Terms and Conditions of the Affinaquest Service

INTRODUCTION

This master subscription Agreement (“Agreement”) governs your acquisition and use of our services.

If you register for a free trial of our services, this agreement will also govern that free trial.

This is an agreement between You and Affinaquest for the use of the Affinaquest service.  “You” refers to the entity which is accepting these terms and conditions through the authorized individual accepting the Agreement.  If You do not agree with the terms of this Agreement, click the “Cancel” button and do not use the Affinaquest service.

By accepting this agreement by clicking a box indicating your acceptance, You agree on behalf of Your organization to the legally binding terms and conditions below governing Your use of the Affinaquest service.

You represent that You have the authority to bind your organization to this Agreement and commit funds on its behalf, and the terms “You” and “Your” will refer to that company or organization. If You do not have that authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the services.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on November 13, 2011. It is effective between You and Us as of the date of You accepting this Agreement.

 

1.  FREE TRIAL

If you register for a free trial, We will make the Affinaquest Service available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the Service or (b) the start date of any Purchased Services ordered by You. You may authorize Your employees or consultants assisting You in the implementation and evaluation of the service who are not employed by competitors of Affinaquest to access the Service.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.  YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING SECTIONS 8 AND 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

 

2.  AFFINAQUEST SERVICE

“Affinaquest Service” means the application referred to as Affinaquest which has been developed by Affinaquest and is available to operate in conjunction with the Salesforce.com Service which is hosted by Salesforce.com,  the third party provider of application services which is hosting the Affinaquest Service in conjunction with the Salesforce.com Service. The Affinaquest Service also includes any Affinaquest Service documentation and any other updates, or upgrades to such Affinaquest Service which are provided by Affinaquest from time to time in connection with this service. This Agreement does not apply to, and expressly excludes the Salesforce.com Service.

2.1. Provision of Affinaquest Services. Affinaquest shall make the Affinaquest Service available to Licensee pursuant to this Agreement during a subscription term. Licensee agrees that Licensee purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Affinaquest staff regarding future functionality or features.

2.2. User Subscriptions.  Affinaquest Services are purchased as User Subscriptions and may be accessed by no more than the specified number of Users.  The initial ten (10) User Subscriptions are purchased at the rate of ninety-nine dollars ($99.00) per month.  Additional User subscriptions may be added during the applicable subscription term for ten dollars ($10.00) per month per User, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added.  The added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Affinaquest Services.

2.3.  Term of Agreement.  The initial term of this agreement shall be for one year.  Subsequent terms shall be for one year.

 

3. FEES AND PAYMENT FOR PURCHASED SERVICES

3.1. Fees. You shall pay all fees specified hereunder. Except as otherwise specified herein, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the current subscription term. User subscription fees are based on monthly periods; fees for User subscriptions added in the middle of a monthly period will be charged at a pro rata for the remainder of the subscription term in effect at the time the additional User subscriptions are added.

3.2  Invoicing and Payment.  The payment for the initial term shall be made by check.  You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

3.3 Overdue Charges.  If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or (b) the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

3.4 Suspension of Service.  If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, suspend Our services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue.

3.5 Payment Disputes.  We shall not exercise Our rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

3.6  Taxes.  Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

4.  SALESFORCE.COM SERVICE RELATIONSHIP

In order to access the Affinaquest Service, Licensee is required to subscribe to the Salesforce.com Service for not less than the number of User Subscriptions. Licensee represents and warrants that Licensee has entered into an agreement with SFDC sufficient to meet those requirements. Use of the Affinaquest Service shall be subject to any use restrictions for the Salesforce.com Service to which Licensee are subject, including but not limited to users, storage limits, and bandwidth limits.

 

5.  PROPRIETARY RIGHTS

5.1  Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2  Restrictions.  You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

5.3  Your Applications and Code.  If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

5.4 Your Data.  Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.  You grant to Affinaquest a non-exclusive license to use, copy, store, modify and display Your Data solely to the extent necessary to provide the Affinaquest Service to You. You, not Affinaquest, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all You Data, and Affinaquest shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.  Upon termination for any reason, your right to access or use Your Data immediately ceases, and Affinaquest shall have no obligation to maintain or forward Your Data

5.5  Suggestions.  We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

 

6.  CONFIDENTIALITY

6.1  Definition of Confidential Information.  As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2  Protection of Confidential Information.  The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

6.3  Compelled Disclosure.   The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

 

7.  PROHIBITED USES

You may not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile or reverse engineer the Affinaquest Service or any Affinaquest intellectual property, except as explicitly permitted hereunder. The Affinaquest Service is provided solely for Your benefit, and not, by implication or otherwise, to any parent, subsidiary or affiliate of Yours. You may not (i) permit access to the Affinaquest Service to a competitor of Affinaquest, except with Affinaquest’s prior written consent; (ii) access the Affinaquest Service in order to determine its uptime percentage, performance or other benchmarking metrics, (iii) build an application with similar features, design, user interface, appearance or functionality; (iv) use the Affinaquest Services in connection with any (a) infringement or misappropriation of intellectual property rights; or (b) defamation, libel, slander, obscenity or violation of the rights of privacy or publicity; (v) send or store material containing computer viruses, “Trojan horse” software, logic bombs, or other malicious computer code, files, scripts, agents or programs;(vi) use the Affinaquest Service in any manner that could adversely impact the operation, security or performance of the Affinaquest Service; (vii) attempt to gain unauthorized access to the Affinaquest Service; or (viii) store or otherwise handle personal information in violation of any applicable law or financial information of Your members or constituents. You are solely responsible for all activity with respect to Your Affinaquest Service account and shall abide by all applicable laws and regulations in connection with Your use of the Affinaquest Service, including any which address privacy and technical or personal data and the storage and transmission thereof. You shall notify Affinaquest of any unauthorized use of any password or account or any other known or suspected breach of security. You acknowledge that the Affinaquest Service may experience  limitations, delays, and other problems commonly occurring in the use of the internet and computer communications and that Affinaquest is not responsible for damages arising thereof.

 

8.  SUPPORT SERVICES

Affinaquest will provide online, e-mail and forum based support to Licensee during the Term of this Agreement. Affinaquest Support will assist Your Authorized Users with the following types of issues: Error messages that occur when accessing Affinaquest Services, and questions about functionality and features unique to Affinaquest Services such as Gift Processing, Prospect Management, and Campaign Management.  Questions regarding Salesforce.com specific functionality may be referred to SalesForce.com support.

 

9.  WARRANTIES AND DISCLAIMERS

9.1 We warrant that (i) We have validly entered into this Agreement and have the legal power to do so,  and that the functionality of the Services will not be materially decreased during a subscription term. For any breach of this warranty, Your exclusive remedy shall be as provided in Section 10.2 (Termination).

9.2  Your Warranties.  You warrant that You have validly entered into this Agreement and have the legal power to do so.

9.3  Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

YOU UNDERSTAND AND AGREE THAT THE AFFINAQUEST SERVICES ARE PROVIDED “AS IS” AND AFFINAQUEST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AFFINAQUEST MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE AFFINAQUEST SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE AFFINAQUEST SERVICES, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE AFFINAQUEST SERVICES IS AT YOUR SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE AFFINAQUEST SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE AFFINAQUEST SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE AFFINAQUEST SERVICES REMAINS WITH YOU. You agree to indemnify, defend and hold harmless Affinaquest, its affiliates, officers, directors, employees, consultants, agents, suppliers and resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorneys fees) arising from Your use of the Affinaquest Service.

9.4  Limitation of Liability.  AFFINAQUEST WILL NOT BE LIABLE TO YOU FOR ANY CLAIM ARISING UNDER OR RELATING TO THE AGREEMENT, THE AFFINAQUEST SERVICES OR ANY OTHER SERVICES PROVIDED BY AFFINAQUEST UNDER ANY THEORY OF LIABILITY INCLUDING CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL DAMAGES, LOSS OF REVENUES OR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY.

 

10.  TERM AND TERMINATION

10.1  Term of Agreement.  This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.  The Initial Term of the Affinaquest Service shall be for a period of twelve (12) months, unless sooner terminated as provided in this Agreement. Upon expiration of the Initial Term, the Affinaquest Service shall automatically renew for successive renewal terms of one (1) year each (each a “Renewal Term”).  All payments for Initial Term and Renewal Term(s) are non-refundable.  If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

10.2 Termination.  You may terminate this Agreement at any time by notifying Affinaquest that you do not intend to enter into an additional renewal period.  Affinaquest may terminate this Agreement by providing You with a 90 day advance notice.

10.3. Surviving Provisions. Section 3 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6 (Confidentiality), 9.3 (Disclaimer), 9.4 (Limitation of Liability), and 11 (General Provisions) shall survive any termination or expiration of this Agreement.

 

11.  GENERAL PROVISIONS

11.1 Choice of Law and Forum. This Agreement shall be governed by and construed under the laws of the State of Virginia, U.S.A., as applied to agreements entered into and to be performed in Virginia by Virginia residents. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Williamsburg, VA, USA.

11.2 Waiver and Severability. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.

11.3. Export Restrictions. Licensee acknowledges that the Affinaquest Service, or portion thereof may be subject to the export control laws of the United States. Licensee will not export, re-export, divert, transfer or disclose any portion of the Affinaquest Service or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.

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

11.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

11.6. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

11.7.  Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.8. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.