Terms of Service: Services
AFS TECHNOLOGIES, INC. MASTER TERMS AND CONDITIONS OF SERVICE
IMPORTANT- READ THESE MASTER TERMS AND CONDITIONS OF SERVICE CAREFULLY BEFORE EXECUTING THE ACCEPTANCE FORM RELATED TO THE AFS TECHNOLOGIES SOFTWARE AS A SERVICE. ONCE YOU EXECUTE THE ACCEPTANCE FORM, WHICH BY ITS TERMS INCORPORATES THESE MASTER TERMS AND CONDITIONS OF SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE PROVISIONS SET FORTH IN THESE MASTER TERMS AND CONDITIONS OF SERVICE. IF YOU ARE EXECUTING THE ACCEPTANCE FORM AND AGREEING TO THESE MASTER TERMS AND CONDITIONS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE PROVISIONS OF THESE MASTER TERMS AND CONDITIONS OF SERVICE AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED HEREIN SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE PROVISIONS CONTAINED IN THESE MASTER TERMS AND CONDITIONS OF SERVICE YOU SHOULD NOT EXECUTE THE ACCEPTANCE FORM, IN WHICH CASE YOU MAY NOT USE THE SERVICES.
These Master Terms and Conditions of Service are incorporated by reference into and form a part of your signed Acceptance Form (together, with any and all attached, referenced or incorporated attachments, appendices, exhibits, addenda, statements of work, proposals with acceptance forms and amendments thereto, the “Acceptance Form”). Together, the Acceptance Form and these Master Terms and Conditions of Service shall constitute the agreement (the “Agreement”) between AFS Technologies, Inc., a Delaware corporation (“AFS”) and you (“Licensee”). This Agreement shall govern the provision of Service subscriptions to such software as a service provided by AFS identified on the corresponding Acceptance Form that forms a part of this Agreement, as well as the provision by AFS of Professional Services and Maintenance Services to you. Herein, AFS and Licensee may be referred to as a “party” or collectively as the “parties”.
“Acceptance Form” has the meaning set forth in the Preamble hereof and refers to the ordering document signed by you and AFS that incorporates these Master Terms and Conditions of Service.
“Administrator” means a User designated by you who is authorized to purchase the Service or Professional Services, execute written or digital Acceptance Forms and to otherwise administer your use of the Service.
“Affiliate” with respect to a party means any corporation or other entity that is directly or indirectly controlled by such party, or that controls the party or is under common control with the party; corporations or other entities that are Affiliates of the same corporation or other business entity will be deemed to be Affiliates of each other.
“AFS” means AFS Technologies, Inc., a Delaware corporation, with a principal business location of 2141 E. Highland Avenue, Phoenix, AZ 85016.
“AFS Technology” means AFS’ proprietary technology and Intellectual Property Rights therein (including, but not limited to, the Service, Content, Documentation, software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you or otherwise used by AFS in providing the Service, Content or Professional Services.
“Agreement” has the meaning set forth in the preamble to these Master Terms and Conditions of Service but, in any event, shall always be deemed to comprise both these Master Terms and Conditions of Service and any applicable Acceptance Form. For the avoidance of doubt, the individual reference herein to “Acceptance Form and this Agreement” shall not serve to preclude the inclusion of “Acceptance Form” where the term “Agreement” is used individually or separately.
“Content” means any proprietary audio and visual information, documents, software, products and services contained in or made available by AFS to you through its use of the Service.
“Data” means any data, information or material provided or submitted by an authorized party to the Service in the course of using the Service.
“Documentation” means the technical publications relating to the Service, such as reference, user, installation, systems administration and technical guides, delivered by AFS to you.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Maintenance Services” means the particular services offered by AFS from time to time to support your use of the Service and the standard terms and conditions thereto, in effect on the date such Maintenance Services are rendered. AFS may offer different levels of Maintenance Services for a Service from time to time.
“Professional Services” means the particular services offered by AFS and selected by you in the Acceptance Form that is used to onboard and implement your use of a Service. Professional Services may include installation, implementation, training and other consulting services.
“Release” means a major, significant Upgrade of one or more components of the Service.
“Service” means system administration, system management, and system monitoring activities that AFS performs for AFS programs, support services for such AFS programs, as well as any other services provided by AFS, as defined in the Acceptance Form and any schedules, attachments, addenda or exhibits attached thereto, including the specific configuration of AFS’ hosted services solutions (including both AFS online service applications and any offline components) listed on the applicable Acceptance Form as being licensed by AFS to you. The Service also includes Updates, if any, that are available. Unless specifically stated otherwise in the applicable Acceptance Form, AFS will only deliver the Service to you if and when such Service is generally commercially available.
“Service Patch” means an Update with respect to the Service that is designed to correct an impairment of existing functionality or more accurately achieve the specifications for the Service in existence on the date of the relevant Agreement.
“Service Upgrade” means an Update with respect to the Service that includes new or additional features or functions other than those included in the specifications for the Service set forth in the Documentation existing on the date of the relevant Agreement. A Service Upgrade includes any new “Releases.”
“Subsidiary” refers to any entity controlled by you through greater than fifty percent (50%) ownership of the voting securities.
“Term” means the term of your subscription for a Service, including the Initial Term and all Renewal Terms.
“Update” means a subsequent change, amendment and/or enhancement of the Service and Documentation which is generally made available to subscribers to the Service, as and when available (including Service Patches and Service Upgrades).
“Users” means you and your Affiliates’ employees, representatives, consultants, contractors, brokers or agents who are authorized by you to use the Service and have been supplied user identifications and passwords by you (or by AFS at your request).
“You” and “your” refers to the individual or entity that has ordered software as a service from AFS or an authorized distributor by executing the Acceptance Form.
2. RIGHT OF ACCESS AND USE
2.1 Right to Use Services. AFS hereby grants to you a non-exclusive, non-transferable (except as noted in Section 11.1 below), worldwide, limited term right to access and use the Service identified and described in the Acceptance Form, for up to the number of Users identified in the Acceptance Form, solely for your own lawful internal use during the Term in connection with your business. Unless otherwise specified by AFS, no software will be delivered to you as part of the Service. AFS will provide you with use of the Service, including a browser interface and data encryption, transmission, and access. Your Users, subject to the restrictions set forth in the Acceptance Form, are authorized to exercise the rights granted to you in this Section 2. All rights not expressly granted to you are reserved by AFS and its licensors. You may not access the Service if you or any of your Affiliates is/are or becomes a direct competitor of AFS, except with AFS’ prior written consent.
2.2 Reproduction Rights. The right to use the Service includes the right to reproduce or copy any portion of the Service (such as Documentation) which is provided to you in machine readable form or printed form, as necessary to support your internal use of the Service. In the event any such reproductions are made, you must include all copyright or trade secret notices on all copies, in whole or in part, in any form, including partial copies.
2.3 Restrictions. You may not disassemble, reverse engineer, decrypt, decompile, create derivative works from, or translate the Service or Content, or any portion thereof, or recreate or attempt to recreate the Service, in whole or in part by reference to the Service, or perform any process intended to determine the source code for the Service except to the extent that the foregoing restriction is prohibited by applicable law. You agree to use the Service solely as authorized in the Acceptance Form or this Agreement, and will not, and will not permit any Users to, do any of the following: (i) resell, sublicense, lease, time-share, use as a service bureau or otherwise make the Service or any Content or any portion thereof available to any third party (with the exception of your outsourced sales and marketing agencies and brokers) except as expressly authorized in the Acceptance Form or this Agreement; (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (iii) remove any trademarks, or copyright or other notices from any portion of the Content, Service or its Documentation; (iv) access or use the Content, Service or its Documentation for any purpose competitive to AFS, including the purpose of either building a competitive product or service or copying any ideas, features, functions, graphics or user interfaces of the Service or its Documentation; (v) access or use the Service or Content, or permit it to be accessed or used, for purposes of product or functionality evaluation, availability or performance monitoring, or any other benchmarking or comparative or analysis purposes, without AFS’ prior written consent; (vi) use the Service or Content other than in accordance with all applicable laws and regulations (including export laws); or (vii) permit access to the Content, Service or its Documentation by a direct competitor of AFS. You acknowledge and agree that any third party suppliers of the Service or Content to AFS are intended third party beneficiaries of the terms governing the Service under the relevant Agreement and such third parties may enforce such terms directly. The rights granted under this Agreement to a User cannot be shared or used by more than one individual User but may be reassigned from time to time to a new User who is replacing a former User who has terminated employment or otherwise changed job status or function and will no longer use the Service.
2.4 Prohibited Uses. You may use the Service only for your own lawful business purposes and shall not use the Service in whole or in part to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material harmful to children or violative of third party privacy rights; (iii) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) knowingly interfere with or disrupt the integrity or performance of the Service or the software contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. All of the foregoing shall be considered “Prohibited Uses.”
2.5 Suspension of Service. AFS may suspend the Service: (a) if AFS deems it necessary to prevent or terminate any Prohibited Use; or (b) upon notice to you if you commit a material breach of this Agreement. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including your obligation to pay fees.
AFS may temporarily suspend the Service for maintenance purposes. AFS will use commercially reasonable efforts to minimize any such disruption of Service. Upon suspension for any reason, AFS will provide you with written notice specifying the reason for the suspension.
2.6 Responsibilities. You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify AFS promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to AFS promptly and use reasonable efforts to stop immediately any improper copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another AFS user or provide false identity information to gain access to or use the Service.
2.7 Third Party Interactions. During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third party. AFS and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. AFS does not endorse any sites on the Internet that are linked through the Service; instead, AFS provides these links to you only as a matter of convenience, and in no event shall AFS or its licensors be responsible for any content, products, or other materials on or available from such sites. While AFS provides the Service to you pursuant to this Agreement, you recognize that certain third party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Certain features of the Service may interoperate with third party applications such as Microsoft Dynamics™, Netsuite™, Intaact™, Oracle™, SAP™, JD Edwards™, Sage MAS™, broker applications, and other ERP systems, and the Service in order to interoperate may depend on the continuing availability of such third parties’ respective application programming interfaces (“APIs”) and programs for use with the Service. If any of these third parties ceases to make its respective API or program available on reasonable terms for the Service, AFS may cease providing such Service features without entitling you to any refund, credit, or other compensation. Upon your request, AFS will disable the ability for advertisers or sponsors to show their goods and/or services through the Service provided to you.
2.8 Export Controls. The AFS Technology may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. and Canadian agencies. You acknowledge and agree that the Service shall not be used in or from, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries as to which the United States or Canada maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you hereby represent and warrant to AFS that neither you nor any of your Users is located in, under the control of, or a national or resident of an Embargoed Country or is a Designated National. You agree to comply strictly with all applicable U.S., Canadian, Swiss and European Union export laws and you assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Unless use from other territories is specified in the Acceptance Form, access and use of a Service may not be appropriate or available from locations outside the United States of America and Canada, and you are solely responsible for ensuring that such external use is in compliance with all applicable laws, including without limitation export and import regulations of the other countries. Any diversion of Content contrary to United States or Canadian law is prohibited.
2.9 Subsidiary Liability. Your Subsidiaries may use the Service but you remain directly and fully liable for each Subsidiary’s compliance with and breach of this Agreement.
2.10 Beta Releases. AFS reserves the right to materially change or discontinue any of its software or Services designated in Beta stage at any time and without notice to you. Access or use of software or Services identified as not generally available for commercial use, such as “Beta” or “Pre-Release” (“Beta Product”), is restricted to your internal performance evaluation of the Beta Product. Your access to the Beta Product may be interrupted during maintenance periods. AFS is not obligated to finally release any version of the Beta Product. You agree to report to AFS unusual, unplanned, or out of the ordinary events observed in the Beta Product. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE BETA PRODUCTS MAY CONTAIN BUGS, ERRORS AND DEFECTS AND ARE NOT EXPECTED TO FUNCTION WITHOUT INTERRUPTION, AND ARE PROVIDED WITHOUT WARRANTY OF ANY FORM.
3. PROFESSIONAL SERVICES; MAINTENANCE SERVICES
3.1 Professional Services. AFS may provide Professional Services as and if identified in an Acceptance Form. AFS reserves the right to determine the method, details and means of performing the contracted Professional Services. Unless otherwise specified in an Acceptance Form, Professional Services will be invoiced at AFS’ then current hourly rates and will be provided remotely.
3.2 Maintenance Services. AFS will provide you Maintenance Services to diagnose and resolve Service and other user problems, during such hours and with such response times as per the relevant contracted service level set forth in the Acceptance Form. Maintenance Services include the following: (i) AFS will respond to any claim by you that the Service fails to perform in accordance with the published Documentation; (ii) AFS will use commercially reasonable efforts to consult with and alert your operations personnel as to specific potential problems concerning the Service foreseen or encountered by the AFS support staff; and (iii) AFS will implement, at no charge, any Service Patch with respect to the Service. AFS will also, from time to time, implement Service Upgrades. Notwithstanding the foregoing or anything in this Agreement to the contrary, you must be current in the payment of Service fees and have an active subscription to the Service to be entitled to receive any Update, Service Patch or Service Upgrade.
3.3 Exclusions; Additional Charges. The Maintenance Services provided hereunder do not include work necessitated as a result of attempted maintenance of the Service by other than AFS personnel. If you request such excluded services, you must pay for such excluded services at AFS’ then current rates.
4. CHARGES AND PAYMENT
4.1 Payment Terms – General. Except as otherwise specified in the Acceptance Form, fees for Professional Services, together with travel and living expenses incurred in connection with same, will be invoiced as incurred, on a monthly basis. Travel and living expenses will be subject to your pre-approval and will only apply where there is a legitimate need to staff the project with AFS personnel from outside of your geographical area. Fees and charges for the Service or any other costs or expenses are set forth on the relevant Schedule. You are responsible for paying for the Service ordered for the entire Term, whether or not the Service is actively used unless non-use is based on continuous unavailability of the Service. An authorized Administrator may add services to the Service by executing (with the consent of AFS) an addendum to the Acceptance Form; any added services will be subject to the following: (i) added services will be coterminous with the preexisting Term; (ii) the subscription fee for the added services will be set forth in the new addendum to the Acceptance Form; and (iii) services added in the middle of a billing month will be charged in full for that first billing month. All pricing terms in an Acceptance Form are confidential, and you agree not to disclose them to any third party other than to your attorneys and advisors. Except as otherwise specified in an Acceptance Form, (i) you will pay AFS all fees in U.S. dollars and within thirty (30) days from the date of AFS’ invoice, and (ii) all payment obligations are non-cancelable, nonrefundable and non-contingent. You agree to provide AFS with complete and accurate billing and contact information, including your legal company name, street address, e-mail address, and name of an authorized billing contact, and to update this information within thirty (30) days of any change to it.
4.2 Billing Master Terms and Renewal. AFS generally charges and collects in advance for use of the Service. AFS will invoice you as mutually agreed in an Acceptance Form. The subscription fees for each Renewal Term will be the same as that during the prior Initial/Renewal Term unless AFS shall have given you written notice of a pricing increase at least 90 days before the end of the current Initial/Renewal Term, in which case the pricing increase will be effective upon the commencement of the next Renewal Term. Any such pricing increase will reflect any increase in the cost of living but will not exceed five (5%) percent of the pricing for the relevant Service in the immediately prior Initial/Renewal Term. In the case of pricing based upon Gross Revenues (and subject to Section 11.1), a pricing adjustment may occur once per year upon renewal of the Term.
4.3 Disputed Invoices; Late Payments. If you believe any AFS invoice is incorrect, you must contact AFS in writing at email@example.com. Any dispute regarding an invoice must be sent to AFS within sixty (60) days of the date of the invoice containing the amount in question to be eligible to claim an adjustment or credit. Otherwise, the invoice will be deemed to be correct and accepted by you absent manifest error. Any undisputed portions of an invoice remain due and payable per standard terms. Any payment (or any portion thereof) not received by AFS within thirty (30) days following the date of AFS’ invoice will bear interest at the annual rate of 18%, or the maximum rate allowed under applicable law, whichever is higher, thereafter until paid in full. In addition to any other rights granted to AFS herein, AFS reserves the right to suspend your access to the Service if your account becomes delinquent (falls into arrears) and any amounts due are not paid within ten (10) days after your receipt of a notice of non-payment from AFS. AFS reserves the right to impose a reconnection fee in the event a Service is suspended and you thereafter cure your monetary default and request reconnected access to the Service.
4.4 Taxes. AFS may add to all charges specified in the Acceptance Form any applicable taxes or any services or materials provided to you, or which are measured directly by payments made under this Agreement and are required to be collected or paid to taxing authorities by AFS (excluding taxes based on AFS’ net income).
5. INTELLECTUAL PROPERTY RIGHTS; PRIVACY AND SECURITY
5.1 Rights to the Service. AFS and its licensors own and shall retain all Intellectual Property Rights, title and interest to the AFS Technology, and any modifications and enhancements made to any components of same during the Term, even if made based upon an idea or recommendation provided by you. This Agreement does not convey or transfer any ownership rights in any AFS Technology. All information and knowledge about the AFS’ products, services, standards, specifications, procedures, and techniques which is not in the public domain or generally known, and such other information and material as AFS may designate as confidential, whenever and however communicated to you, will be deemed AFS Confidential Information for the purposes of this Agreement.
6. LIMITED WARRANTIES
6.1 The Service. AFS warrants that during the Term the Service will function substantially in accordance with the specifications contained in the relevant Documentation under normal use and circumstances. Should the Service fail to perform according to specifications, AFS’ sole obligation will be to provide the remedial maintenance described in this Section. AFS agrees to use commercially reasonable efforts to remedy defects in the Service to the extent that the Service does not conform to the applicable specifications in the Documentation. While AFS does not guarantee service results, or warrant that all reported defects will be corrected during the course of any particular performance of remedial maintenance, AFS does agree that it will use all commercially reasonable efforts to maintain the Service so that it complies with the specifications identified on the Acceptance Form and any Statement of Work attached thereto. Subject to Section 3.2, AFS’ support service will include, during any individual service call, one or more of the following actions: (i) provide a temporary bypass of the nonconforming portion of the Service; (ii) provide a Service Patch or a revised or updated Service program; or (iii) provide a notification that, during such particular service call, the problem could not be repeated, located, or identified.
6.2 Professional Services. AFS warrants that any Professional Services will be performed consistent with the specifications identified on the Acceptance Form and any Statement of Work attached thereto, provided that you notify AFS within thirty (30) days of performance of the Professional Services that you believe such Professional Services were not performed as warranted. No specific result from the provision of Professional Services is assured or guaranteed. For breach of this warranty, your exclusive remedy and AFS’ sole obligation and entire liability will be limited to, at AFS’ sole option (i) the re-performance of the Professional Services that were not as warranted at no additional charge to you, or (ii) refund of the fees paid or due to AFS for the Provisional Services that were not as warranted.
6.3 Warranty Disclaimers. AFS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) USE OF ANY SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) A SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH A SERVICE WILL MEET ITS REQUIREMENTS OR EXPECTATIONS. ASIDE FROM THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6. ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED BY AFS AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7. LIABILITY LIMITATIONS
7.1 No Consequential Damages; Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL AFS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID OR OWED BY YOU FOR THE SPECIFIC SOFTWARE AND/OR SERVICES GIVING RISE TO LIABILITY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST DATA, LOSS OF USE, LOST PROFITS, OR BUSINESS INTERRUPTION) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR PROFESSIONAL SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION OF THE SERVICE OR CONTENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Internet Delays. SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. AFS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS.
8.1 By AFS. Subject to Section 8.3, AFS will defend and hold you and your Users (other than brokers), officers, directors, employees, attorneys and agents harmless from and against any and all claims and any related costs, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a third party claim alleging that the Service or Professional Services deliverables, in the form provided by AFS, or your authorized access or use thereof, directly infringes or misappropriates such third party’s Intellectual Property Right. In the event an infringement claim is brought or threatened that AFS is obligated to defend under this Section 8, AFS may, at its sole option and expense (1) procure for you the right to continue using the Service and the deliverables or the infringing part, or (2) modify or amend the Service, deliverables or infringing part, or replace the Service, deliverables or infringing part with other deliverables having substantially the same or better capabilities or, if AFS in its discretion deems the foregoing clauses (1) and (2) to not be commercially feasible, then (3) AFS may cease provision of the Service and/or require you to return the deliverables or infringing part and refund amounts prepaid by you for the Service not delivered and amounts paid, if any, by you for Professional Services deliverables or the part thereof so returned. AFS’ obligations under this Section do not apply with respect to Services, Professional Services or portions or components thereof: (i) not supplied by AFS; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation (iii) made in accordance with your specifications; (iv) modified by anyone other than AFS, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where you or your Users or Affiliates continue the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
8.2 By You. Subject to Section 8.3, you will indemnify, defend and hold AFS, its licensors and each such party’s current, future and former Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims and any related costs, damages, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) your breach of this Agreement; (ii) taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on AFS’ income); (iii) claims by third parties arising from your use of the Service (excluding claims that the Service, as provided by AFS, infringes third party Intellectual Property Rights); (iv) claims by third parties alleging that AFS’ authorized storage or use of any of your Data infringes the rights of a third party; or (v) any reasonable costs and attorneys’ fees required for AFS to respond to a subpoena, court order or other official government inquiry regarding your use of the Service.
8.3 Procedure. A party’s obligation to indemnify the other under this Section 8 is subject to the indemnified party notifying the indemnifying party promptly in writing of any claim as to which indemnification will be sought and providing the indemnifying party reasonable cooperation in the defense and settlement thereof. In each case the indemnifying party will have the exclusive right to defend any such claim, and the indemnified party may not settle or compromise such claim without the prior written consent of the indemnifying party. An indemnified party may, at its sole cost and expense, monitor or participate in the defense of a claim with counsel of its own choosing.
9. TERM AND TERMINATION
9.1 Initial and Renewal Terms. The Term for each Service will be for the “Initial Term” set forth on the Acceptance Form; upon the expiration of the Initial Term, this Agreement may be renewed for recurring periods to be set forth in writing by both Parties (each a “Renewal Term”). Either party may terminate this Agreement or downgrade the Service, effective only upon the expiration of the then current Term; provided that written notice of intent to terminate must be provided (i) by AFS to you at least ninety (90) days prior to the last day of the then current Term and (ii) by you to AFS at least thirty (30) days prior to the last day of the then current Term. Notwithstanding the foregoing, AFS may, in its sole and absolute discretion upon written notice, terminate a free Service account at any time for any reason.
9.2 Termination for Cause. AFS, in its sole and absolute discretion, may terminate this Agreement (or any component thereof), your password, account or use of the Service if (i) you breach or otherwise fail to comply with this Agreement and such breach remains uncured for more than thirty (30) days following your receipt of notice thereof, (ii) you become insolvent, or (iii) you make an unauthorized assignment of this Agreement. You may terminate this Agreement if AFS breaches or otherwise fails to comply with this Agreement and such breach remains uncured for more than thirty (30) days following AFS’ receipt of notice thereof, and in the event of such termination you will not be responsible for any fees payable following the effective date of such termination.
9.3 Effect of Termination. In the event that this Agreement is terminated (and you are not in breach of this Agreement), AFS will return to you a file of the your Data in a machine-readable, non-proprietary format suitable for use for on a personal computer (i) if you terminate the Agreement, within thirty (30) days of termination if you so request at the time of termination, or (ii) if terminated by AFS, within thirty (30) days of your request provided you make such request within thirty (30) days of termination. In the event that AFS terminates the Agreement as a result of your breach and you cure such breach within ninety (90) days of the termination, AFS will return to you a file of your Data within thirty (30) days of your request (provided such request is made at or before the time of cure), at AFS’ then current rates for such services. You agree and acknowledge that, other than as specifically set forth in this Agreement, AFS has no obligation to retain your Data and may delete your Data after the periods referred to in the two immediately preceding sentences, as applicable.
9.4 Survival. The provisions of this Agreement, which by their nature are intended to survive expiration or termination, shall survive, including but not limited to obligations concerning confidentiality, protection of Intellectual Property Rights, indemnification, dispute resolution and payment of unpaid fees and expenses.
10. APPLICABLE LAW
10.1 Governing Law; Jurisdiction. This Agreement will be governed by the law of the State of Arizona, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona.
10.2 Attorneys’ Fees. In case of any action or proceeding to compel compliance with, or for a breach of, any of the provisions of this Agreement, the prevailing party will be entitled to recover from the losing party all costs of such action or proceeding, including, but not limited to, reasonable attorneys’ fees.
11.1 Assignability. You may not, without AFS’ prior written consent, which will not be unreasonably withheld, assign your rights under this Agreement (including any applicable Application Form) or any right or license created or deemed to have been created thereunder, including by operation of law, to any third party. However, you may, without such consent, upon 30 days’ prior written notice to AFS, assign or transfer your complete rights under this Agreement to a parent or subsidiary or the surviving entity in any merger or acquisition, or to any entity that obtains either a controlling or majority interest in the equity of your legal entity, provided in each case that the surviving entity/acquirer is not directly or indirectly controlled by a competitor, or an Affiliate of a competitor, of AFS; and provided further, that if the pricing in an Acceptance Form is based upon your “Gross Revenues,” then upon consummation of a permitted assignment under this Section, the assignee may, in AFS’ sole discretion, be subject to a one-time Gross Revenue adjustment prior to the commencement of a Renewal Term to account for a change in Gross Revenues resulting from such an assignment. Any purported assignment in violation of this Section shall be void.
11.2 Notice. Except as otherwise provided, any notices or demands required to be given herein will be given to the parties in writing, by certified or registered mail, return receipt requested, at the address hereinafter set forth, or to such other addresses as the parties may hereinafter substitute by written notice given in the manner prescribed in this paragraph. Notice is deemed given hereunder on the date of receipt of the notice by the party to which the notice is given as indicated on the return receipt. You may also give notice to AFS at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to AFS at 2141 E Highland Ave. Suite 100, Phoenix, AZ 85016 to the attention of: Chief Financial Officer. Notice to you will be to the contact information for you set forth on the relevant Acceptance Form to which the notice relates.
11.3 Legal Construction. The provisions of this Agreement are and will be severable, and if any such provisions or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remaining provision of this Agreement, and the application of such provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected thereby. It is the intention of the parties that this Agreement will be valid and will be enforced to the fullest extent permitted by law.
11.4 Amendments. This Agreement may be amended only by a written document executed by a duly authorized representative of each of the parties, unless expressly provided otherwise herein. No purchase order or other document that purports to modify or supplement this Agreement will add to or vary the terms of this Agreement, and all proposed variations or additions (whether submitted by AFS or you) are deemed material and objected to unless otherwise agreed to in a writing signed by both parties.
11.5 No Waiver. The failure by a party to exercise or enforce any right hereunder will not operate as a waiver of such party’s right to exercise or enforce such right or any other right in the future. Except for actions for: (i) nonpayment of amounts owed to AFS; or (ii) breach of AFS’ or it licensors’ rights in the Service or Documentation or either party’s confidential information obligations, no action or other proceeding, regardless of form, arising out of, relating to or in any way connected with this Agreement, the Services, Maintenance Services or Professional Services may be brought by either party more than four (4) years after the cause of action has accrued.
11.6 Force Majeure. You and AFS will be excused for any delay or failure in performance under this Agreement for any period if and to the extent that (a) such a delay or failure is caused by factors beyond the reasonable control of that party including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, terrorist attacks, governmental regulations imposed after the fact, fire, communications line failures, power failures, earthquakes, severe weather, or floods or other natural disasters, and (b) such delay or failure could not have been prevented by reasonable precautions by that party. Delays or failures that are excused as provided in this section will result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure.
11.7 Relationship of Parties. This Agreement does not and shall not be deemed to make the parties partners, joint venturers, or agents of one another. All parties are acting as independent contractors.
11.8 Entire Agreement. THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND AFS GOVERNING THE PERFORMANCE OF THE SERVICES AND CANNOT BE ALTERED, AMENDED, OR MODIFIED EXCEPT IN WRITING EXECUTED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY. THIS AGREEMENT REPLACES AND SUPERSEDES ANY PRIOR VERBAL OR WRITTEN UNDERSTANDINGS, COMMUNICATIONS, AND REPRESENTATIONS BETWEEN THE PARTIES RELATING TO ITS SUBJECT MATTER, EXCEPT FOR ANY SEPARATE CONFIDENTIALITY AGREEMENT THAT MAY BE IN PLACE.
11.9 Due Authority; Binding Agreement. Each party to this Agreement represents and warrants to the other that: (i) it has full power and authority to enter into this Agreement (including the applicable Acceptance Form) and to perform its respective obligations herein; and, (ii) this Agreement represents a valid and legally binding obligation of such party and is enforceable against such party in accordance with its terms.