the Parties. The Parties mutually agree to increase the Incentive Fund upon determination
that the initial up-front funding amount is insufficient based on the volume of Incentive
Reward Payments made. Sapphire Digital shall 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 forth herein, and that the same form an essential basis of the bargain between
