Terms
and Conditions
These Terms and Conditions (the “Terms”) are incorporated into the Order Form (the “Order Form”). Together, these Terms and the Order Form form the entire agreement (the “Agreement”) between Merchant/Agency/Client (“Client”) and Affinity Solutions, Inc. (“Affinity”). If the Order Form and these Terms conflict, the Order Form controls.
- Services
The services and functions described in the applicable Order Form are referred to as the “Services.” If the scope of Services is expanded, revised, or modified, the Parties will prepare and sign an amended or new Order Form (or change order). - Payments
Client will pay Affinity the fees stated in the Order Form (“Fees”) without any offset or reduction. Fees are billed monthly in advance, and unless the Order Form says otherwise, payment is due within thirty (30) days of invoice. Any overdue amounts will accrue interest at 1% per month, or the maximum lower rate allowed by law. If payment is not made, Client will also be responsible for all collection costs, including reasonable attorneys’ fees and court costs. Affinity may suspend its services if Client does not pay amounts due on time. Client is responsible for all applicable handling fees, sales, use, excise, or similar taxes, duties, and charges imposed by government authorities on payments under this Agreement, except for taxes on Affinity’s net income. - 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 the Agreement and (ii) it has all requisite rights, power and authority to enter into the Agreement and to perform its obligations hereunder.
(b) Client represents, warrants, and covenants that it will not, at any time, directly or indirectly rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, resell, or otherwise make the Services, or any derivative thereof, available to any Restricted Industries. Restricted Industries include: (i) any person or entity listed as a Specifically Designated National or Blocked Person by the U.S. Department of Treasury’s Office of Foreign Asset Control (OFAC) (https://sanctionssearch.ofac.treas.gov/) or on the UK Sanctions List (https://www.gov.uk/government/publications/the-uk-sanctions-list); (ii) providers of inappropriate adult content websites, adult telephone services, dating services, or escort services; (iii) persons or entities engaged in the sale or distribution of explosives, illegal drugs or pharmaceuticals, or violent content; (iv) persons or entities engaged in illegal gambling; and (v) any agency of a foreign government.
(c) Except for the express warranties in this agreement, the services are provided “as is.” Each party disclaims all other warranties, express or implied, including warranties of merchantability or fitness for a particular purpose. Affinity does not warrant that the functions performed by the services will meet Client’s requirements, that the services will be error free, or that service defects are correctable. - Confidentiality
During the relationship established by the Order Form, each Party may disclose confidential or proprietary information to the other Party (“Confidential Information”), including (a) the existence and terms of the Order Form and (b) any personally identifiable information relating to any party’s employees or customers, including names, addresses and email addresses. Each Party shall hold the other Party’s Confidential Information in confidence, take all necessary precautions to protect it, not disclose it to any third party except as authorized in writing by the other Party, use it only to perform under the Order Form, and not remove or export it outside the United States. These obligations shall survive for four (4) years from the date of disclosure, except for personal data, for which the obligations shall be perpetual. - Data Security
Each Party shall, as applicable, implement and maintain safeguards that are (i) commercially reasonable, (ii) appropriate to the Party’s size and complexity, the nature and scope of its activities, and the sensitivity of any information provided under the Services, and (iii) no less protective than a reasonable standard of care under the circumstances. Such safeguards shall protect the confidentiality, security, integrity, and availability of systems, applications, and data used, processed, or held in connection with the Services, including by such Party’s employees, contractors, and service providers. If an applicable Order Form refers to “Affinity Data,” that term means any data provided by Affinity in connection with the provision of the Services.
- Intellectual Property
Except as expressly permitted in the Order Form, Affinity retains all right, title, and interest that it may have in the Services. - Indemnification
(a) By Both Parties. Each Party (“Indemnifying Party”) will defend, indemnify, and hold harmless the other Party, its affiliates, and their respective officers, directors, employees, contractors, licensees, and agents (“Indemnified Parties”) from any losses, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising from third-party claims alleging the Indemnifying Party’s breach of its representations, warranties, or obligations under the Order Form.
(b) By Affinity. Affinity will defend, indemnify, and hold harmless Client and its Indemnified Parties from any third-party claim that the Services, when used by Client as permitted in the Order Form, infringe a United States copyright or patent. If such a claim arises, Client will promptly notify Affinity and, at Affinity’s request, cease use of the affected Services. If any Services are adjudged or deemed by Affinity likely to infringe, Affinity will, at its expense: (i) obtain the right for Client to continue using them; (ii) modify or replace them to be non-infringing; or (iii) terminate the Order Form and require return of the Services. Affinity will have no obligation for claims resulting from: (i) use of other than a current, unaltered release of the Services if the infringing element is absent from the then-current release; (ii) use in combination with non-Affinity products, data, or equipment; (iii) modifications not authorized in writing by Affinity; or (iv) use of third-party software, information, or data.
The foregoing states Affinity’s entire liability and Client’s exclusive remedy for infringement or misappropriation, and claims of infringement or misappropriation, of any copyright, patent or other proprietary right by the services or any derivative thereof. - Limitation of Liability
Neither Party will be liable to the other Party under or in connection with the Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (i) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (ii) use, inability to use, loss, interruption, delay or recovery of any services, or breach of services or system security; or (iii) cost of replacement goods, products, or services, in each case regardless of whether it was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. EXCLUDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, 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. - Publicity and Promotion in Programs
(a) Mutual License. During the Term, each Party grants the other a limited, non-exclusive, worldwide, royalty-free license to use and display the other Party’s trademarks, service marks, and logos (collectively, “Marks”) on websites, reports, presentations, marketing materials, partner lists, financial reports, and service components.
(b) Promotion in Programs. During the Term, Affinity, at its sole discretion, may include Client in reward programs (“Programs”) with participating merchants and financial institutions (“Program Sponsors”) managed by Affinity. Affinity and Program Sponsors may promote Client to Program Sponsors’ customers through any marketing channels, including direct mail, statement promotions, email, Program websites, and other media. Client may be promoted for rebate offers at no cost to Client, unless otherwise mutually agreed. Client shall provide Affinity with camera-ready and web-ready artwork of Client’s Marks for marketing communications. Affinity will not modify Client’s Marks. Without conveying any proprietary right, title or interest in and to the Client’s Marks, Client grants Affinity and Program Sponsors a revocable, royalty-free, worldwide license during the Term to use Client’s Marks solely for promoting the Programs. This license is not limited by geography, recipient location, Program Sponsor location, or Program administration location, provided that the use is in connection with promoting the Programs hereunder. Affinity will provide Client with a sample showing how Client’s Marks would be used (either with the Order Form or before using Client’s Marks). Client’s review of such samples constitutes consent for similar uses of Client’s Marks in Programs. Affinity will use Client’s Marks only in the form and manner prescribed by Client. - Term and Termination
This Agreement begins on the Effective Date and continues for the period specified in the Order Form. Either Party may terminate this Agreement if the other Party materially breaches it and fails to cure within thirty (30) days after receiving written notice. Either Party may terminate immediately if the other Party: (i) files for bankruptcy or similar proceedings, (ii) makes an assignment for creditors’ benefit, (iii) has a receiver appointed, (iv) becomes subject to creditor protection proceedings, or (v) undergoes a change of control resulting in ownership by the terminating Party’s competitor. Termination does not relieve either Party from obligations accrued before termination. Neither Party will be liable for damages resulting from proper termination, including lost profits, goodwill, or business opportunities. All termination rights are in addition to other legal and equitable remedies available to the Parties. - Assignment
Neither Party may assign this Agreement without the other Party’s consent, except to a successor entity through merger or acquisition of substantially all assets. This Agreement binds and benefits the Parties and their permitted successors and assigns. - Governing Law
This Agreement will be governed by New York law without reference to conflict of laws principles. Any action relating to this Agreement must be brought exclusively in state or federal courts located in New York County, New York. Each Party irrevocably consents to the personal jurisdiction of these courts and waives any objection to venue or claims of inconvenient forum. - General
Affinity is an independent contractor, not an employee, agent, partner, or representative of Client. Notices must be in writing and delivered personally, by certified mail, courier service, or overnight mail to the addresses above. Address changes require 14 days‘ prior notice. Notices are effective upon receipt. This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements. Amendments must be in writing, reference this Agreement, and be signed by authorized representatives of both parties. This Agreement may be executed in counterparts and by electronic signatures, all of which together constitute one agreement. Each provision is severable. If any provision is unenforceable due to scope, it will be replaced with the maximum enforceable version permitted by law. Obligations that by their nature should survive will survive termination.