance of doubt, Buyer acknowledges and agrees that it shall not use any trade name, trademark or other intellectual property of any merchant that may issue a Prepaid Item without the prior written consent of such merchant.
InComm may cure any default under this Agreement that InComm has been notified of upon receiving written notice from the Buyer within a reasonable period of time.
Buyer acknowledges and agrees that InComm may terminate this Agreement without penalty or further obligation in order to comply with Applicable Law or if required to do so by any governmental authority.
In the event that any part of this Agreement is deemed by a court of competent jurisdiction or governmental authority to be invalid or unenforceable, such provision shall be deemed to have been omitted from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.
All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive termination or expiration of this Agreement.
Except as limited by subsection (j) below, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in the Agreement will create or be deemed to create any third-party beneficiary rights.
The rights and obligations of each Party under this Agreement are personal and may not be assigned either voluntarily or by operation of law, without prior written consent from the other Party; provided that InComm may assign this Agreement to any entity that controls such Party, that is controlled by such Party or that is under common control with such Party, or that is a successor to substantially all of the operations of such Party without the consent of Buyer if the entity to which this Agreement is assigned is fully capable of performing the obligations hereunder of InComm to the same extent as InComm itself, and such entity agrees in writing to be bound by the terms hereof.
Neither Party shall be deemed to have waived any of its rights, power, or remedies hereunder except in writing signed by an authorized agent or representative of the Party to be charged. Either Party may, by an instrument in writing, waive compliance by the other Party with any term or provision of this Agreement. The waiver by a Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
This Agreement, together with all exhibits and schedules attached hereto, if any, constitutes the entire Agreement between the Parties and supersedes all prior agreements, understandings, and arrangements, oral or written, between the Parties with respect to the subject matter hereof. Notwithstanding any contrary provision contained herein, this Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Party against whom enforcement of any such modification or amendment is sought.
The headings, captions, headers, footers and version numbers contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Captions contained in this Agreement are for convenience only and do not constitute a limitation of the terms hereof. The singular includes the plural, and the plural includes the singular. All references to "herein," "hereunder," "hereinabove," or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms "include" and "including" are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.

XVI. Corporate Clients.

In the event Buyer has agreements with corporate clients (each, a "Corporate Client") and manages or supports the loyalty, award, or promotional programs of such Corporate Clients ("Corporate Client Loyalty Programs") for which Buyer wishes to distribute or have distributed the Prepaid Items, Buyer hereby agrees to the following additional terms and conditions.

Authorized Corporate Clients; Responsibility for Corporate Clients. Prior to Buyer reselling the Prepaid Items to any Corporate Client, Buyer must:

Provide InComm with such information as InComm may request regarding such Corporate Client; and
Obtain InComm's written approval prior to selling any Prepaid Items to such Corporate Client. Notwithstanding any provision to the contrary in this Agreement, Buyer may not sell the Prepaid Items to those Corporate Clients that InComm, in its reasonable discretion, determines would reflect poorly on InComm or the Providers.

Responsibility for Corporate Clients. Buyer shall be fully responsible for all Corporate Clients activities relating to the sale of Prepaid Items including each Corporate Client's compliance with Applicable Law and with all Provider terms and conditions, policies, and procedures associated with the Prepaid Items, and Buyer shall ensure that the Corporate Clients adhere to the terms and conditions of this Agreement. Any breach by a Corporate Client of the terms of this Agreement shall be considered a breach by Buyer. Buyer shall be responsible for all loss or theft of, or any fraud involving, the Prepaid Items sold to Buyer pursuant to this Agreement, other than that which is caused by InComm or its employees. Buyer assumes all risks of nonpayment or delay in payment by the Corporate Clients, and acknowledges Buyer's absolute, unconditional obligation to pay InComm for all amounts due with respect to sales of the Prepaid Items hereunder.
Representations, Warranties and Covenants. In addition to Buyer's representations, warranties, and covenants set forth elsewhere in the Agreement, Buyer further represents, warrants and covenants that:

All information regarding Buyer and/or its Corporate Clients, if any, provided to InComm by Buyer in connection with the purchase of the Prepaid Items is true and accurate in all respects;
It shall ensure its Corporate Clients have and maintain all necessary federal, state, and local licenses, permits, approvals, registration or other authorizations from all applicable state and federal regulatory and governmental authorities necessary to perform its obligations hereunder;
It shall cause its Corporate Clients to not re-sell, nor permit the re-sale of, any of the Prepaid Items;
Its Corporate Clients shall only use or distribute the Prepaid Items purchased hereunder for loyalty, award or promotional purposes and shall only distribute the Prepaid Items to participants of the Corporate Client Loyalty Program(s) in the United States, and
To the extent that any Corporate Clients handle consumer data, Buyer will ensure that its Corporate Clients comply with all applicable consumer privacy laws, data security laws and obligations, and any rules or regulations related to the safeguarding of consumer information.

Indemnification. In addition to Buyer's indemnification obligations elsewhere in the Agreement, Buyer agrees to indemnify, defend, and hold InComm Indemnified Parties harmless from and against all Third Party Claims relating to or arising in connection with each Corporate Client's:

Acts or omissions;
Breach of its representations, warranties, covenants or obligations contained within the Agreement;
Non-compliance with Provider terms and conditions, policies, and procedures associated with the Prepaid Items; or
Fraud, gross negligence or willful misconduct. Each agreement between Buyer and its Corporate Clients shall require such Corporate Client to waive all Third Party Claims against InComm and any Provider, distributor, or processor of the Prepaid Items, and Buyer shall indemnify the InComm Indemnified Parties against any and all Third Party Claims by Buyer's Corporate Clients with respect to the Prepaid Items and related services provided in this Agreement.

Under the Electronic Signatures in Global and National Commerce Act ("E-Sign"), this Agreement is legally binding in the same manner as are hard copy documents executed by hand signature. This Agreement shall be governed by the provisions of E-Sign.

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