The following Reports Terms and Conditions shall only apply to Managed Services – Order Forms that specifically refer to these Report Term and Conditions.
- Reports. Subject to Client’s fulfillment of its obligations under the Agreement and subject to the terms of this Agreement, Affinity Solutions, Inc. (“Affinity”) will provide the entity specified in the applicable Order From (“Client”) the services and deliverables described in the Order Form (such services and deliverables, collectively the “Reports”). Client may use the Reports only for its internal business purposes to evaluate the effectiveness of its marketing campaigns that are the subject of the Reports and for no other purposes. Without limiting the foregoing, Client will not, at any time, directly or indirectly: (i) modify, or create derivative works of the Reports or any derivative thereof, in whole or in part; (ii) attempt to reverse engineer, de-identify, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the sources of the Reports or any derivative thereof, in whole or in part; (iii) remove any proprietary notices from the Reports or any derivative thereof; or (iv) use the Reports or any derivative thereof in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any corporation, company, business, group, partnership or other entity or individual (each, “Person”), or that violates any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of rule of law of any federal, state, local or foreign government or political subdivision thereof, or any court of competent jurisdiction (“Law”); and/or (v) use the Reports in connection with a Restricted Industry.
- Client Responsibilities. Client will provide Affinity with information as required by Affinity to provide the Reports. Client grants Affinity a non-exclusive, royalty-free license to use and copy the content and other data provided to Affinity by Client in connection with and to provide the Reports. (“Client Data”).
- Marketing. Client will not use or refer to Affinity or its Marks (as defined below), business, products or services without Affinity’s prior written approval.
- Fees and Payment.
(a) Fees. Client will pay Affinity the fees (“Fees”) specified in the Order Form, without offset or reduction. All Fees referred to in the Order Form are in United States dollars, and non-refundable. Any amount payable under this Agreement and not paid as set forth herein will accrue interest at the rate of 1.5% per month or at the maximum lesser rate allowed by law. Client will pay Affinity all such interest and costs of collection, including attorneys’ fees and court costs.
(b) Invoices. Unless otherwise specified in the applicable Order Form, Client will pay Affinity the Fees, within thirty (30) days of Affinity’s invoice therefor.
(c) Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of handling fees, taxes and similar assessments. Client is responsible for all handling fees, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Affinity’s net income.
(a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all pricing, as well as business and marketing plans, technology and technical information, Reports plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliates, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this “Confidential Information” section.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Intellectual Property. As between Client and Affinity, Client will own all Client Data. Affinity will own all Reports and all intellectual property rights in and to the Reports, other than Client Data upon which the Reports are based. Client’s rights in the Reports are limited to the use rights provided in this Agreement and nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any right, title, or interest in or to the Reports or otherwise. Any suggestions, enhancement requests, recommendations or other feedback relating to the Reports that Client, its employees, agents or contractors provide to Affinity (“Feedback”), will be owned exclusively by Affinity and Client hereby irrevocably assigns to Affinity all right, title and interest in and to the Feedback. If for whatever reason Client cannot assign such rights to Affinity, then Client hereby grants Affinity an exclusive, royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate and use Feedback in any manner that Affinity choses. Affinity has no obligation to use any Feedback or to provide any credit or attribution to Client or pay Client any amount for any Feedback.
- Representations and Warranties.
(a) Each party represents, warrants and covenants to the other party that: (i) it will comply with all applicable Laws in connection with its performance and exercise of this Agreement; (ii) this Agreement has been validly executed that it constitutes the legal, valid and binding obligation of such party enforceable against such Party in accordance with its terms; and (iii) it has all requisite rights, power and authority to enter into this Agreement and to perform its obligations under this Agreement.
(b) By Affinity. Affinity provides the Reports as-is and without warranty, representation or guarantee of any kind or nature.
(c) By Client. Client represents and warrants that it is not (and will not use the Reports in connection with): (i) any Person listed as a Specifically Designated Nation on the Office of Foreign Asset Control (OFAC) website (https://www.treasury.gov/ofac/downloads/sdnlist.txt), (ii) any Person on any Alert List previously provided by Affinity to Client (“Alert List” means any list shared by Licensor that identifies entities operating in industries to which Licensor’s data providers restrict sharing of their respective data), (iii) any Person acting as a marijuana dispensary, (iv) any Person providing inappropriate adult content websites and/or adult type telephone, dating, or escort services, (v) any Person that is a weapons dealer, seller or distributor with the exception of national brand retailers who may sell recreational firearms (e.g., Bass Pro Shops, Walmart, etc.), (vi) any Person that competes with Affinity, including 1010Data, American Express, Argus/Verisk, Facteus/ARM Insights, Cardlytics, Commerce Signals/Verisk, Earnest Research, MasterCard, MScience, Nielsen, Second Measure, Visa and Yodlee (Affinity will provide Client with timely notice of any change(s) to this list), (vii) any Investment Companies (including hedge funds), defined as major institutional investors in accordance with the definition stated in SEC Rule 15a-6 as any institutional investor with total assets or assets under management in excess of one hundred million dollars ($100,000,000) whose primary business is trading securities or recommending securities for trading (unless otherwise agreed to by both Parties in advance in writing), provided that such restriction does not apply to private equity firms, real estate firms (e.g., REITs), retailers and other types of companies other than Investment Companies as defined herein, (viii) any Person engaged in the sale or distribution of explosives, weapons, illegal drugs/pharmaceuticals, shocking/sensational/disrespectful or violent content, tobacco and nicotine, or (ix) any Person engaged in illegal gambling.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLIENT ACKNOWLEDGES THAT THE REPORTS ARE PROVIDED “AS IS” AND THAT AFFINITY DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY THE REPORTS WILL MEET CLIENT’S REQUIREMENTS, THAT THE REPORTS WILL BE ERROR FREE, OR THAT REPORT DEFECTS ARE CORRECTABLE.
- Indemnification. Each party (in such capacity, the “Indemnifying Party”) will defend, indemnify and hold harmless the other party, its affiliates, and each of their respective officers, directors, representatives, employees, contractors, Clients and agents (each an “Indemnified Party”), from and against all losses, liabilities, damages and expenses (including reasonable attorneys’ fees) resulting from third party claims against them (“Damages”) that arise from or relate to any breach by the Indemnifying Party of any of its representations, warranties or obligations set forth in this Agreement. The Indemnifying Party has the right to select its own legal counsel and experts and to solely control the defense in any negotiations or litigation pertaining to a claim. Notwithstanding the foregoing, the Indemnified Party (i) may participate at its own expense in the defense and any settlement discussions, including appointing its own attorney, and (ii) will cooperate with the Indemnifying Party as reasonably requested by and at the expense of the Indemnifying Party. The Indemnifying Party will not settle any claim without the Indemnified Party’s prior written consent unless that settlement includes a full and final release of all claims against the Indemnified Party and does not impose any obligations on the Indemnified Party.
- Limitations of Liability. EXCLUDING ANY BREACH OF SECTION 5 AND CLIENT’S OBLIGATION TO PAY THE FEES AS SET FORTH HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY LOST PROFITS, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. EXCLUDING THE ANY BREACH OF SECTION 5, AND CLIENT’S OBLIGATION TO PAY THE FEES AS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO AFFINITY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Suspension. Term; Termination. This Agreement is effective as of the Effective Date above and will continue to be in full force and effect unless terminated as set forth herein (the “Term”). Affinity may suspend its performance under this Agreement at any time if it has reasonable concerns or actual knowledge that Client is in breach of any of the limitations, restrictions or obligations set forth herein. Either party may terminate this Agreement as set forth herein, including as follows: (a) at any time in the event of a material breach by the other party, which breach is not cured within thirty (30) days after receipt of written notice of such breach; or (b) at any time on ninety (90) days prior written notice. Expiration or termination of this Agreement for any reason will not relieve or release Client from any obligations or liabilities that it has incurred under this Agreement prior to the date of such termination. Neither party will have any resulting obligation or liability to the other party by reason of any termination of this Agreement in accordance herewith.
- Remedies. Except as expressly set forth in this Agreement, the rights and remedies provided herein are cumulative and not exclusive of any rights or remedies to which a party would otherwise be entitled.
- Governing Law; Jury Trials. This Agreement will be governed by the laws of the State of New York without reference to conflict of laws principles. Each party irrevocably and unconditionally consents to submit to the exclusive jurisdiction and venue of the courts of the State of New York and any federal courts located therein for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. Both parties agree to waive any right to have a jury participate in the resolution of a dispute or claim between the parties arising out of or connected to this Agreement.
- Survival. Any right or obligation of the parties in this Agreement which by its terms or nature and context is intended to survive termination or expiration of this Agreement will survive termination or expiration of this Agreement.
- Notices. Except as otherwise provided herein, any notices or demands that are required by Law or under the terms of this Agreement will be given or made by Affinity or Client in writing and will be given by hand delivery, receipted overnight courier service or similar communication, or by certified or registered mail (return receipt requested), and addressed to the respective parties set forth in the Order Form. Such notices will be deemed to have been given in the case of receipted overnight courier service or similar communications when sent, and in the case of certified or registered mail, on the third day after such communication has been deposited in the United States mail with postage prepaid.
- Independent Contractor Relationship. Each party is serving as an independent contractor to the other party under this Agreement. Nothing in this Agreement will be deemed or construed to create the relationship of partnership or joint venture between the Parties.
- Force Majeure. Except for the payment of Fees for Reports rendered up until the force majeure event, neither party will be liable to the other party for any loss or damage due to a delay in performing its obligations under this Agreement which results from any cause beyond such party’s control (without such party’s fault or negligence), including compliance with regulations, orders or instructions of any federal, state or municipal government or any department or agency thereof, acts of God, acts or omissions of the party or its employees or agents which are not contemplated in its performance of this Agreement, acts of civil or military authority, acts of terrorism, civil insurrection, strikes, embargoes, disease, war or riot.
- Counterparts. The Order Form may be executed in one or more counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument. Facsimile or electronic signatures constitute original signatures for purposes of the execution of the Order Form and any attachment or amendment.
- Assignment. This Agreement and the rights hereunder may not be assigned by either party without the consent of the other party, except that either party may assign this Agreement in the event of a change of control, acquisition, merger, sale of assets, sale of stock, reorganization or otherwise, to the acquiring or successor entity without the consent of the other party, provided however that the acquiring or successor entity is not a competitor of the non-assigning party. This Agreement will be binding upon and will benefit the Parties and their respective successors and permitted assigns.
- Amendment; Waivers. This Agreement will not be altered, amended, waived or modified except in writing and signed by each of the Parties hereto. No failure or successive failures on the part of either party to enforce any covenant or agreement, and no waiver or successive waivers on its part of any condition of this Agreement will operate as a discharge of such covenant, agreement, or condition, or render the same invalid, or impair the right of either party to enforce the same in the event of any subsequent breach or breaches by the other party.
- Severability. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction will not affect its legality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.
- Entire Agreement. This Agreement, together with the Order Form, contains the entire understanding of the Parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the Parties with respect to the subject matter hereof.