These Master Terms and Conditions (the “Master Terms”) are made a part of the Agreement between Customer and Affinitiv.
1. Fees and Payment
1.1 Fees Due. Payment of all non-recurring fees set forth in the Agreement are due from Customer on a Net 30 basis from the Effective Date except only as expressly agreed to the contrary in the Agreement. In the case of recurring fees identified as recurring on a particular timed basis, such recurring fees are due from Customer on the date of each recurrence (for example, a fee identified as “monthly” or “per month” would recur once every calendar month on the monthly anniversary of the Effective Date, with comparable recurrence for calendar quarters or years). In the case of recurring fees identified as recurring and accumulating based on a count of usage (for example, fees identified as “per impression” or “per piece” or “per call”), Affinitiv will invoice Customer once per calendar month for the accumulated fees and the applicable fees shall be due on a Net 30 basis from the date of such invoice. Affinitiv and Customer may agree to include any timed recurring fees in such monthly invoice, in which case such timed recurring fees shall be due on a Net 30 basis from the date of such invoice as well, in lieu of being due as set forth above.
1.2 Payment Process. Customer shall make payment to Affinitiv in U.S. Dollars to the address set forth on the face of the Agreement or such other address as Affinitiv may designate in writing from time to time. All amounts paid pursuant to the Agreement are non-refundable.
1.3 Late Payments. Any fees not paid when first due shall be subject to a late payment fee of $50.00 or one percent (1%) per month from the date first due, whichever is greater. In addition to any other remedies that may be available, in the event that any fees due from Customer remain unpaid fifteen (15) or more days after the date first due, Affinitive may, after having provided Customer written notice and ten (10) days to cure such overdue payment, without further notice or opportunity to cure and without liability or decrease in fees due, suspend performance of, or Customer’s access to and right to use, any or all services and suspend Customer’s access to any or all products. Any product or service so suspended shall be subject to a two hundred dollar ($200) reconnection fee, along with payment in full of all outstanding balances and late payment fees or interest, and Affinitiv shall have no obligation to lift any such suspension until all such fees and charges have been paid in full.
1.4 Fee Increases. Customer acknowledges and agrees that Affinitiv may pass through to Customer any increases in Affinitiv’s third party costs incurred in the provision of any product or service to Customer under the Agreement. Affinitiv may increase the recurring costs associated with any product or service in its discretion at any time by providing thirty (30) days written notice to Customer of such price increase. Such price increase shall be applicable upon and after the first recurrence or invoice following such notice period. Affinitiv makes no representation that any non-recurring fee rates will be available for subsequent or renewal terms and the non-recurring fees associated with any product or service, whether newly obtained or in any renewal term, shall be as specified by Affinitiv in a quotation for such new or renewal term.
1.5 Taxes. Unless otherwise noted, the fees set forth in the Agreement do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer agrees to pay all Taxes on the products or services that are required by law to be paid except for any Taxes based on Affinitiv’s income, property and employees.
1.6 Fees Varying By Usage or Count Delivered. Where the quotation identifies recurring fees that are based on a count of usage or amount actually delivered, Affinitiv will invoice Customer for the actual usage or delivered count and Customer agrees to pay the applicable fees for the actual count of usage or amount delivered. In such case any total fee set forth on the quotation is an estimate based on the estimated count provided by Customer and Customer agrees that the actual count will govern.
2. Term and Termination
2.1 Termination for Cause. Affinitiv may terminate this Agreement immediately by providing notice of termination to Customer, upon the occurrence of any of the following:
2.1.1 Any breach of this Agreement by Customer, which breach continues thirty (30) days after notice thereof to Customer from Affinitiv;
2.1.2 Any breach by Customer of any obligation of confidentiality, privacy, or under Section 4.4, 5.1.4, 5.1.5, or 5.2 of these Master Terms;
2.1.3 Any violation of law or Affinitiv’s intellectual property rights by Customer;
2.1.4 Customer sells or transfers its assets related to its operations in connection with this Agreement, or merges with a third party, without the prior written consent of Affinitiv to the assignment of this Agreement and agreement from Customer’s successor in such transaction to assume all of Customer’s obligations and liabilities hereunder; or
2.1.5 Customer is adjudicated as bankrupt, or a petition in bankruptcy, reorganization or similar proceeding is filed against Customer and such petition is not discharged within sixty (60) days of such filing, or Customer is dissolved or liquidated.
2.2 Termination for Convenience. Affinitiv may terminate this Agreement for its convenience upon thirty (30) days notice to Customer.
2.3 Effect of Termination. The termination of this Agreement for any reason shall not terminate any liability or obligation of Customer hereunder which accrues prior to such termination, including, without limitation, Customer’s obligation to pay any amounts that are or become due to Affinitiv up to the date of termination. Upon termination, Customer’s right to receive or use any and all products or services of Affinitiv shall immediately cease and all licenses to any product or services granted in the Agreement are immediately revoked. In the event of termination under Section 2.2 of these Master Terms, Affinitiv shall refund to Customer the unused balance of any fees paid in advance for a period or quantity of service or use of any product applicable to any period after the date of termination. In the event of termination under Section 2.1 of these Master Terms, all unpaid balances and all recurring charges for the remainder of the then-current term at the time of termination shall immediately become due and payable. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief.
2.4 Survival. All provisions of this Agreement which by their nature are intended to survive the termination of the Agreement (including, without limitation, the provisions of Articles 3, 6, 7, and 8 of these Master Terms) shall survive such termination.
2.5 Term. The term of the Agreement shall begin as of the execution of the Quotation document by Customer (the “Effective Date”), and shall continue for the period set forth on each applicable Product Specific Terms. The term applicable to each different product or service may be different, and the Agreement shall only remain in force for purposes of a specific product or service for the term applicable to that specific product or service as set forth in the applicable Product Specific Terms. The term of the Agreement as a whole shall continue until the end of the last term to end of any term applicable to a particular product or service.
3.1 Definition. “Confidential Information” means any confidential or proprietary information of a party disclosed or made accessible to the other party in the course of performance under this Agreement, including, without limitation, trade secrets, software code, algorithms, confidential know-how, confidential business information (including but not limited to; screen layouts, program flow, business logic, business plans, customer lists, vendor lists, strategic alliances, marketing strategies, and planned new products and services) and other information which a party considers to be proprietary or confidential. Confidential Information, however, does not include information which (i) is or becomes generally available to the public (other than as a result of disclosure or dissemination by the receiving party), (ii) is or becomes available to the receiving party on a non-confidential basis from a single source (other than the disclosing party) that is not bound by an obligation of confidentiality relating to the information, (iii) has been independently acquired or developed by the receiving party without violating any obligation to the disclosing party, or (iv) was rightfully in the possession of the receiving party prior to receipt from disclosing party.
3.2 Obligations as to Confidential Information. Each party receiving Confidential Information of the other party (such party, for such purposes, the “Receiving Party”) shall: (i) limit access and use of the Confidential Information of the other party (such party, for such purposes, the “Disclosing Party”) to those of Receiving Party’s employees and agents that require such access and use in connection with this Agreement and who are bound by confidentiality provisions no less restrictive than those in this Article 3; (ii) not disclose or permit the disclosure of Disclosing Party’s Confidential Information to any third party, unless first authorized in writing by the Disclosing Party; (iii) protect the confidentiality and secrecy of the Disclosing Party’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use the Disclosing Party’s Confidential Information for any purpose except as required to perform its obligations under the Agreement or as otherwise expressly permitted pursuant to the Agreement. Receiving Party shall take appropriate action with its employees, or authorized third parties, to satisfy its obligations hereunder. The obligations set forth above in this Section 3.2 shall survive termination of the Agreement and continue thereafter for a period of five (5) years, except that for Confidential Information that consists of a party’s Trade Secrets, the obligations under this Section 3.2 shall extend for as long as such Confidential Information remains a trade secret under applicable law. Nothing in this Agreement is intended or shall be interpreted to limit, modify, or supersede any right or obligation related to any trade secret under applicable law. Either party may disclose the existence and general nature of the Agreement, but may not, without the prior consent of the other party, disclose the specific terms of the Agreement.
3.3 Mandatory Disclosure. Nothing in this Article shall prevent a Receiving Party from disclosing Confidential Information in compliance with a lawful order of a court, administrative tribunal, or regulatory or law enforcement agency with applicable jurisdiction provided that the Receiving Party: (i) where legally permissible, provides prior notice to the Disclosing Party of the legal obligation to disclose; (ii) takes reasonable measures to disclose only the minimum amount of Confidential Information necessary to comply with the obligation; (iii) takes reasonable measures to limit the further use or disclose of the disclosed Confidential Information through an applicable protective order or comparable means; (iv) where legally permissible, provides the Disclosing Party the opportunity to object or otherwise intervene to prevent or limit the disclosure; and (v) where legally permissible, cooperates reasonably with Disclosing Party as requested by Disclosing Party in obtaining relief to prevent or minimize the disclosure.
3.4 Return of Confidential Information. Upon termination of the Agreement, and at any time upon written request of the Disclosing Party, each Receiving Party agrees promptly to return to the Disclosing Party any Confidential Information of the other party together with all full or partial copies thereof and any transcripts, notes, or other materials made therefrom or embodying any of the other party’s Confidential Information; or, at the Disclosing Party’s election, to destroy such items and deliver to the Disclosing Party written certification that such materials have been destroyed.
4. Intellectual Property
4.1 Ownership. Except as expressly set forth in the Agreement, Customer acknowledges and agrees that as between Customer and Affinitiv, Affiniv is the sole owner of all right, title, and interest in and to: (i) all software provided or made available to Customer pursuant to the agreement, whether licensed to Customer or provided as a service, together with all additions, modifications, developments, or enhancements of any of the same; (ii) all products provided or made available to Customer pursuant to the agreement, together with all additions, modifications, developments, or enhancements of any of the same; (iii) all technology, software, products, program code, designs, methods, ideas, concepts, know-how, techniques, modules, components, generic documents or templates, tools, or other information developed, improved, modified, or used by Affinitiv in performing its obligations pursuant to the Agreement; (iv) all brands, trade names, trademarks, and service marks used by Affinitiv in connection with its products or services except as set forth in Section 4.3 of these Master Terms; and (v) all data or content provided or used in connection with any product or service pursuant to the Agreement except as set forth in Section 4.4 of these Master Terms. Affinitiv reserves all rights in all of the foregoing not expressly granted to Customer pursuant to the Agreement, and Customer agrees not to claim or assert any interest therein. Any use of any of the foregoing without the express authorization of Affinitiv is strictly prohibited.
4.2 No Work Made For Hire. Except as expressly set forth in the Agreement, Customer acknowledges and agrees that no work, development, or deliverable pursuant to the Agreement is a work made for hire and that Customer will not have or obtain any ownership of any deliverable from Affinitiv under the Agreement.
4.3 Third Party IP. To the extent Customer requires Affinitiv to use any trademark, copyrighted material, or other intellectual property of any third party in connection with the provision of services to or for Customer, Customer hereby grants to Affinitiv a non-exclusive, license, for the term of the Agreement, to copy, perform, distribute, create derivative works from, and use such third party intellectual property in connection with Affinitiv’s performance of its obligations pursuant to the Agreement. Customer represents and warrants that Customer has the written consent from the owner of such third party intellectual property, or a proper license or ownership right sufficient to allow the applicable use and to allow Customer to authorize Affinitiv to make such use of such third party intellectual property as set forth above. Customer further represents and warrants to Affinitiv that the use of the intellectual property of any third party as contemplated by the Agreement does not and will not infringe the intellectual property rights of any third party.
4.4 Customer Data. Affinitiv acknowledges and agrees that as between Customer and Affinitiv, Customer is the sole owner of all right, title, and interest in and to all data or content provided or made available to Affinitiv by or on behalf of Customer in connection with this Agreement. Customer reserves all rights in such content and data not expressly granted hereunder. Customer hereby authorizes Affinitiv to copy, distribute, display, store, process, create derivative works from, and use all such content or data in connection with Affinitiv’s performance of its obligations pursuant to the Agreement, including internal purposes of Affinitiv such as operating, maintaining, and improving Affinitiv’s products and services. Customer also grants Affinitiv an irrevocable, worldwide, non-exclusive, royalty-free and perpetual license to use, reproduce, distribute, display, process and store aggregated, de-identified data based on Customer’s data. Customer represents and warrants that Customer has all necessary rights and authorizations to provide the content and data to Affinitiv and to authorize Affinitiv to copy, distribute, and use such content and data as authorized hereunder. Customer expressly assumes the risk of any violation of law or rights, or any error or omission related to the provision of any data to Affinitiv or Affinitiv’s copying, storing, distribution, display, modification, or use of any data as contemplated under the Agreement.
4.5 Restrictions. Customer shall not itself, or permit any third party to, use the process which is used with any services or any variation thereof for any reason whatsoever other than as expressly authorized and contemplated by the Agreement. Customer shall not itself, or permit any third party to, use Customer’s access to Affinitiv’s products or services hereunder, to develop or offer similar products or services that would be competitive with the products or services offered by Affinitiv.
5. Customer Responsibilities
5.1 In addition to any responsibilities and obligations of Customer as set forth elsewhere in the Agreement, and without limiting any of the same, Customer shall:
5.1.1 Adopt, maintain, and use reasonable and appropriate security measures to maintain the confidentiality of all Confidential Information, protect the secrecy of all access credentials made available to Customer for use of any product or service under the Agreement, and secure Customer’s access and use of all products and services under the Agreement against malicious code, unauthorized access, or tampering;
5.1.2 Comply with all applicable laws, rules, and regulations;
5.1.3 Obtain and maintain proper and sufficient permissions and authorizations for the use of all third party data and intellectual property, including, without limitation, all personal data or information of any individual that will be provided to Affinitiv or used in connection with the Agreement;
5.1.4 Only use Affinitiv’s products or services in a manner that is consistent with the positive reputation of Affinitiv and its products and services in the marketplace and preserves for Affinitiv the goodwill associated with Affinitiv and its products and services;
5.1.5 Not take any action or inaction designed to, that is reasonably likely to, or actually does harm the reputation of Affinitiv or its products or services, or the goodwill associated with any of Affinitiv’s trade names, trademarks, or service marks;
5.1.6 Cooperate with Affinitiv as reasonably requested to facilitate Affinitiv’s performance of its obligations under the Agreement;
5.1.7 Provide reasonable access to Customer’s systems, data, and facilities to allow Affinitiv to perform its obligations under the Agreement; and
5.1.8 Make all decisions related to the appropriateness of data supplied to Affinitiv for use in connection with any product or service provided to Customer under the Agreement, and to the appropriateness of the use of such data pursuant to any product or service provided to Customer under the Agreement.
5.2 CUSTOMER WILL NOT USE THE SERVICES TO SEND, OR CONTRACT AFFINITIV TO SEND ON ITS BEHALF, ANY COMMUNICATION OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ELECTRONIC MAIL, VOICE MESSAGES OR TEXT, TO ANY INDIVIDUAL OR WIRELESS DEVICE UNLESS CUSTOMER HAS OBTAINED AN APPLICABLE “OPT-IN” CONSENT FROM THE APPLICABLE INDIVIDUAL TO RECEIVE SUCH COMMUNICATIONS.
6.1 Customer Indemnification. Customer shall defend each Customer Covered Claim (as defined herein) and shall indemnify and hold harmless Affinitiv and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section 6.1, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each a “Customer Covered Claim”): (i) a breach or non-fulfillment of any obligation, representation, warranty of Customer; (ii) a violation of law by Customer; or (iii) the unauthorized copying, disclosure, storing, processing, display or use of any personal information of any individual when such information was provided or made available to Affinitiv under the Agreement and the applicable copying, disclosure, storing, processing, display, or use was contemplated under the Agreement.
6.2 Affinitiv Indemnification. Affinitiv shall defend each Affinitiv Covered Claim (as defined herein) and shall indemnify and hold harmless Customer and its employees, agents, shareholders, officers, directors, successors and permitted assigns (for purposes of this Section 6.2, each and collectively the “Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including, without limitation, attorneys’ fees and the cost of enforcing any right to indemnification hereunder, arising out of or resulting from any demands, claims, investigations, lawsuits, or other proceedings of any kind made or brought against the Indemnified Party by a third party arising out of or relating to (each an “Affinitiv Covered Claim”): (i) an allegation that any product or service provided to Customer by Affinitiv under the Agreement infringes upon a United States copyright, United State patent, or applicable trade secret right of such third party; or (ii) any violation of law by Affinitiv except to the extent such alleged violation is conduct giving rise to a Customer Covered Claim as set forth in Section 6.1 of these Master Terms.
6.3 Procedure. With respect to all Customer Covered Claims and Affinitiv Covered Claims (hereafter collectively each such a “Covered Claim”) the Indemnified Party shall promptly notify the Indemnifying Party of any Covered Claim and tender to the Indemnifying Party sole control of the defense and settlement of the Covered Claim at the Indemnifying Party’s expense, provided that the Indemnifying party shall not settle any Covered Claim in a manner that adversely effects the Indemnified Party’s rights without the Indemnified Party’s prior written consent, which will not unreasonably be withheld or delayed. The Indemnified Party shall provide, at the reasonable request of the Indemnifying Party, and at the Indemnifying Party’s expense, cooperation and assistance in the defense of any Covered Claim. The Indemnified Party may, in any event, participate in and observe the proceedings of any Covered Claim at its own cost and expense with counsel of its own choosing. If the Indemnifying Party fails to accept the tender of defense of a Covered Claim in writing within ten (10) days after receiving notice of the Covered Claim from the Indemnified Party, then the Indemnified Party shall have the right to assume the exclusive defense of the Covered Claim at Indemnifying Party’s expense. Any failure or delay by the Indemnified Party in performance of its obligations under this Section 6.3 shall only relieve the Indemnifying Party of its indemnification obligation hereunder to the extent such failure or delay materially prejudices the Indemnifying Party’s ability to defend or settle such Covered Claim.
7. LIMITATIONS AND DISCLAIMERS
7.1 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THE AGREEMENT, AFFINITIV, AND EACH THIRD PARTY SOFTWARE PROVIDER, DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY PRODUCT OR SERVICE. AFFINITIV DOES NOT WARRANT THAT ANY PRODUCT OR SERVICE WILL OPERATE OR BE AVAILABLE WITHOUT INTERRUPTION OR BE ERROR FREE. AFFINITIV EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USE OR NON-USE OF ANY PRODUCT OR SERVICE. CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONTENT AND DATA PROVIDED TO AFFINITIV IN CONNECTION WITH THE AGREEMENT AND FOR ANY COPYING, DISTRIBUTION, DISPLAY, MODIFICATION, PROCESSING AND USE OF SUCH CONTENT OR DATA AS CONTEMPLATED IN THE AGREEMENT. AFFINITIV IS NOT RESPONSIBLE FOR THE RESULTS OBTAINED THROUGH THE USE OF ANY PRODUCT OR SERVICE AND DOES NOT REPRESENT, WARRANT, OR GUARANTEE ANY PARTICULAR RESULTS. AFFINITIV DOES NOT GUARANTEE THE SECURITY OF ANY DATA TRANSMITTED OVER THE INTERNET AND CUSTOMER UNDERSTANDS AND AGREES THAT THE PROVISION OF PRODUCTS OR SERVICES VIA THE INTERNET, AND CUSTOMER’S ACCESS OF ANY PRODUCT OR SERVICE VIA THE INTERNET, IS INHERENTLY UNSECURE AND DONE AT CUSTOMER’S SOLE RISK. AFFINITIV DOES NOT WARRANT OR GUARANTEE INFORMATION SECURITY IN RELATION TO ANY PRODUCTS OR SERVICES.
7.2 Third Party Warranties. Customer acknowledges and agrees that the products and services provided by Affinitiv under the Agreement main contain or require third party software or services, which shall be provided to Customer through or as part of Affinitiv’s products or services. AFFINITIV MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND WITH REGARD TO SUCH THIRD PARTY SOFTWARE OR SERVICES. Affinitiv agrees to pass through or assign to Customer any warranties provided by third parties with regard to such third party software or services to the extent so assignable.
7.3 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL AFFINITIV OR ANY THIRD PARTY SOFTWARE PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, COLLATERAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER PECUNIARY LOSS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LOST PROFITS, LOST BUSINESS, LOST GOODWILL, OR LOST DATA, ARISING OUT OF THE USE, OR INABILITY TO USE, ANY PRODUCT OR SERVICE HEREUNDER, OR OTHERWISE RELATED IN ANY WAY TO THE AGREEMENT OR A SUBJECT THEREOF, WHETHER ARISING UNDER THEORIES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHER THEORY, AND REGARDLESS WHETHER AFFINITIV OR THE THIRD PARTY SOFTWARE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR APPLICABLE INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL AFFINITIV’S AGGREGATE LIABILITY UNDER ANY PROVISION OF THE AGREEMENT OR OTHERWISE EXCEED THE LESSER OF THE TOTAL AMOUNT ACTUALLY RECEIVED BY AFFINITIV FROM CUSTOMER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO LIABILITY, OR $50,000. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS ARTICLE 7 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8. General Terms
8.1 Assignment. Customer may not assign the Agreement or any of Customer’s interests, rights or obligations thereunder, either by written agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of Affinitiv which may be exercised in the sole discretion of Affinitiv. Any purported assignment in violation of the foregoing shall be null and void ab initio. Affinitiv may assign this Agreement for any reason, in its sole discretion, including statutory assignments such as merger, and Affinitiv’s rights and/or obligations hereunder, including without limitation assignment of amounts due by Customer to a financial institution, factor or leasing company of Affinitiv’s choice. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon each of the parties and their respective permitted successors and assigns.
8.2 Severability. In the event any provision of the Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if, for any reason, any applicable authority finds that any provision of this Agreement is invalid, illegal or unenforceable as written, but by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. If it is determined that any product or service cannot be used for one or more applications by Customer as a result of restrictions set forth in applicable law, Customer agrees to comply with all such restrictions, and such restrictions shall not otherwise impact the terms of the Agreement.
8.3 Relationship of the Parties. The parties are and shall remain independent contractors to one another. Nothing herein, and no act taken in accordance with the Agreement, shall be deemed to establish a partnership, joint venture or agency relationship between the parties, and neither party shall have the right to obligate or bind the other party in any manner to any third party.
8.4 Force Majeure. Delays or failure of Affinitiv in the performance of any obligations under the Agreement, including but not limited to operation or performance of the any product or service, shall be excused where such a delay or failure is caused by events beyond the reasonable control of Affinitiv, including, but not limited to, accidents, fires, earthquakes, equipment malfunctions, service interruptions (including televisions, telephone, the internet), labor disputes and otherwise.
8.5 Entire Agreement. The Agreement, including these Master Terms and each applicable set of Product Specific Terms, constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement and supersedes all negotiations, proposals, or other agreements, and all prior or contemporaneous discussions, communications and understandings of the parties in connection with the subject matter of the Agreement. The Agreement may not be modified except by a written amendment expressly referring to the Agreement and executed by each party. Any additional or contrary terms and conditions contained on or in an invoice, purchase order, or other document concerning the subject matter of the Agreement shall have no effect and are hereby expressly rejected.
8.6 No Waiver. No term or provision of the Agreement shall be deemed waived and no breach excused, unless such waiver or excuse is in writing signed by the party granting such waiver or excusing such breach. No consent to, or waiver of, a breach, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by such party.
8.7 Governing Law, Jurisdiction and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Illinois and the United States, but without regard to conflicts of law principles thereof. Jurisdiction and venue for any dispute between the parties arising under or related to the Agreement shall be exclusively in the United States District Court for the Northern District of Illinois, or other courts located in Cook County, Illinois, as applicable, and the judgment of said courts on any matter may be entered in any court having jurisdiction over a party to the Agreement. Each party hereby expressly and irrevocably waives any right that it may have to contest the jurisdiction of such courts or the appropriateness of such venue.