Affinio Audience Intelligence Platform Terms of Service

Version: April 1, 2022

These term of service (“Terms of Service” or “TOS”) govern your access to and use of Services, Results and Deliverables (defined in Section 15), unless you and Affinio have executed a master services agreement. 

References to “Affinio” means Affinio Holdings Inc. References to “Client” means you or, if applicable, the entity (legal person) that you represent. Other terms with initial letters capitalized are defined in Section 15 or elsewhere in these TOS. 

You represent that you are of the age of majority in your country of residence and are lawfully able to enter into contracts. If you are entering into these TOS on behalf of an entity, such as the company you own or work for, you represent to Affinio that you have the legal authority to bind that entity.

1. Provision of the Subscription Services

1.1 Generally. Client may access and use the Subscription Services in accordance with these TOS and applicable Order Forms to create Results using the Client Data and Third Party Datasets. Affinio will (a) make the Subscription Services available to Client pursuant to these Terms of Service and applicable Order Forms, (b) provide basic technical support for the Subscription Services at no additional charge or, if purchased, upgraded technical support, (c) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (i) scheduled maintenance and planned downtime and (ii) any unavailability caused by a Force Majeure Event.

1.2 License. Affinio or its licensors own all right, title, and interest in and to the Subscription Services and Affinio Content and all related technology and intellectual property rights.  Subject to Client’s compliance with these Terms of Service, Affinio grants Client a limited, royalty-free, revocable, non-exclusive, non-sublicensable, non-transferrable license to copy and use the Affinio Content made available to Client through the Subscription Services solely in connection with Client’s and its Users’ permitted use of the Subscription Services during the Subscription Term. Except as expressly provided in this Section 1.2, neither Client nor any Users obtain any other rights to the Subscription Services and Affinio Content, including any related intellectual property rights. 

1.3 Client Responsibilities. Client will (a) be responsible for Users’ compliance with these TOS, (b) adhere to Affinio’s data upload and file format guidelines as communicated to Client when uploading Client Data; (c) be responsible for the accuracy, quality and legality of Client Data and the means by which Client acquired Client Data, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Results, and notify Affinio promptly of any such unauthorized access or use, (e) access and use Services and Results only in accordance with these TOS, Order Forms, applicable laws and regulations, and applicable industry guidelines and principles, and (f) comply with rules, guidelines, policies (including but not limited to privacy policies) and terms of use (as amended from time to time) of any Third Party Services with which Client uses the Services.
 
2. Managed Services

2.1 Description. This Section 2 applies if Affinio provides Managed Services to Client. The description of the Managed Services and any Deliverables will be set out in an Order Form or other document expressly referencing these TOS. Managed Services do not include advisory, training or professional services in support of any other application or platform or any advisory, training or professional services that do not directly support the Subscription Services or the provision of Results. 

2.2 Travel. Managed Services are provided remotely. If Affinio and Client agree to provide Managed Services onsite at Client’s location, Client shall reimburse Affinio for pre-approved transportation, lodging, meals and other related expenses without markup. 

2.3 Cooperation. Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Managed Services.  Each party is wholly responsible for the actions and performance of its employees and their compliance with the party’s respective responsibilities under these TOS and any Order Form. Client will provide Affinio with a contact name who will co-ordinate the Managed Services with Affinio.

2.4 Limited Warranty. Affinio warrants that the Managed Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards and that the Deliverables, if any, will materially conform to the description and/or specifications in the Order Form (“Managed Services Warranty”). If Affinio breaches the Managed Services Warranty and Client notifies Affinio of the breach within thirty (30) days of the performance of the applicable Managed Services or delivery of the applicable Deliverables, Affinio shall re-perform the Managed Services or correct any errors in the Deliverables, as applicable. If Affinio is unable to re-perform the Managed Services or deliver the Deliverables as warranted, Client shall be entitled to recover the fees paid to Affinio for the deficient Managed Services, if such fees have been listed and charged separately under an Order Form. The remedies provided for in this Section are Client’s sole and exclusive remedy for the Managed Services Warranty.

3. Fees. 

3.1 Fees. Client will pay to Affinio the fees and other charges set out in the applicable Order Forms (the “Fees”). Client is responsible for confirming the accuracy of all quantities ordered. 

3.2 Taxes. Fees are exclusive of all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) imposed by taxing authorities (“Taxes”). The Client shall be responsible for payment of, and indemnify Affinio from, of all such Taxes; provided, however, for clarity, Client is not responsible for taxes based solely on Affinio’s income or net profits. If Affinio has the legal obligation to pay or collect taxes for which the Client is responsible, the appropriate amount shall be invoiced to and paid by the Client unless the Client provides Affinio with a valid tax exemption certificate authorized by the appropriate taxation authority.

3.3 Payment Terms. Unless otherwise set out in the applicable Order Form, Client will pay all Fees and Taxes in accordance with the following provisions:(a) all Fees and Taxes will be invoiced to Client, and Client agrees to pay all amounts invoiced that are not disputed within fifteen (15) days after the date of the invoice; (b) invoices issued to Client are due and payable within thirty (30) days of the date of the applicable invoice;(c) interest will be charged on outstanding overdue balances at a rate of 1.5% per month or the maximum allowable by law, whichever is less;(d) quantities purchased cannot be decreased during the Subscription Term; and (e) Fees are non-refundable except as otherwise provided herein. In the event of a dispute, the parties will use their best efforts to resolve the dispute within thirty (30) days of Client’s notice of dispute.

3.4 Invoicing. Invoices will be sent via email to the billing contact listed on the Order Form.  Client is responsible for the accuracy of all billing information and updating such information where necessary.  Affinio will not be responsible for misdirected invoices. Affinio will issue one invoice per billing period to the named Client only. Client’s failure to issue purchase order numbers within that time period will not act to extend or delay issuance of the invoice and the subsequent start of the payment-due period.

4. Trials. 

4.1 Trial Services. Affinio may make certain Services available on a complimentary or trial basis (collectively, “Trial Services”). Trial Services will be designated as complimentary, trial or by similar terms. 

4.2 Liability for Trial Services. Notwithstanding anything to the contrary in these Terms of Service, (a) all Trial Services are provided “as is” and “as available”; (b) all representations, warranties and conditions with respect to the Trial Services are expressly disclaimed; (c) Affinio shall have no indemnification obligations for any claims arising out of or relating to Trial Services; and (d) Affinio’s aggregate total liability arising out of or relating to the Trial Services shall not exceed US$50,000.

4.3 Retention Period. Unless the Trial Services are converted to paid Subscription Services within thirty (30) days of the end of the designated trial period, all Client Data submitted to the Services and Results may be irretrievably deleted from the Subscription Services.

5. Agencies

5.1 Client as Agency. Client may use the Subscription Services as an Agency for its own end customer only if it has been approved by Affinio to act as an Agency. Affinio may decline Client’s request for approval in its sole discretion.  

5.2 Representations and Warranties. When Client is acting as an Agency, Client represents and warrants that: (a) it has the necessary consents and permissions to access and use the Services on behalf of its end customer; (b) it has the necessary consents and permissions to provide any Confidential Information, including Client Data, belonging to its end customer to Affinio for (i) access and use of the Services, including processing of the Client Data by the Services; and (b) enabling the Third Party Services and the use of Third Party Datasets; (3) it is permitted to authorize the use of the end customer’s accounts with the Third Party Services and (4) it is permitted to perform any activities which are necessary to authorize, access or use the Third Party Services and Third Party Datasets on behalf of its end customer.

6. Service Restrictions & Acceptable UseService Restrictions. Client will not, directly or indirectly, and will not permit any User to: (a) use the Services other than as permitted by these TOS; (b) provide any Personal Data to Affinio or the Services, except to the extent necessary for Affinio to provide the Services; (c) provide any Sensitive Personal Data to the Services; (d) encourage, assist or permit any User to share such User’s login information with any other party or to allow any third party to access the Services through a User’s account; (e) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, syndicate, offer on a service bureau, rental or managed service basis, create links to, frame or mirror on any other server or other device, or otherwise commercially exploit or make the Services available to any third party, except as expressly permitted by these Terms of Service; (f) use the Subscription Services to upload, collect, transmit, store, use or process any content, data or information (excluding any content, data, or information contained in any Results that is not, in each case, provided by Client) that: (1) Client does not have the lawful right to upload, collect, transmit, store, use, or process, as applicable; (2) would violate any confidentiality or fiduciary obligations of Client with respect to such content, data, or information if so uploaded, collected, transmitted, stored, used, or processed, as applicable; (3) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of privacy or publicity); (4) is tortious, defamatory, obscene, or offensive; or (5) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (g) use the Subscription Services to send, store, publish, post, upload or otherwise transmit any Malicious Code; (h) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (i) use or permit the use of any security testing tool, robot, spider, crawler, scraper, any other automatic software, camera or other device, or manual process in order to probe, scan or attempt to penetrate or ascertain the security of, or otherwise monitor or copy, the Subscription Services; (j) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; (k) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services; (l) interfere with, disrupt, impede, disable, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any features or functionality of the Services, including, without limitation, any mechanism used to restrict or control the functionality of any software protection or monitoring mechanisms of the Subscription Services.

6.2 Export Data. If Client receives exports of Third Party Datasets such as (i) followers/ids, (ii) friends/ids, or (iii) users/lookups (collectively, “Export Data”), Client shall only use such Export Data for internal purposes permitted by these TOS. Client shall not publish or disseminate such Export Data in any manner or use such Export Data for any of the following purposes: (a) TV measurement and rating, (b) de-anonymizing users or deriving/matching/targeting users' identities on other networks, platforms, or data sets, (c) a consumer-facing use case (such as direct marketing to individuals), (d) a Governmental Authority use case (such as directly targeting or surveilling individuals), or (e) using the Export Data to build a customer base on a social media service (such as by directly contacting individuals).

7. Connected Services

7.1 Connected Services. Client does not need to use Connected Services in order to use the core functionality of the Subscription Services. Client acknowledges that the ability to use a Connected Service may require Client to maintain an active account in good standing with the relevant Connected Service provider or authorize Affinio to communicate information to the provider of the Connected Service to create an account for the Client. Each party hereto shall be solely responsible for any fees that it owes to a Connected Service provider. Client acknowledges and agrees that Connected Services may impose requirements and cause delays that are beyond Affinio’s control. Further, participation in Connected Services is subject to the terms and conditions and privacy, advertising and marketing policies promulgated by the applicable Connected Services.  Affinio does not warrant the Connected Services and will not be liable for any delay, failure or error caused by the acts or omissions of Connected Services, or for the acts or omissions required pursuant to a Connected Service provider’s terms and conditions and privacy, advertising and marketing policies. Affinio does not provide training services or support in connection with the Connected Services.

8. Privacy and Security

8.1 Affinio Data Privacy Obligations. Affinio will provide the Services in compliance with all applicable Data Privacy Laws. Affinio will comply with the Affinio Privacy Notice (available at: https://www.affinio.com/privacy-notice) with respect to any Personal Data in Account information and Usage Data. The Affinio Privacy Notice does not apply to Client Data. Instead, Client Data (including Personal Data in the Client Data) shall only be accessed, used, disclosed and otherwise processed  for the purposes of providing the Services to Client in accordance with Client’s instructions and these TOS. Client authorizes Affinio personnel to access the Client’s instance of the Subscription Services, the Client Data and any Third Party Services authorized by Client to interact with the Subscription Services in accordance with this TOS to the extent reasonably necessary to provide the Services or as otherwise instructed by Client. Affinio personnel who require such access have signed confidentiality agreements with Affinio.

8.2 Client Data Privacy Obligations. Client will comply with all Data Privacy Laws in collecting and providing the Client Data to Affinio and when using the Services with respect to such Client Data. Client represents and warrants that: (a) it has full and sufficient right, title, and authority to provide any Personal Data within Client Data in accordance with applicable Data Privacy Laws, Client’s privacy policies and any agreements with any person to whom such Personal Data applies; (b) it has provided all necessary notices and obtained all necessary consents, including any consents applicable to collection and processing of the Personal Data contained within Client Data, from any person to whom such Personal Data applies, which are required to grant the rights under these TOS; (c) the Client Data does not infringe any data, privacy or other rights of any third party; (d) it will not make available the Services and Results to, and will not act on behalf of, any public entity that will use the Services and Results; and (e) it will not, on its own behalf, use the Services and Results; for the following purposes: (1)targeting, segmenting, or profiling individuals based on any Sensitive Personal Data or sensitive categories of personal information prohibited by applicable Rules; or (2) enabling the use of data to violate the Universal Declaration of Human Rights, including without limitation Articles 12, 18, or 19.

8.3 Obligations Regarding Third Party Datasets. Client authorizes the use of its Client Data with Third Party Datasets and any Connected Services for any purpose which is required in order for Affinio to provide the Services authorized by Client under this Agreement.  Client warrants and represents that it has obtained the necessary data subject consents for the use of Client Data with the Third Party Datasets and Connected Services including, where applicable, the transfer of Client Data to Connected Services. Client must comply with the terms and conditions of Third Party Data sets. See www.affinio.com/third-party-services for a list of applicable terms and conditions. 

8.4 Affinio Data Security Obligations. Affinio will implement, maintain and follow appropriate, physical, organizational and technical safeguards that are appropriate to protect the confidentiality, security and integrity of the Client Data, having regard to the risk of Security Incidents. Affinio may use service providers, including hosting providers, to provide the Services, provided that Affinio is wholly responsible for the actions and performance of such service providers. Affinio will notify Client in the event of a Security Incident as soon feasible and without undue delay after determining a Security Incident has affected Client Data.

8.5 Client Data Security Obligations. Except to the extent caused by Affinio’s breach of these TOS, Client is responsible for all activities that occur under Client’s account and User account credentials, regardless of whether the activities are authorized by Client or undertaken by Client, Client’s users or a third party. Client and Users are responsible for protecting the confidentiality of credentials used to access the Subscription Services. Except to the extent caused by Affinio’s breach of these TOS, Affinio and its affiliates are not responsible for unauthorized access to Client’s instance of the Subscription Services. 

9. Term, Termination, Suspension.

9.1 Term. These Terms of Service commence when the Services, including any Trial Services, commence, and shall continue until all Order Forms expire or have been terminated. 

9.2 Subscription Term. The term of each subscription will be as specified in the applicable Order Form or, if no term is stated, the term shall be one (1) year (“Initial Subscription Term”).  Except as otherwise specified in an Order Form, subscriptions will automatically renew for consecutive one (1) year periods (each a “Renewal Term” and together with the Initial Subscription Term, the “Subscription Term”) at the then-applicable rates for the Subscription Services and the same number of seats, unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the relevant subscription term or the Order Form is updated or replaced for the Renewal Term.

9.3 Suspension or Limitation on Access and Use. Affinio may suspend or limit (as appropriate and as determined in Affinio’s sole discretion) Client’s access to or use of the Services, Affinio Content, Third Party Datasets and/or Connected Services, or any component of the foregoing, in order to: (a) prevent any misuse or abuse of the Services, Affinio Content, Third Party Datasets and/or Connected Services,; (b) prevent any damage to, or degradation of the integrity of Affinio’s systems or property; (c) comply with any law, regulation, court order, or other Governmental Authority request or order; (d) as required to comply with a request of the provider of a Third Party Dataset or Connected Service; or (e) otherwise protect Affinio from potential legal liability or harm to its reputation or business. Affinio will provide notice of suspension as soon as feasible, provided, however, that Affinio many provide advance notice if doing so would expose Affinio or any other legal or natural person to potential harm. Affinio shall not be liable to Client for limiting or terminating Client’s access to the Services as provided above. 

9.4 Termination. (a) In addition to any other termination right set out in these TOS, either party has the right to, and may, terminate all Order Forms, along with these Terms of Service, upon notice to the other party: (i) if the other party commits a material breach of any provision of these Terms of Service or an Order Form and, if capable of being cured, does not cure such breach within ten (10) days after receiving notice from the non-breaching party of such breach; or (ii) in the event of the liquidation or insolvency of, the appointment of a receiver or similar officer for, or the assignment for the benefit of creditors by the other party, or the filing of a petition in bankruptcy by or against the other party. (b) Affinio may terminate the applicable Order Form, along with these Terms of Service, upon notice to Client in the event that Affinio’s ability to support or offer the Services or any part thereof is impeded by the actions of one or more third parties or Affinio has suspended or limited the Services pursuant to Section 9.3 and the reasons for the suspension or limitation have not been resolved within ten (10) days. (c) If Client terminates these Terms of Service pursuant to Section 9.4(a)(i) or if Affinio terminates these Terms of Service pursuant to Section 9.4(b), Affinio will refund to Client a pro-rated portion of Fees paid by Client but not used.

9.5 Consequences of Termination. Upon termination or expiration of these TOS, Client will immediately cease all access to and use of the Services and Affinio will deactivate Client’s and Client’s Users’ access to the Services and may delete all Client Data and Results in accordance with Affinio’s data retention and destruction schedule.

10. Proprietary Rights.

10.1 Reservation of Rights in the Services. Client agrees that Affinio is the owner of the Services and Affinio Content and retains all rights, title and interest in and to the Services and Affinio Content, including any and all updates, modifications, customizations, translations, derivative works, adaptations and copies thereof, irrespective of the manner of creation or the medium or form in which they may exist.

10.2 Third Party Datasets. Affinio does not own the Third Party Datasets. Affinio will use commercially reasonable efforts to procure and maintain the availability of Third Party Datasets. Affinio may discontinue Client’s access to such Third Party Dataset through the Services if Affinio is required by a licensor or any third party rights holder to remove Third Party Datasets, or receives information that Third Party Datasets provided to Client may violate applicable law or third-party rights, or if the owner of Third Party Dataset no longer provides access to the Third Party Dataset. Affinio will provide as much prior notice as is feasible in the circumstances before discontinuing Client’s access to a Third Party Dataset. Such notice may be made displayed through the Subscription Services or provided a notice sent to Client’s email address associated with Client’s account. 

10.3 Connected Services. If Affinio receives information that a Connected Service or the use of the Connected Service with the Services may violate applicable law or third-party rights, Affinio may so notify Client and disable such Connected Service. Affinio will provide as much prior notice as is feasible before discontinuing Client’s access to a Connected Service. Such notice may be made displayed through the Subscription Services or provided a notice sent to Client’s email address associated with Client’s account.

10.4 Ownership of Results.  The parties acknowledge and agree that Client is the owner of the Results, and Affinio has no right to reuse or resell Results generated by Client through the use of the Services in accordance with these Terms of Services. Notwithstanding the foregoing: (a) Affinio retains the right to generate and provide reports to third parties, that, in whole or in part, have the same content as any of the Results, based on identical or similar input data provided by the third party, and generating and providing such reports shall not be a breach of confidentiality; and (b) Client grants Affinio a transferrable, sublicensable, royalty-free, fully paid-up, worldwide license to copy, use, reproduce, modify, develop, access, collect and store the Results for the purpose of providing the Services.

10.5 Ownership of Deliverables. Deliverables are works made for hire and, upon payment of the Fees in full, Affinio (a) transfers and assigns to Client all right, title and interest, in and to the Deliverables and waive all moral rights in and to the Deliverables except for any Affinio Pre-Existing Materials incorporated into the Deliverables; and (b) grants Client a fully-paid up, royalty free, irrevocable,  Upon payment of the Fees for the Deliverables, Affinio royalty-free, fully paid-up, worldwide license to copy, use, and reproduce the incorporated Affinio Pre-Existing Materials in order to use the Deliverables.

10.6 License to Host Client Data. Client or its licensors are the sole owners of the Client Data. Client grants Affinio a worldwide, limited-term license to host, copy and transmit the Client Data in order to perform the Services for Client in accordance with these TOS and the applicable Order Form.

10.7 Government Authority. The Services may not be made available directly or indirectly to any Governmental Authority without prior approval of Affinio, which approval may be withheld in its sole discretion. Any use case directly or indirectly involving a Government Authority must be submitted to Affinio identifying the Government Authority and the proposed use. Additional terms, conditions and restrictions may apply, including, without limitation, provisions regarding ownership of intellectual property rights in and to the Services and Third Party Datasets.

10.8 Feedback.  Client grants to Affinio a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of Affinio’s services.

10.9 Promotion.  Affinio may publicize its relationship with Client.  Client grants to Affinio a time-limited, revocable, nonexclusive license to display Client’s trademark on Affinio’s website.

11. Indemnification.

11.1 Indemnification by Affinio. Subject to Section 11.2 below, Affinio will defend and indemnify Client, its present and future officers, directors, employees, agents, licensors, and suppliers, from any and all damages, expenses, costs or losses suffered by Client, as finally awarded against Client by a court of competent jurisdiction (“Client Losses”), including any reasonable outside attorneys’ fees and court costs incurred by Client in respect of the foregoing, to the extent such Client Losses result from any claim, proceeding, or suit brought by a third party against Client alleging that Client’s receipt of the Services, Affinio Content, Deliverables or Results infringe any validly issued patent or copyright (“Claim Against Client”). 

11.2 Conditions. Affinio will have no obligation under Section 11.1 in respect of any Client Losses or Claim Against Client to the extent that such Client Losses or Claim Against Client arises out of or is based upon: (i) receipt of the Services in combination with products or services not provided by Affinio if such infringement would not have arisen but for such combination; (ii) any part of the Services that is provided in accordance with any technical designs, requirements, or specifications required by or provided by the Client, if the alleged infringement would not have arisen but for the compliance with such technical designs, requirements, or specifications; (iii) receipt of the Services by Client for purposes not intended by or in violation of these Terms of Service; or (iv) any modification of the Services not made or authorized in writing by Affinio where such infringement would not have occurred absent such modification.  Affinio will have no obligation under Section 11.1 for Claims Against Client or Client Losses arising out of or based on Content, Client’s use of the Results in breach of applicable laws, or a Client’s breach of these Terms of Service or any Order Form.

11.3 Mitigation. If Affinio receives information about an infringement claim related to the Subscription Services, Affinio may in its sole discretion and at no cost to the Client: (i) modify the Subscription Services so that they are no longer claimed to infringe, or (ii) terminate Client’s use of the Subscription Services upon written notice and refund Client any prepaid fees covering the remainder of the term of the terminated Subscription Services.

11.4 Indemnification by Client. Client will defend and indemnify Affinio, its present and future officers, directors, employees, agents, licensors, suppliers and any third party service providers to the Services from any and all damages, expenses, costs or losses suffered by Affinio, as finally awarded against Affinio by a court of competent jurisdiction (“Affinio Losses”), including any reasonable outside attorneys’ fees and court costs incurred by Affinio in respect of the foregoing, to the extent such Affinio Losses result from any claim, proceeding, or suit brought by a third party against Affinio resulting from (i) any violation by Client of Section 6 or Section 8.2 of these Terms of Service or the terms of any Order Form; (ii) an allegation that the Client Data or Client’s use of the Client Data in combination with the Third Party Datasets violates the intellectual property rights or  any privacy rights of a third party; (iii) arises out of or relates to Client’s use of any Connected Services, including Customer’s breach of any terms or conditions applicable to any Connected Services; or (iv) arises out of or relates to a dispute between Client acting as an Agency and its customers (each of which is a “Claim Against Affinio”).  Notwithstanding the foregoing, Client shall not be obligated to indemnify Affinio for any act or omission of Affinio that constitutes negligence or breach of a duty imposed on Affinio by applicable law.

11.5 Procedure. (i) The indemnitee shall give the indemnitor prompt written notice of any Claim; (ii) the indemnitee shall give the indemnitor full and complete control over the defense and settlement of the Claim; (iii) the indemnitee shall provide assistance, at the indemnitor’s sole cost, in connection with the defense and settlement of the Claim as the indemnitor may reasonably request; and (iv) the indemnitee will not settle any Claim without the indemnitor’s prior written consent, such consent not to be unreasonably withheld.

11.6 Exclusive Remedy.  This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

12. Disclaimers, Limitation of Liability.

12.1 DISCLAIMERS. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND RESULTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CLIENT’S USE OF THE SERVICES AND RESULTS ARE AT ITS SOLE RISK. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS IN RESPECT OF THE SERVICES, THE DELIVERABLES, THE RESULTS, THE AFFINIO CONTENT, THE CONNECTED SERVICES OR THIRD PARTY DATASETS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLIENT IS SOLELY RESPONSIBLE FOR THE SELECTION, INTERPRETATION AND USE OF ANY RESULTS OBTAINED FROM THE SERVICES, THE DELIVERABLES, THE RESULTS, THE AFFINIO CONTENT, THE CONNECTED SERVICES AND THIRD PARTY DATASETS, AND FOR ENSURING THAT THEIR USE BY CLIENT DOES NOT VIOLATE ANY LEGAL OBLIGATIONS (WHETHER IMPOSED BY STATUTE, CONTRACT OR OTHERWISE) OR OBLIGATIONS IMPOSED UNDER APPLICABLE INDUSTRY GUIDELINES AND PRINCIPLES.

12.2 Direct Damages. Neither party’s total liability to the other party will exceed the sum of all Fees paid by Client for the Services in the immediately preceding twelve (12) months. This section will apply irrespective of the nature of the cause of action, demand or claim, including breach of contract (including fundamental breach), negligence, tort, or any other legal or equitable theory; provided, however, that this section will not apply to Client’s obligation to pay Fees or Taxes under the applicable Order Form(s) or to Client’s indemnification obligations in these TOS.

12.3 Consequential and Related Damages. To the extent permitted by applicable law, neither Affinio nor Client and their respective affiliates, directors, officers, employees and agents will be liable for any indirect, special, exemplary, incidental, cover or consequential damages or damages for loss of business profits, revenues or good will; business interruption; loss of business information or other pecuniary loss; lost data; loss of computer time; failure to realize expected savings; and any other commercial or economic loss of any kind, irrespective of whether the party has advance notice of the possibility of such damages.  

13. CONFIDENTIAL INFORMATION

13.1 Duty of Confidentiality.  Affinio and Client hereby agree that during the term of these TOS and at all times thereafter it (the “Recipient”) will not: (a) disclose any Confidential Information of the other party (the “Discloser”) to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under the Order Form(s) or these Terms of Service; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. 

13.2 Safeguards. The Recipient will use at least the same degree of care in safeguarding the Confidential Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. 

13.3 Disclosure. Notwithstanding anything in this Section 13, the Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under the applicable Order Form or these Terms of Service or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure (to the extent legally permissible) and reasonably cooperates with the Discloser to seek an appropriate protective order if required by the Discloser.

13.4 Injunctive Relief.  Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions. 

14. GENERAL

14.1 Modification and Waiver. Affinio may modify these TOS by posting a new version of the TOS at https://www.affinio.com/terms-of-service or successor URL. Any amendment to these TOS will become effective upon the earlier of: (i) Client entering into a new Order Form or (ii) the renewal of the Subscription Services. Any amendment to these TOS by Client will not be effective unless agreed to in a writing by both Client and Affinio that specifically references these TOS. Any consent to or waiver of a breach by a party, whether express or implied, will not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof will be deemed waived and no breach excused.

14.2 Interpretation. The division of these Terms of Service into Articles and Sections, and the insertion of headings, are for convenience of reference only and will not affect the construction or interpretation of these Terms of Service. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. Where the words “including”, “include” or “includes” are used in these Terms of Service, they mean “including (or include or includes, as applicable) without limitation”. The language used in these Terms of Service is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

14.3 Assignment. Client may not assign these Terms of Service or any of Client’s rights or obligations hereunder, in whole or in part, without the prior written consent of Affinio.  Affinio may assign these Terms of Service or any of Affinio’s rights or obligations hereunder, in whole or in part, without Client’s consent. Any purported assignment in violation of this Section shall be null and void.

14.4 Governing Law. These Terms of Service will be governed by and construed in accordance with the internal law of the State of New York and the federal laws of the United States of America applicable hereto without reference to conflict of laws provisions. The parties hereby irrevocably attorn to the exclusive jurisdiction and venue of the state and federal courts sitting in the County of New York, State of New York over any dispute arising hereunder.  The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, as amended, replaced or reenacted from time to time. Affinio and Client agree that, unless prohibited by law, any proceedings to resolve or litigate any dispute arising hereunder will be conducted solely on an individual basis, and that Client will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Client acts or proposes to act in a representative capacity. Client further agrees that, unless prohibited by law, no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of Affinio and all parties to any such proceeding. Client hereby waives any right it may have to a trial by jury.

14.5 Severability. If any part of these Terms of Service is held to be unenforceable or invalid, it will be severed from the rest of these Terms of Service, which, along with each applicable Order Form, will continue in full force and effect.

14.6 Force Majeure. Affinio will have no obligation to provide Services, and will not be liable to Client, to the extent and for the period that Affinio is prevented from doing so by reason of any Force Majeure Event. In the event that a Affinio is prevented for a period of thirty (30) consecutive days from providing the Services, Client may terminate these TOS and the applicable Order Form(s) and Affinio will refund to Client a pro-rated portion of Fees paid by Client but not used. 

14.7 Entire Agreement. These Terms of Service and any schedules or other documents referred to herein together with all applicable Order Forms, constitute the entire agreement between the parties relating to the Services and supersede all prior and contemporaneous written and oral agreements, representations and other communications between the parties, and will inure to the benefit of and be binding upon each of Client and Affinio and their respective successors and permitted assigns. The parties agree that any term or condition stated in a Client purchase order or other Client order documentation is void.  In the event of any conflict or inconsistency between the Order Form and these Terms of Service, the applicable Order Form shall govern.

14.8 Survival. Sections 3 (Fees), 4.2 (Liability for Trial Services), 9.4 (Termination), 9.5 (Consequences of Termination), 10 (Proprietary Rights), 11 (Indemnification), 12 (Disclaimers; Limitation of Liability); 13 (Confidentiality) and 14 (General) will survive the termination or expiry of these Terms of Service.

14.9 Notice. Except as otherwise set out in these TOS, any notice, consent or approval required or permitted to be given in connection with these Terms of Service (in this Section referred to as a “Notice”) will be in writing and will be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery) or transmitted to the applicable contact person and address identified in the applicable Order Form or, if Notice is being given to Affinio:  General Counsel
PO Box 29099
RPO Halifax Shopping Centre
Halifax, NS B3L 4T8 Canada With a copy to: legal@affinio.com Any Notice delivered or transmitted to a party as provided above will be deemed to have been given and received on the day it is delivered or transmitted, provided that it is delivered or transmitted on a business day prior to 5:00 p.m. local time in the place of delivery or receipt.  However, if the Notice is delivered or transmitted after 5:00 p.m. local time or if such day is not a business day then the Notice will be deemed to have been given and received on the next business day.

14.10 Anti-Bribery; Sanctions. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms of Service. Each party will comply with all applicable anti-corruption, anti-money laundering, and international trade laws and regulations (“Sanctions”) of Canada, the United States, European Union, United Kingdom, United Nations and any other Governmental Authority with jurisdiction over this TOS or either party. Each party represents and warrants that it is not a subject of Sanctions, is not owned or controlled by any person or entity subject to Sanctions, is not located or organized in, or owned or controlled by Persons or entities in a jurisdiction subject to Sanctions, and will immediately notify the other party if any such representation or warranty change.

14.11 Export Compliance. Client will not permit any User to access or use the Service in a country named on Canada’s Area Control List under Canada’s Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), or in violation of any Canadian or U.S. export law or regulation.

14.12 Relationship of the Parties.  The parties are independent contractors.  The Terms of Service does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

15. DefinitionsAccount Information” means information about Client and Users that is provided to Affinio in connection with the creation or administration of the Affinio account.

Affinio Content” means software, data, text, audio, video or images owned or licensed by Affinio used to provide the Services. Affinio Content does not include Third Party Datasets and Connected Services. 

Agency” a consultancy, advertising agency or channel partner that, in each case, has been approved by Affinio to access and use the Services on behalf of a third party.

Client Data” means electronic data and information submitted by or for Client to the Services for processing. Client Data does not include Usage Data.

Confidential Information” of a party means all information of such party that is disclosed by such party to the other party or obtained by the other party in connection with the applicable Order Form or these Terms of Service and is either marked as “confidential” or “proprietary” or is information that a reasonable person would understand to be confidential or proprietary; provided, however, that a party’s Confidential Information does not include: (a) information already known or independently developed by the other party outside the scope of the applicable Order Form or these Terms of Service by personnel not having access to any  Confidential Information of such party; (b) information that is publicly available through no wrongful act of the other party, or (c) information received by the other party from a third party who was free to disclose it without confidentiality obligations. Results and Client Data are Confidential Information of the Client. 

Connected Service” means a software application provided by a third party services provider which is authorized by the Client (i) to interoperate with the Service, (ii) to provide Client Data to the Services or from which the Services may access Client Data or (iii) to use outputs, including Results, from the Services. Connected Services may include advertising platforms, social media platforms, data management platforms, and customer relations management applications.

Data Protection Laws” means all applicable privacy and data protection laws, rules, regulations, and regulatory guidelines, as well as any applicable self-regulatory guidelines.

Deliverable” means documents and work product created specifically by Affinio for Client as part of the Managed Services.  For clarity, Results and Affinio Content are not Deliverables. 

Force Majeure Event” cause beyond its reasonable control, including, without limitation, acts of God, acts of Governmental Authorities, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Affinio employees), the inability to use or the failure of any third-party telecommunications carrier or Internet service provider, the unavailability of any third-party supplied products or services, the complete or partial unavailability of data from third parties (including Third Party Datasets) for any reason, or for issues associated with third party networks, systems, or infrastructure outages or latencies or denial of service attacks.

Governmental Authority” means the government of the United States of America, Canada or any other nation or any political subdivision thereof, whether provincial, state or local, and any agency, commission, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

Malicious Code” means code, files, scripts, agents or programs including, for example, viruses, worms, time bombs, infected files and Trojan horses or other computer programming routines that are intended to or reasonably may damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another. 

Managed Services” means professional services provided to Client and described in an Order Form. 

Order Form” means an ordering document, including any addenda and supplements thereto, specifying the Services to be provided hereunder that is entered into between Client and Affinio.

Personal Data” means any information defined as personally identifiable or personal information by the applicable Data Protection Laws of the jurisdiction in which the relevant individual resides.

Pre-Existing Materials” means all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Affinio in connection with performing the Services, in each case developed or acquired by Affinio other than as a Deliverable.

Results” means the results, in graphical or report form, made available to the Client as a result of the processing undertaken by the Services utilizing the Client Data and Third Party Datasets. Results may be in the form of “queries” or “reports” depending on the type of Subscription Services ordered by the Client and the type of results requested through the Subscription Services.

Security Incident” means unauthorized access to, use of or disclosure of Client Data resulting from an actual breach of Affinio’s physical, technical or organizational measures.

Sensitive Personal Data” means data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or finances (including credit card data) or data concerning a natural person’s sex life or sexual orientation.

Services” means the Subscription Services and the Managed Services but excludes Connected Services, Third Party Datasets, and Results. 

Subscription Services” means the web-based software-as-a-service application, data analysis, application programming interfaces and related algorithms and processes that are ordered by Client under an Order Form issued by Affinio referencing these Terms of Service and made available online by Affinio, as well as basic technical support or additional support ordered under an Order Form. Subscription Services may be labelled “Express” or “Classic”. Subscription Services do not include Affinio’s Snowflake services. 

Third Party Datasets” means datasets provided by a third party, including through Connected Services, which may be processed by the Services together with the Client Data to form the basis of the Results.

Usage Data” means information about Client and Users and Client’s and Users’ use of the Subscription Services. 

User” means a natural person who is authorized by Client to use the Services, for whom Client has purchased the Services, and to who has been supplied a user identification and password.  Users may include employees, consultants, contractors and agents of Client, and third parties with which Client transacts business. A User does not include (i) an entity unaffiliated with Client or (ii) an automated process or bot.