and Conditions 2023
These Insertion Order Standard Terms and Conditions (the “Terms“) are incorporated into the Order. These Terms, together with the Order, comprise the entire agreement between Merchant/Agency and Affinity (Merchant/Agency and Affinity are from time to time referred to herein as the “Parties” , with each being individually referred to as a “Party” ). In the event of a conflict between the Terms and the Order, the Order will prevail with respect to such conflict.
- Contracted Services . The services and functions described in the applicable Order are hereafter referred to as the “Services”). In the event that the scope of the Services described in the applicable Order is expanded, revised, or modified, as set forth in the applicable Order, the Parties shall prepare and sign an amended or new Order (or change order).
- Representations, Warranties..(a) Each Party represents, warrants and covenants to the other Party that: (i) it will comply with all applicable Law in connection with its performance and exercise of the Order; (ii) the Order 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 the Order and to perform its obligations under the Order. “Law” shall mean any 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.
- Indemnification. (a) By Both Parties. 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, licensees 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 the Order. (b) By Affinity. Affinity will defend, indemnify and hold harmless Merchant/Agency and its Indemnified Parties from and against all Damages to the extent that such action is based on a third party claim that the Services As-is, when used by Merchant/Agency in accordance with the Order, infringe(s) a United States copyright or patent. “As-is” shall mean means the exact state, in its entirety, as provided by Affinity to Merchant/Agency, with no added intelligence or logic. If Merchant/Agency is notified by a third party that such party claims rights in any Services or that any use of any Services infringes any right of that third party, Merchant/Agency will immediately notify Affinity and, at Affinity’s request, immediately cease (and procure that Merchant/Agency’s clients immediately cease) all use of such Services. If the Services or part thereof is finally adjudged to so infringe, or in Affinity’s opinion is likely to become the subject of such a claim, Affinity will, at its option and expense,either: (i) procure for Merchant/Agency the right to continue using the Services; (ii) modify or replace the Services to make it non-infringing; or (iii) terminate the Order, in which case Merchant/Agency will, and Merchant/Agency will procure that its clients will, immediately cease use of and return the Services. Affinity will have no liability regarding any infringement claim arising out of: (w) use of other than a current, unaltered release of the Services unless the infringing portion is also in the then current release; (x) use of the Services in combination with non-Affinity software, data/information or equipment if the infringement was caused by such use or combination; (y) any modification or derivation of the Services not specifically authorized in writing by Affinity; or (z) use of third party software, information or data. THE FOREGOING STATES AFFINITY’S ENTIRE LIABILITY AND MERCHANT/AGENCY’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.
EXCLUDING THE PARTIES’ OBLIGATIONS UNDER SECTION 4 AND RETAILER’S OBLIGATION TO PAY THE FEES AS SET FORTH HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THE ORDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SERVICES, OR BREACH OF SERVICES OR SYSTEM SECURITY; OR (e) 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’ OBLIGATIONS UNDER SECTION 4 AND MERCHANT/AGENCY’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 THE ORDER 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 THE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Confidential Information.
During the relationship established by the Order, each Party may communicate to the other Party and/or its respective employees, representatives, and agents certain information which is considered confidential or proprietary to the disclosing Party (“Confidential Information”). For purposes of the Order, the parties acknowledge and agree that the following will be considered Confidential Information: (a) the existence and terms of the Order; and (b) any personally identifiable information relating to any party employee or customer, including, without limitation, names, addresses and email addresses. Either Party shall hold the other Party’s Confidential Information in confidence and take all necessary precautions to protect such Confidential Information; not divulge any such Confidential Information to any third party except as provided herein or authorized by the other Party in writing; not make any use of any such Confidential Information except to perform the Order; and not remove or export any such Confidential Information outside the United States. The foregoing obligations shall survive for a period of four (4) years from the date of disclosure of the Confidential Information, except in the case of personal data, in which case the foregoing obligations shall be perpetual.
- Publicity and Promotion in Programs.. (a) During the Term, each Party’s hereby grants the other Party a limited, non-exclusive, worldwide, and royalty free license to use and display the other Party trademark service marks, and logos, (collectively the “Marks”) on such other Party’s websites, reports, presentations, marketing materials, partner lists, financial reports and software components of the services provided hereunder. (b) Promotion in Programs. (i) During the Term, Affinity, at its sole discretion, may include Merchant/Agency in reward programs (“Programs”) with participating retail merchants and for client financial institutions (“Program Sponsors”) managed by Affinity. Affinity and/or Affinity’s Program Sponsors may promote Merchant/Agency during the Term to Affinity’s Program Sponsors’ customers in various marketing vehicles, which may include direct mail, statement promotions, email, the Program websites and/or other marketing channels. Merchant/Agency may be promoted for rebate offers at no expense to Merchant/Agency, unless mutually agreed otherwise. (ii) Merchant/Agency shall be responsible for supplying to Affinity camera-ready and Web-ready artwork of Merchant/Agency’s Marks to be included in the marketing communications described herein. Affinity will not in any way modify the logo or other trademarked assets provided by Merchant/Agency. Without conveying any proprietary right, title or interest in and to the Merchant/Agency’s Marks, Merchant/Agency grants Affinity and Program Sponsors a revocable, royalty-free, worldwide license, effective during the Term to use, display and publish the Merchant/Agency’s Marks solely in connection with promoting the Programs. No use of the Merchant/Agency’s Mark shall be limited by the jurisdiction of the use, the location of a recipient of a marketing communication, the location of the Program Sponsor, or the location of the Program’s website or administration thereof, provided that the use is in connection with promoting the Programs hereunder. Affinity will provide a sample of the creative treatment demonstrating how Merchant/Agency’s Marks would be used in a Program (either attached to the Order or sent subsequently but prior to Affinity’s use of the Merchant/Agency’s Marks). Merchant/Agency’s review of such treatments will be deemed consent to all similar uses of Merchant/Agency’s Marks in Programs. Affinity agrees that it will use, reproduce and display the Merchant/Agency’s Marks only in the form, and manner prescribed by Merchant/Agency.
- Term; Termination.
The term of the Order will begin on the Order Effective Date set forth in the Order and will continue for the term set forth in the Order (the “Term”). Either Party may terminate the Order 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. Either Party may terminate the Order immediately, without penalty or payment of any termination fee and without need for further action, if the other Party: (i) becomes a debtor in a proceeding under the U.S. Bankruptcy Code, (ii) makes an assignment for the benefit of creditors, (iii) has a receiver appointed for it, or (iv) is subject to a similar state law proceeding for this protection of its creditors (v) a party reasonably determines that the performance of any part of the Order would be in conflict with law, or independence or professional rules. Termination of the Order for any reason shall not relieve or release either Party from any rights, liabilities or obligations that it has accrued under the Order prior to the date of such termination. Either Party may terminate the Order immediately in the event the other Party undergoes a change of control via merger, sale of assets, sale of stock, reorganization or otherwise in which the successor to all or substantially all of the acquired Party’s assets is deemed to be a competitor of the non-assigning Party. Any rights asserted by either Party under the Order shall be in addition to all other rights and remedies either Party may have by law or in equity. Each Party understands and agrees that the other Party shall not be liable for damages in any form by reason of the proper termination of the Order. Such damages for which the Parties shall not be liable include loss of market development, goodwill or anticipated profits or any expenditure incurred by the other Party.
- Intellectual Property. Affinity reserves all right, title and interest that it may have in the Services.
- Assignment. The Order and the rights hereunder may not be assigned by either Party without the consent of the other Party, except that either Party’s rights and obligations arising hereunder will be automatically assigned to and assumed by any successor entity into which such Party may be merged or by which all or substantially all of its assets may be acquired. The Order shall be binding upon and shall benefit the Parties and their respective successors and permitted assigns.
- Governing Law. TThe Order may be executed in counterparts through the exchange of electronic (e.g., pdf) or facsimile signatures, each of which will be an original and together will constitute one agreement.
- Counterparts. 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.
- General. Affinity is an independent contractor and not an employee, agent, partner, joint venturer or representative of Retailer. Nothing in the Order will be construed as creating an employer employee relationship between the parties. Any notice sent pursuant to the Order must be in writing and either served personally upon the other party or sent to the other party by U.S. mail, postage prepaid, certified, return receipt requested, or by courier service or overnight mail, to the addresses set forth above or at such address as either party may advise the other from time to time. Either party may change its address by giving the other party notice at least fourteen (14) days prior to the effective date of the change. Notices will be effective upon receipt. The Order, together with these Terms, constitute the entire agreement between the parties with respect to the subject matter herein, and supersedes any and all prior agreements or understandings between the parties, whether oral or written, with respect to such subject matter. The Order may be amended, supplemented, modified and/or rescinded only through a written instrument that references the Order, and is signed by an authorized representative of Affinity and Retailer. Each section, subsection, paragraph, term and provision of the Order, and any portion thereof, to the extent permitted by applicable laws, shall be considered severable. If any provision of the Order is deemed unenforceable due to its scope, a provision containing the maximum enforceable scope permitted by applicable laws shall be substituted therefor. Upon expiration or termination of the Order, the obligations which by their nature are intended to survive expiration or termination of the Order, will survive.
(b) Exclusions and Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, 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. MERCHANT/AGENCY ACKNOWLEDGES THAT THE SERVICES IS PROVIDED “AS IS” AND THAT AFFINITY DOES NOT WARRANT THAT THE FUNCTIONS PERFORMED BY THE SERVICES WILL MEET MERCHANT’S/AGENCY’S REQUIREMENTS, THAT THE SERVICES WILL BE ERROR FREE, OR THAT SERVICES DEFECTS ARE CORRECTABLE.