2. Fees and Payment
(a) Election and Fees.
(i) The fees for the Services are set forth on the Affiniv pricing page ("Pricing Page") or on an executed Order
Form or Statement of Work between you and Affiniv, each of which is incorporated into and made a part of this
Agreement. Fees for the Services may be payable in advance, in arrears, per user, or as otherwise described on the
Pricing Page or on an executed Order Form or Statement of Work between us. You agree to pay Affiniv the fees
indicated for the Services you purchase and for the indicated term ("Subscription Term") and for any other fees
set forth on an executed Order Form or Statement of Work between us. Stated fees do not include any related taxes
(including sales and use taxes, duties or other governmental taxes or fees), all of which are your responsibility
and will be charged to your Payment Method in addition to the fees.
(ii) Fees for subscription-based Services will be invoiced to you or charged to your Payment Method on the day your
Services plan selection goes into effect and will cover fees for your Services plan selection for the payment
period indicated. Fees for other Services will be charged according to the applicable Pricing Page,
Order Form or Statement of Work. At the end of the indicated Subscription Term for subscription-based Services,
and unless otherwise set forth in the applicable Order Form or Statement of Work, your purchased Services will
automatically renew for successive renewal Subscription Terms of equal length to the initial Subscription Term
and the applicable fees will continue to be invoiced to you or charged to your Payment Method on a recurring basis
until you change your Services plan selection or terminate this Agreement. The amount of the charge for each
renewal Subscription Term will be the then-current fee applicable to the Services plan and Subscription Term you
selected as set forth on the Pricing Page or otherwise communicated to you. You acknowledge that the amount of the
charge may increase if the applicable fee increases. If applicable, you hereby authorize Affiniv to charge your Payment
Method for such recurring charges
(iii) You may upgrade, downgrade or terminate your Subscription Services plan selection at any time.
Plan downgrades and terminations will take effect only at the end of your current term and must be made at least 30
days prior to the start of your next renewal Subscription Term in order to avoid billing of the next renewal
Subscription Term's fees at the prior rate. Services upgrades will take effect immediately and you will be charged a
prorated fee for the remainder of your current Subscription Term based on the difference in price between your
current plan and the upgraded plan.
(b) Payment Method. Affiniv may, from time to time, offer various expedited payment methods, including payment by credit
card, debit card, or direct debit. If you select such a payment method when purchasing the Services, or provide such a
payment method on an Order Form or Statement of Work (the "Payment Method"), you authorize Affiniv to charge you for
Services through such Payment Method and agree to make payment using such Payment Method and to keep your
payment-related information up to date. Certain Payment Methods, such as credit cards and debit cards, may
involve agreements between you and the financial institution, credit card issuer or other provider of your chosen
Payment Methods (the "Payment Method Provider"). If Affiniv does not receive payment from your Payment Method Provider,
you agree to directly pay all amounts due upon demand from Affiniv. Your non-termination or continued use of the Services
reaffirms that Affiniv is authorized to charge your Payment Method.
(c) Payment Matters. If your Payment Method fails or your account is past due, Affiniv reserves the right to either
suspend or terminate your use of the Services. If Affiniv has agreed to issue invoices to you, payment of all invoices
is due within 14 days of invoice receipt. You agree to submit in writing to Affiniv any disputes regarding any fees
invoiced to you within 14 days of invoice receipt, or charged to your Payment Method within 60 days of such charge,
otherwise such dispute will be waived and such invoices and charges will be final and not subject to challenge.
Affiniv reserves the right to charge you interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate
permitted by applicable law, whichever is lower. You will also reimburse any reasonable costs and expenses
(including reasonable attorneys' fees) incurred by Affiniv to collect any undisputed amount that is not paid when due.
All fees and charges are nonrefundable and there are no refunds or credits for any partially used Services except
(i) as expressly set forth in this Agreement, the Pricing Page or an executed Order Form or Statement of Work between
us; (ii) as otherwise required by applicable law; or (ii) at our sole and absolute discretion.
All fees for Services are subject to change without notice; however, Affiniv will use reasonable efforts to notify you at
least 30 days before any fee increase and fee changes will not take effect until your next renewal.
3. Certain Customer Responsibilities and Additional Requirements
(a) Grant of License. As between you and Affiniv, and except as otherwise expressly stated in this Agreement,
you will own and retain all rights, title, and interest in and to all data, information, text, graphics, images,
links, and all other content and materials submitted by you or on your behalf, or that you allow us to access or
upload from your systems, for processing by the Services, as well as any information that Affiniv collects
directly from your users (collectively, the "Customer Content"). You hereby grant to Affiniv and its suppliers a
non-exclusive, worldwide, transferable, sublicensable, and fully paid-up right and license to analyze, process,
use, disclose, transfer, publish, display, compile, create derivative works of and otherwise exploit, the Customer
Content for purposes of providing, developing and improving the Services and operating our business.
(b) Responsibility and Use of Customer Content. You are solely responsible (and assume all liability and risk) for
determining whether or not Customer Content is legal, appropriate or acceptable, and whether you have the right to
provide, access and use such content and grant to Affiniv and its suppliers the right to access and use such content
under this Agreement. Affiniv will not be responsible for the Customer Content. Affiniv reserves the right at all times,
at its discretion and without notice to you, to remove or refuse to store or use any Customer Content within the
Services. Affiniv also reserves the right to access, preserve and disclose any information as it reasonably believes
is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce
this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address
fraud, security, or technical issues; or (iv) protect the rights and property of Affiniv, its users and the public.
You acknowledge that you are responsible for setting access rights and privileges for any of your Permitted Users.
(c) Copyright Policy. Affiniv honors and recognizes copyright law and expects all customers and users of the Services
to comply as well. Affiniv reserves the right to terminate the account of any customer or user who continuously violates
or is believed to be continuously violating the rights of copyright owners.
4. Affiniv IP
(a) Ownership of Affiniv IP. Affiniv and its licensors will own and retain all rights, title, and interest in and
to the Services and all materials therein, including software (as defined below, and any
other necessary software used in connection with the Services), Java applets, images, text, graphics, designs,
illustrations, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information,
data, other files and the arrangement thereof, content belonging to other users, Documentation and all work
product and deliverables under each Order Form and Statement of Work (collectively, "Affiniv IP"). "Documentation"
means any user documentation, on any media, provided by Affiniv for use with the Services.
(b) Limited License. During the term of this Agreement, and as applicable to the Services you purchase, you are
granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the
Services and Documentation for your internal business purposes, subject to the terms and
conditions of this Agreement. For the avoidance of doubt, you must comply with any scope restrictions or limitations
for the Services you purchase.
(c) Restrictions. You agree that you will not (i) copy, modify, publish, adapt, create derivative works of,
sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or
otherwise disassemble any portion of the Services or other Affiniv IP or cause others to do so;
(ii) remove, alter, cover or obfuscate any copyright notice or other proprietary rights notice placed on or
displayed by the Services and Documentation, whether in machine language or human readable
form; (iii) "frame" or "mirror" any part of the Services, without Affiniv's prior written authorization; (iv) use
meta tags or code or other devices containing any reference to Affiniv or the Services in order to direct any person
to any other website for any purpose; (v) rent, lease, loan, resell, sublicense, distribute or otherwise transfer
the Services or Documentation to any third party or use the Services (including Mobile
Apps) or Documentation to provide time sharing or similar services for any third party or make any commercial
use of the Services or Documentation, other than as intended; (vi) use any data mining,
robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data
or other content from the Services or Documentation; (vii) forge headers or otherwise manipulate identifiers
in order to disguise the origin of any information transmitted through the Services; (viii) use any automated
methods or processes to create user accounts or access the Services, (ix) remove, circumvent, disable, damage
or otherwise interfere with any security or other technological features or measures of the Mobile Apps and
other Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach
any security measures; or (x) use the Services or other Affiniv IP other than for their
intended purpose. Any use of the Services or other Affiniv IP other than as expressly
authorized herein, without the prior written consent of Affiniv, is strictly prohibited and will violate and
terminate the license granted herein. You agree to promptly notify Affiniv in writing of any unauthorized use of
the Services, Documentation or other Affiniv IP that comes to your attention, cooperate and assist with any
actions taken by Affiniv to prevent or terminate unauthorized use of the Services, Documentation and other
Affiniv IP, and use reasonable efforts to prevent any such unauthorized use of the Services, Documentation
and other Affiniv IP.
(d) Reservation of Rights. Unless explicitly stated herein, nothing in this Agreement will be construed as
conferring any license to intellectual property rights, whether by estoppel, implication or otherwise.
Affiniv reserves all rights not expressly granted herein in the Services and the other Affiniv IP.
This license is revocable at any time.
5. Communicating with you Electronically - Permission to Text
(a) You agree and consent to our communicating information, notices, messages, service alerts, announcements,
agreements, privacy notices, disclosures or other communications ("Electronic Communications") associated with
the Services to you and Permitted Users electronically by posting such Electronic Communications in your Affiniv
Account, e-mailing such Electronic Communications to the e-mail address on file or by sending such Electronic
Communications to you and Permitted Users via SMS text message to the mobile number on file in the relevant Affiniv
(b) Unless and until you opt-out of receipt of Electronic Communications via SMS text messaging, you expressly
give us permission to send you text messages to your and Permitted Users' mobile devices. You acknowledge and
understand that such text messages may cause you and Permitted Users to incur charges from the wireless service
provider or deductions from the applicable calling or texting plans. Text messages may include information about
and other communications Affiniv may desire to send.
(c) Electronic Communications are deemed to be received - at the latest - when they are sent to you or Permitted
Users at the last email address or wireless phone number provided us. You will ensure that your and Permitted Users'
email address and wireless phone number will be kept up to date in order that we may communicate with you and
Affiniv welcomes and encourages feedback, comments, and suggestions for improvements to the Services
and Documentation ("Feedback"). By providing Feedback, you agree that all Feedback
becomes Affiniv's exclusive property. Additionally, you grant Affiniv a non-exclusive, perpetual, irrevocable,
paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell,
offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Feedback.
"Affiniv", Affiniv's logos and any other trade name or slogan contained in or used in connection with the Services are
trademarks or service marks of Affiniv, its partners or its licensors and may not be copied, imitated or used, in
whole or in part, without the prior written permission of Affiniv or the applicable trademark holder. In addition,
the look and feel of the Services, including all page headers, custom graphics, button
icons and scripts, is the service mark, trademark and/or trade dress of Affiniv and may not be copied, imitated or
used, in whole or in part, without Affiniv's prior written permission. All other trademarks, registered trademarks,
product names and company names or logos mentioned in connection with the Services are the property of their
respective owners. Reference to any products, services, processes or other information, by trade name, trademark,
manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation
thereof by Affiniv.
8. Compliance with Laws
You agree that you will use the Services and provide, access and use Customer Content in compliance with all
applicable local, state, national and international laws, rules and regulations. You will not, will not agree to,
and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute
any content that you do not have the necessary rights in or that is unlawful, defamatory, libelous, harassing,
abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by
Affiniv; (b) interfere or attempt to interfere with the proper working of the Services or prevent others from using
the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing
may result in immediate termination of this Agreement, at Affiniv's sole discretion, and may subject you to state
and federal penalties and other legal consequences. Affiniv reserves the right, but will have no obligation, to
review the Customer Content and use of the Services, including in relation to Affiniv user complaints or disputes,
in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law,
regulation, legal process, or governmental request.
9. Confidential Information
(a) Definition. "Confidential Information"
means non-public business information, know-how, and trade secrets in
any form, including information regarding our product plans, security practices and policies, and any other
information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either
party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by
inspection of tangible objects, and whether such information is disclosed before or after the effective date of
this Agreement. Confidential Information includes any portion of this Agreement and its terms that is not publicly
available on our website. "Confidential Information" excludes information that (i) is publicly known and made
generally available in the public domain prior to the time of disclosure by the disclosing party through no
action or inaction of the receiving party; (ii) is already in the possession of the receiving party at the time of
disclosure by the disclosing party, as shown by the receiving party's files and records; or (iii) is obtained by
the receiving party from a third party without a breach of the third party's obligations of confidentiality.
(b) Maintenance of Confidentiality.
The party receiving Confidential Information hereunder agrees to take
reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary
information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the
Confidential Information to third parties without the disclosing party's prior written consent. The receiving
party may disclose the disclosing party's Confidential Information to the receiving party's employees or agents
who reasonably need to have access to such information to perform the receiving party's obligations under this
Agreement, and who will treat such information as Confidential Information under the terms of this Agreement.
The receiving party may disclose the disclosing party's Confidential Information if required by law so long as
the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where
permitted) and reasonable assistance, at the disclosing party's expense, in limiting disclosure or obtaining an
order protecting the information from public disclosure.
(c) Return of Materials and Effect of Termination.
Upon written request of the disclosing party, or in any event
upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or
destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party's
Confidential Information. With respect to your Customer Content, we will make your Customer Content available for
download at any time upon your request during the term of this Agreement and for a period of 90 days following
expiration or termination of this Agreement (excluding Customer Content resulting from Free Trials, which are
covered by Section 1(e)). Following such 90-day period, we may purge your Customer Content from our systems. The
obligations in this Section 9 survive for three years following expiration or termination of this Agreement, except
that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject
to the terms of this Section 9 for as long as such information remains a trade secret under applicable law.
Affiniv collects personal and other information in connection with the Services.
10. Representations and Warranties
Without limiting any other representation, warranty or covenant of either party herein, each party hereby
represents and warrant to the other that: (a) it has the full right, power and authority to enter into this
Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it will perform it
obligations hereunder in compliance with all applicable laws, rules and regulations. Further, you hereby
represent and warrant to Affiniv that (i) you have the right to grant to Affiniv and its suppliers the rights granted
herein and that none of the Customer Content contains any material that infringes upon any third-party right,
including rights arising from contracts between you and third parties, copyright, trademark, class action,
patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other
intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy,
publicity, or other property rights of any person; and (ii) none of the Customer Content provided by you hereunder
contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other
computer programming routines that may potentially damage or interfere with the Services, or intercept or
expropriate any system data or personal information from the Services.
11. Term; Termination
The term of this Agreement will continue until terminated. Without limiting Affiniv's rights to terminate as set
forth elsewhere in this Agreement, Affiniv may terminate this Agreement immediately upon written notice to you for
breach of Section 3, 4, 8, 9 or 10. In the event of a material breach by either party of any other provision of
this Agreement, the non-breaching party may terminate this Agreement upon 5 business days' prior written notice
without liability to the other party. Either party may terminate this Agreement for convenience at any time upon
at least 10 business days' prior written notice to the other party. Upon termination of this Agreement, you will
be responsible for paying (a) fees payable for the remainder of any ongoing Subscription Terms, unless this
Agreement was terminated by you for Affiniv's uncured material breach or was terminated by Affiniv for convenience,
and (b) any other amount due under this Agreement through the effective date of termination, and you authorize
Affiniv to charge your Payment Method immediately upon termination for the full amount payable hereunder. No refunds
of fees paid under this Agreement will be provided. Termination of this Agreement will not relieve either party
of any obligations or liabilities that have accrued prior to the termination date (including obligations to pay
fees, taxes, interest and collection costs) and is without prejudice to any other rights and remedies either
party may have. In addition, each party's obligations as provided in the following sections of this Agreement
will survive termination: 2, 3, 4(a), 6-9, 11-16 and 17 (excluding (a)).
12. Purchase Through Channel Partners
(a) Applicability. This Section 12 only applies to purchase of Services through an authorized distributor or
reseller (a "Channel Partner"). If you are uncertain as to the applicability of this section to your purchase,
you should contact Affiniv for further information.
(b) Channel Partners. If you ordered your Services from a Channel Partner, then the following terms apply:
(i) This Agreement is not exclusive of any rights you obtain under your agreement with the Channel Partner
(the "Channel Partner Sale Agreement"); however, if there is any conflict between the provisions of this Agreement
and the Channel Partner Sale Agreement, then the provisions of this Agreement prevail. If a Channel Partner has
granted you any rights that Affiniv does not also directly grant to you in this Agreement, or that conflict with this
Agreement, then your sole recourse with respect to such rights is against the Channel Partner.
(ii) Your Subscription Term will run for the period of time stated in the Channel Partner Sales Agreement and,
subject to Section 11, it will expire, renew and terminate in accordance with the terms of the Channel Partner
(iii) Section 2 does not apply to you, and your billing and payment rights and obligations are governed by the
Channel Partner Sale Agreement. However, if the Channel Partner from whom you purchased the Services fails to pay
Affiniv any amounts due in connection with your Services, then Affiniv may suspend your Services, with or without notice
to you. You agree that your remedy in the event of such suspension is solely against the Channel Partner and that
Affiniv is not liable to you in any manner for such suspension.
(a) Your Indemnity. You agree to defend, indemnify and hold Affiniv and its affiliates and each of their respective
directors, officers, employees, agents, contractors, suppliers, licensors and representatives, and affiliates of
each of the foregoing, harmless from and against any losses, costs, liabilities, claims, demands, damages and
expenses, including reasonable attorneys' fees, arising out of or related to (a) your violation of any term of
this Agreement, (b) your unauthorized use of and access to the Services, (c) your violation of any rights of a
third party, including any right of privacy or intellectual property rights; (d) any other party's access and use
of the Services with your username, password or any other authentication credentials; (e) your violation of any
applicable laws, rules or regulations, (f) Customer Content, or (h) your negligence or willful misconduct.
The indemnified party agrees to give you prompt written notice of any claim and to reasonably cooperate with
your defense of such claim, at your expense.
(b) Affiniv Indemnity. Affiniv agrees to defend, indemnify and hold you and your affiliated companies harmless from
and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses
or settlement related thereto arising from allegations that the Services or any portion thereof infringe(s) or
otherwise violate(s) such third-party's U.S. patents, trademarks or copyrights. You must give Affiniv prompt written
notice of any claim and reasonably cooperate with Affiniv's defense of such claim, at Affiniv's expense. If a claim under
this paragraph is made or likely to be made, Affiniv may in its sole discretion: (i) procure a license to allow you
to continue using the allegedly infringing component(s) of the Services, (ii) modify the infringing component(s)
to make them non-infringing, or (iii) if (i) and (ii) are not reasonably available, terminate your right to use
the infringing component(s) effective immediately without liability.
14. Disclaimers; No Warranties
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
AFFINIV AND ITS AFFILIATES AND SUBSIDIARIES MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH
RESPECT TO ANY MATTER, INCLUDING THE SERVICES. AFFINIV EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES,
GUARANTEES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OR THOSE ARISING OUT A COURSE OF DEALING OR USAGE OF TRADE.
FURTHER, AFFINIV DOES NOT WARRANT THE RESULTS OR PROVISION OR USE OF THE SERVICES, INCLUDING THAT YOU WILL RECEIVE
ANY BUSINESS BENEFITS AS A RESULT OF THE SERVICES, AND YOU ASSUME ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
AFFINIV MAKES NO WARRANTY, EXPRESS OR IMPLIED, RELATED TO THE AVAILABILITY, UPTIME, OR QUALITY OF THE SERVICES, AND
AFFINIV MAY FREELY ADD, MODIFY, UPDATE, REMOVE, AND REPLACE ANY SERVICES.
15. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL AFFINIV, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFIT OR
REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA
OR CONTENT SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, THAT RESULTS
FROM THIS AGREEMENT OR THE PROVISION OR USE OR THE INABILITY TO PROVIDE OR USE THE SERVICES, EVEN IF AFFINIV HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AFFINIV AND ITS AFFILIATES AND SUBSIDIARIES' TOTAL
LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT
(WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT
RECEIVED BY AFFINIV FROM YOU DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU WILL NOT
COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST AFFINIV MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION
OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL
OR CONSEQUENTIAL DAMAGES. ONLY THE LIMITATIONS WHICH ARE LAWFUL WILL APPLY TO YOU AND AFFINIV'S LIABILITY WILL BE
LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Governing Law, Arbitration
(a) Governing Law. You agree that the Services shall be deemed solely based in Haryana and this Agreement shall
be governed by the laws of the India State of Haryana, without respect to its conflict of laws principles.
You agree to submit to the personal jurisdiction of the state or supreme courts in and for the Haryana, India,
for any actions for which we retain the right to seek injunctive or other equitable relief in a
court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that Court of Haryana,
India is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event
that the arbitration provision below is found to be unenforceable.
(b) Arbitration. READ THIS PARAGRAPH CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND
LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM AFFINIV. For any dispute with Affiniv arising out of or relating
or Order Forms), you agree to first contact us using the contact information below and attempt to resolve the
dispute with us through good faith discussions. In the unlikely event that we have not been able to resolve a
dispute after 60 days, we each agree to resolve any claim, dispute or controversy (excluding any claims for
injunctive or other equitable relief as provided below) arising out of or relating in any way to this Agreement
(collectively, "Claims"), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then
in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be
conducted via video conferencing (using tools such as Zoom, Google meet etc), unless you and Affiniv agree otherwise.
Each party will be responsible for paying
any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the
arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and
other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent
jurisdiction. Nothing in this paragraph shall be deemed as preventing either you or Affiniv from seeking injunctive
or other equitable relief from the courts as necessary to prevent the actual or threatened infringement,
misappropriation or other violation of either party's confidential information or intellectual property or other
(c) Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY,
AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY
GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE
AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT BY ENTERING
INTO THIS AGREEMENT, YOU AND AFFINIV ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS
ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
17. Updates to this Agreement; Miscellaneous; Questions
(a) Updates to this Agreement.
From time to time, Affiniv may change, modify, add, or remove portions of this
Agreement (each an "Update"), and reserves the right to do so in its sole discretion. If Affiniv Updates this
Agreement, it will make the Updated Agreement available here, and the Updated Agreement will indicate the date of
the latest revision. Affiniv encourages you to review this Agreement periodically for changes. In the event that
Updates to this Agreement materially alter your rights or obligations hereunder, Affiniv will make reasonable efforts
to notify you of the Updates. For example, Affiniv may send a message to your email address that is currently
associated with your Affiniv Account or generate a pop-up or similar notification when you access your Affiniv Account
for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days
after they are made available through the Services, except that (i) disputes between you and Affiniv will be governed
by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically
agreed otherwise, if you do not agree with any changes to this Agreement, you may terminate this Agreement as set
forth above. Your continued access to or use of the Services after an Updated Agreement has become effective
indicates that you have read, understood and agreed to the current version of this Agreement.
(b) Audit Rights.
Upon 15 days' notice, Affiniv may audit your use of the Services to ensure compliance with license,
payment and other terms of this Agreement. You will cooperate with Affiniv's auditors and provide reasonable assistance
and access to information. If the audit uncovers underpaid fees owed to Affiniv, you will pay those fees and if the
audit uncovers a material underpayment of fees or material breach, you will pay Affiniv's costs incurred in conducting
the audit within 30 days of written notification of the amounts owed. All information gathered as part of the audit
will be treated as your Confidential Information.
(c) Entire Agreement; Conflicts.
all Statements of Work and Order Forms, sets forth the entire agreement between Affiniv and you, and supersedes any
and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. If there is
a conflict between the terms of this Agreement and the terms of an Order Form or Statement of Work, the terms of this
Agreement will control unless the Order Form or Statement of Work states that a specific provision of this Agreement
will be superseded by a specific provision of the Order Form or Statement of Work, and then the superseded terms will
only apply to the applicable Order Form or Statement of Work, and not to any other Order Form or Statement of Work.
(d) Customer List.
Affiniv may use your name and logo on its website and customer lists to identify you as a
customer of the Services, unless you notify Affiniv in writing to stop doing so.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or
assigned by you without the prior written consent of Affiniv. Affiniv may freely assign or transfer this Agreement.
Both parties are independent contractors, and neither party is an agent, representative or partner of the other.
In this Agreement, "including" means "including without limitation". Affiniv may, in its sole discretion, work with
licensors, vendors, contractors and other third parties to fulfill any obligations in this Agreement or to support the Services,
and we may change our use of licensors, vendors, contractors and other third parties without notice to you.
Any notices under this Agreement will be sent by Affiniv to at least one of the addresses provided to
Affiniv in connection with your registration or updates thereto (or in a separate writing) and will
be sent by you to the address for Affiniv shown on www.affiniv.com. The waiver of any breach or default of this Agreement will not constitute
a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving
party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable
in any respect under any applicable law, then such provision will be severed and replaced with a new provision
that most closely reflects the original intention of the parties, and the remaining provisions of this
Agreement will remain in full force and effect. Headings are provided for convenience but do not
constitute part of this Agreement.
If you have any questions related to this Agreement, please contact us at [email protected]