Last Modified: 7/17/2017 1. General 2. Submissions; Grant of Rights 3. Authority 4. Release 5. Publicity 6. Availability; Violation of Terms 7. Limitations of Liability 8. Disputes 9. Participant s Personal Information OptBlue ISO and Agent Testimonial program Terms of Participation Table of Contents 1. General: [The OptBlue ISO and Agent Testimonial program] with American Express (the Program ) is open to legal U.S. residents who are eighteen (18) years old or older who are employees or contractors of OptBlue Participants ( you, your or Participant ) who have a relationship with American Express through the OptBlue Program ( OptBlue Partners or company ) from American Express Travel Related Services Company, Inc. ( American Express ) and any of its subsidiaries and affiliated companies, its agents, partners and others working for them or on their behalf, including any of its sales channels (e.g., independent sales organizations, payment aggregators or direct sales channels) (collectively, the Permitted Parties ). References to you, your or Participant also include references to your company, where applicable. 2. Submissions; Grant of Rights: You grant American Express a royalty-free, irrevocable, perpetual, non-exclusive license to display, distribute, exploit, reproduce, modify, edit, publish, create derivative works, and otherwise use your image, picture, performance, likeness, voice, name, social media handle or avatar, your tenure as an employee or contractor of an OptBlue Partner, and/or your biographical information, along with any interviews and photographs of you (collectively, your Likeness ), the name of your company, the logo of your company, the city and state in which your company is located, and photographs of the exterior/and or interior of your company s premises, your company s tenure as an OptBlue partner (collectively, Company Information ), as well as any comments, endorsements, testimonials and/or statements made by you concerning American Express, American Express products or services, or your company (collectively, the Statements ), in whole or in part, on a worldwide basis, and to incorporate such into other works, in any form, manner, media or venue whatsoever (whether 1
now known or later developed), for any purpose, including for advertising, marketing and promotional purposes, including, without limitation, for use in internet materials, social media channels, digital materials, public relations and marketing materials, and any other advertising, marketing, sales, and promotional materials that American Express wishes to create or have created (collectively, the Materials ) and to include in, or use in connection with, such Materials any other materials that American Express in its sole discretion sees fit. American Express (or any of the other Permitted Parties) is not obligated to actually use your Statements, Likeness or Company Information (or any particular portion thereof) in any advertising materials or in any other manner, if American Express in its sole discretion chooses not to do so. If requested, you will sign any documentation required for American Express or its designees to make use of the non-exclusive rights you are granting to use the Submission. In order to participate, you must complete and submit the submission form with your story, along with an optional photograph (the Submission ). By uploading your Submission, you agree that it conforms to the Submission Guidelines and Content Restrictions as defined below (collectively, the Guidelines and Restrictions ). Submission Guidelines: The Submission must be in text format; Minimum of 260 characters in length; The Submission must be in English; The photo must be in.jpg,.gif, or.png format; The photo must not exceed 5 MB in size; and Each person may only submit a maximum of five (5) Submissions. Content Restrictions: The Submission must not contain material that violates or infringes another s rights, including but not limited to privacy, publicity or intellectual property rights, or that constitutes copyright infringement; The Submission must not feature brand names or trademarks other than that of American Express, which participant has a limited license to use to incorporate into his/her Submission for this Program; The Submission must not contain text not created by participant; The Submission must not contain text that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous; The Submission must not contain text that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age; and The Submission must not contain material that is unlawful, in violation of or contrary to the laws or regulations in any jurisdiction where Submission is created. 2
If you submit a photograph or yourself or the exterior/and or interior of your company s premises ( Photo ), you represent and warrant that: (i) you are at least 18 years old; (ii) you are the person featured in the Photo; (iii) no one other than you owns the copyright to the Photo; (iv) you have the necessary right and authority to submit the Photo and to permit the use of the Photo as described above, including, without limitation, permissions from any person who appears in the Photo or rights owners of any trademark, logo or other branding that appears in the Photo. You acknowledge and agree that the Permitted Parties reserves the right to request proof of these permissions in a form acceptable to American Express at any time. You also agree and acknowledge that Permitted Parties have the right (but not the obligation) to alter, modify, edit, shorten, or alter the Photo or Submission or otherwise combine the Photo or Submission with other materials, provided the general sense is not changed. You understand and agree that the Submission may be used in whole or in part and may be paraphrased, amplified, shortened, put in conversational form and/or dramatized, provided the general sense is not changed. You further agree, on behalf of yourself and your company, that neither you nor anyone else from your company shall have any right to approve the Submission or any elements of the Submission including without limitation, your Likeness, Statements, Company Information, or any use of the Submission. 3. Authority: You represent and warrant that: (i) you have all necessary rights and authority to enter into these Terms of Participation and to grant the rights specified herein; and (ii) the rights granted through these Terms of Participation do not conflict with any commitment on your part. You agree and represent (i) that your statements and Submission reflects your honest opinions, beliefs, and experiences with the OptBlue program and American Express and its products and services; and (ii) that such statements do not include representations about the OptBlue program and American Express or its products and services that are untrue, misleading, unsubstantiated or deceptive. You agree to notify American Express immediately if any of the statements or the Submission no longer represent your true and honest experience and opinions and, upon request, you also agree to confirm in writing that such statements or Submission accurately reflect your true and honest experience and opinions. If, during or after your relationship with an OptBlue Partner and American Express, you choose to discuss the OptBlue program and American Express or its services or products outside of this Program, you agree to disclose any material connection to American Express, including any incentives you may have received. These Terms of Participation are for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the parties hereto any legal or equitable rights hereunder. 4. Release: You agree to release and hold harmless the Permitted Parties and their respective subsidiaries, affiliates, suppliers, distributors, advertising/promotion agencies, offer suppliers, 3
and each of their respective parent companies and each such company s officers, directors, employees and agents (collectively, the Released Parties ) from and against any claim or cause of action, including, but not limited to claims of copyright infringement, defamation, disparagement, slander, false light, invasion of privacy or publicity or the like. You also release and hold harmless the Permitted Parties from any liability or claim, and agree that you shall not have any claim arising out of any use, exploitation, alteration, blurring, distortion, faulty reproduction, fictionalization, illusionary effect, or use in any composite form of the Submission, including your statements, Likeness or Company Information. You also release the Permitted Parties from and against any and all injuries, losses, costs, damages and expenses which you or anyone else from your company may suffer as a result of the creation, use or exploitation of the Submission. You hereby waive all claims against Released Parties and agree to indemnify them from any and all claims arising out of your breach of any of the above warranties. You agree to waive any right to inspect and approve the finished materials and nothing herein will constitute any obligation on the part of American Express to make any use of any of the rights granted herein. You acknowledge and agree that you will not be entitled to any compensation or consideration in connection with American Express use of the Submission (and your name and likeness as embodied therein) as permitted under these Terms of Participation. 5. Program Availability; Violation of Terms: American Express reserves the right to cancel, suspend and/or modify the Program, or any part of it, for any reason, including if any fraud, technical failures, human error or any other factor impairs the integrity or proper functioning of the Program, as determined by American Express in its sole discretion. American Express reserves the right in its sole discretion to disqualify any individual it finds to be tampering with the registration process or the operation of the Program or to be acting in violation of these Terms of Participation or any other promotion or in an unsportsmanlike or disruptive manner. Any attempt by any person to deliberately undermine the legitimate operation of the Program may be a violation of criminal and civil law, and, should such an attempt be made, American Express reserves the right to seek damages from any such person to the fullest extent permitted by law. American Express failure to enforce any term of these Terms of Participation shall not constitute a waiver of that provision. 6. Limitations of Liability: The Released Parties are not responsible for: (1) any incorrect or inaccurate information, whether caused by you, printing errors or by any of the equipment or programming associated with or utilized in the Program; (2) technical failures of any kind, including, but not limited to malfunctions, interruptions, or disconnections in phone lines or network hardware or software; (3) unauthorized human intervention in any part of the submission process or the Program; (4) technical or human error which may occur in the administration of the Program or the processing of submissions; (5) late, lost, undeliverable, damaged or stolen mail; or (6) any injury or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from participation in the Program. 4
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL AMERICAN EXPRESS, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR FOR ANY LOST PROFITS OR REVENUES, IN CONNECTION WITH OR ARISING OUT OF THE PROGRAM, USE OF THE SUBMISSION OR TERMS OF PARTICIPATION. 7. Disputes: This Program, all Submissions and these Terms of Participation shall be governed by and interpreted under the laws of the State of New York without regard to its conflicts of laws provisions. You hereby agree that any and all disputes, claims, causes of action, or controversies ( Claims ) arising out of or in connection with this Program, any entries or these Terms of Participation shall be resolved, upon the election by participant or American Express, by arbitration pursuant to this provision and the code of procedures of either the Judicial Arbitration and Mediation Services, Inc. ( JAMS ) or the American Arbitration Association ( AAA ), as selected by the participant. In addition to JAMS or AAA, Claims may be referred to any other arbitration organization that is mutually agreed upon in writing by participant and American Express, or to an arbitration organization or arbitrator(s) appointed pursuant to Section 5 of the Federal Arbitration Act, 9 U.S.C. Sections 1-16, provided that any such arbitration organization and arbitrator(s) will enforce the terms of the restrictions on arbitration provision set forth below. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM. FURTHER, NEITHER AMEX NOR PARTICIPANT WILL HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR OTHER PERSONS SIMILARLY SITUATED, OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT PARTICIPANT WOULD HAVE IF PARTICIPANT WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. The arbitrator s authority to resolve Claims is limited to Claims between American Express and you alone, and the arbitrator s authority to make awards is limited to awards to American Express and you alone. Furthermore, claims brought by either party against the other may not be joined or consolidated in arbitration with Claims brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in these Terms of Participation and without waiving either party s right to appeal such decision, should any portion of this provision be deemed invalid or unenforceable, then the entire provision (other than this sentence) shall not apply. 5
8. Participant s Personal Information: By participating in this Program, you agree to receive follow-up communications at the e-mail address and phone number you provide to American Express regarding this Program from or on behalf of American Express. For information about how we protect your privacy, please read our Privacy Statement (incorporated herein by reference): www.americanexpress.com/privacy. 6