made. Sapphire Digital shail have the right in its sole and reasonable discretion to cease the
processing of Incentive Reward Payments until sufficient funds are deposited into the Incentive
Fund. The Incentive Fund shall not bear interest.
6. Confidentiality. Any information provided to Customer that specifically references a Member’s name
or other individually identifiable information by Claims Administrator or Sapphire Digital regarding
Member’s use of the Program will be limited to information needed for tax reporting or financial
accounting purposes only. Except as set forth herein, no reporting regarding Program utilization and/or
performance provided to Customer by Sapphire Digital shall identify any individual Member. The
Parties acknowledge and agree that Customer is a Covered Entity (as defined under HIPAA) and
Sapphire Digital is a Business Associate (as defined under HIPAA) of Customer in connection with the
provision of services under this Agreement. The Parties agree that they will each perform their
obligations under this Agreement and with respect to the Program in compliance with all applicable
requirements of HIPAA. Sapphire Digital’s duties and responsibilities in connection with requirements
imposed by HIPAA are set forth in the Business Associate Agreement attached hereto as Attachment C.
7. Authority to Authorize Incentive Reward Payment. Sapphire Digital has the sole authority to
determine if the Member has complied with the terms of the SmartShopper Program requirements and is
eligible to receive Incentive Reward Payment(s), and to authorize or deny such payment based on
Sapphire Digital’s compliance and eligibility determination.
8. Cancellation. Each Party will have the right to terminate this Agreement if a Party breaches any
material term or condition of this Agreement and such breaching Party fails to cure such breach within
thirty (30) days after receipt of written notice of the same. Sapphire Digital reserves the right to cancel
the administration of the SmartShopper Program if any invoices are not paid within thirty (30) days of
receipt, for two (2) consecutive months. Subsequent to the termination of the expiration of this
Agreement, in addition to any administrative fees owed, Customer shall be responsible for reimbursing
Sapphire Digital all Incentive Reward Payments earned by Members prior to the termination or expiration
of the Agreement.
9. Intellectual Property. As between Customer and Sapphire Digital, Sapphire Digital retains all rights,
title and interest in and to all intellectual property rights and any and all technology developed or used to
provide the SmartShopper Program to Customer (collectively, the “Sapphire Digital IP”), and Customer
acquires no rights with respect to the Sapphire Digital IP, by implication or otherwise, except for those
expressly granted in this Agreement. Sapphire Digital shall own all data generated from the
Smartshopper Program, including any user registrations.
10. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (OR TO
ANY OTHER PERSON CLAIMING RIGHTS DERIVED THEREFROM) FOR CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING
WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR
OTHER SAVINGS, LOSS OF GOODWILL OR REPUTATION) OR LOSS OF DATA WITH
RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) ARISING FROM OR RELATING TO THE
SMARTSHOPPER PROGRAM, OR OTHERWISE ARISING FROM OR RELATING TO THIS
AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER
REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. Customer
acknowledges that the limitation of liability set forth in this Section 10 shall not apply to Sapphire
Digital’s claims for unpaid fees and that Sapphire Digital has set its prices and entered into this
Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set
