AFFILIMATE TERMS OF SERVICE

Company provides the Service to the Customer as part of a software-as-a-service model, subject to these Terms of Service. General terms and conditions of the Customer do not apply, regardless of whether Company has expressly objected to them in a particular case.

By using the Service, now or in the future, Customer agrees to the latest Terms of Service. These Terms of Service apply to any of Company's existing products, and all features Company may add to the Service over time, unless otherwise specifically mentioned in terms applicable to specific products. If a situation arises wherein Company does not exercise or enforce any right or provision in these Terms of Service, in doing so, Company is not waiving that right or provision.

Company's Data Processing Addendum (DPA), if applicable, forms part of these Terms of Service.

1. Defined Terms

“Agreement” means these Terms of Service, including, if applicable, any Order Form and the DPA.

“Authorized User” means an individual who is an employee, contractor, or agent of Customer and who is authorized by Customer to access and use the Service on Customer’s behalf, and to whom a user identification and password for the Service has been supplied. Customer is liable for all acts and omissions of its Authorized Users under Customer’s account.

“Customer” means an individual exercising commercial or self-employed professional activities or a business entity or organization that enters into this Agreement for use of the Service in connection with its business operations. For the avoidance of doubt, the Service is offered solely for business-to-business use and is not intended for use by individual consumers.

"Company": Adaero Software Inc., a Delaware corporation and a wholly-owned subsidiary of Adaero Software GmbH (the “Parent”), licensed by the Parent to provide the Service and to use the name "Affilimate".

“Company Content” means content published by Company, including imagery, documentation, marketing materials, and other materials published on the Website or Company’s social media channels.

“Confidential Information” means any information disclosed by either Company or Customer (the “Disclosing Party”) to the other (the “Receiving Party”), whether orally, in writing, electronically, or by inspection of tangible objects that is designated as “Confidential,” “Proprietary,” or some similar designation, constitutes trade secrets, or by its nature or the circumstances of disclosure would reasonably be understood to be confidential. Confidential Information will not, however, include any information which: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. For the avoidance of doubt, the terms and conditions of this Agreement (including pricing) shall be deemed Confidential Information of Company.

“Creator Customer” has the meaning set forth in Section 7.2 of this Agreement.

“Customer Data” means any and all information, data or material, including visitor data from the Customer, that is (i) submitted by Customer to the Service, (ii) collected by Company on behalf of the Customer and/or collected, from Customer’s website or other third-party sources, or (iii) collected, developed, or derived in connection with Customer’s products or services, data provided directly by Customer’s end users of those products or services, or data supplied by Customer to the Company for the use of the Service and/or Software. For the avoidance of doubt, Feedback, survey responses, and reports or other evaluative or analytical data are not considered Customer Data. Company shall have the unrestricted right to use such excluded data for any purposes, provided that such use does not disclose any Confidential Information of the Customer.

“Enterprise Customer” has the meaning set forth in Section 7.2 of this Agreement.

“Feedback” means feedback to Company on the Service or Software including, without limitation, feedback on usability, bug reports, and related information and documentation, which may be obtained from, or may be given by, Customer but it is not obliged to.

“Group” means, collectively, the Company, the Parent, and any entity that directly or indirectly controls, is controlled by, or is under common control with the Company or the Parent, where “control” means the ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest of such entity.

“Intellectual Property” or “Intellectual Property Rights” means all: (a) trade secrets; (b) patents and patent applications; (c) trademarks and trademark applications; (d) service marks and service mark applications; (e) trade names; (f) Internet domain names; (g) copyrights and copyright applications; (h) moral rights; (i) database rights; (j) design rights; (k) rights in know-how; (l) rights in inventions (whether patentable or not); (m) renewals or extensions of subsections (a) through (l) of this definition; (n) goodwill associated with subsections (a) through (h) of this definition, and (o) all other equivalent rights anywhere in the world.

“Law” means all applicable federal, state, and local laws, statutes, ordinances, regulations, rules, executive orders, and binding judicial or administrative interpretations, including but not limited to data privacy and data protection laws.

"Order Form" means a mutually executed ordering document or online order specifying the Service, fees, subscription term, and any other terms agreed between the parties.

“Platform” or “Software” means the proprietary software-as-a-service (SaaS) solution developed within the Group and operated by Company under license, including but not limited to the web application, tracking script (also called "snippet"), browser extensions, API, and associated tools, all of them in their most recent version. Details of the web application are set out in the documentation that can be found at the following link: https://app.affilimate.com/docs. For clarity, the Software includes all Updates, bug fixes, error corrections, changes, enhancements, new versions, new releases, new features, Upgrades, functionality changes, and improvements thereto.

“Service” means the provision of the Software through the Website, the browser extensions, all of them in their most recent version including standard, add-on, and custom features, technical support, onboarding, and any additional services as specified in an applicable Order Form.

“Terms of Service” means these terms and conditions in the latest version.

“Update” means, collectively, modifications, improvements, additions, extensions, translations, bug fixes, enhancements, releases, successors, derivative works, and updates to the Software.

“Upgrade” means any and all new versions of the Software, which adds major enhancements or modifications to the functionality or features to the Software.

“Website” means the publicly available website at affilimate.com, including its subdomains, documentation pages, and publicly available resources.

If Customer does not understand any of the language in these Terms of Service, please contact Company before, or refrain from, using the Service.

Customer may not access or use the Service unless Customer agrees to comply with all of the Terms of Service set out in this Agreement. Any violation of these Terms of Service or this Agreement may result in the termination of Customer’s account.

2. Ownership and license

1. Ownership. Customer may not claim Intellectual Property or exclusive ownership rights to any of the Service. All Intellectual Property Rights in and to the Software and the Service are and shall remain the property of the Parent (or, to the extent assigned, another member of the Group). Nothing in this Agreement grants Customer any right, title, or interest in or to the Software or Service, except for the limited license expressly set forth herein.

2. License. Subject to this Agreement, in particular payment of agreed-upon fees, the Company grants the Customer a non-exclusive, non-assignable, non-transferable, with no right to sub-license, worldwide limited right to use the Software for the duration of the subscription within the agreed scope and for internal business use only.

3. License Limitations, Reverse Engineering.

1. Customer may reproduce the Software only as necessary for its intended use as per the current performance description. Such permitted reproduction includes (a) loading the Software in the working memory on the provider's server; and (b) installing and using any client-side components expressly provided by Company for local deployment on Customer's hardware, solely as required for the Software's intended functionality. Customer shall not otherwise install, copy, or store the Software on any Customer's data media (such as hard drives or suchlike) of the hardware deployed by Customer.

2. Customer is not permitted, and shall not permit any third party, to decompile, disassemble, decode, reverse engineer, adapt or otherwise attempt to derive the source code of the Software, in whole or in part, nor observe, test, analyze its functioning in order to, among others, obtain Confidential Information or underlying ideas, or algorithms.

3. Customer has no right to access, use, or receive the source code for the Software.

4. Open-Source Software. Certain client-side components of the Software may include open-source software. To the extent such components may be distributed to the Customer (e.g. browser extensions, SDKs), their use is subject to their respective license terms, which prevail over these Terms of Service solely to the extent required by the applicable license.

3. Company Content

All Company Content, including imagery and documentation that is published on the Website or Company’s social media channels, is the property of the Parent (or, to the extent assigned, another member of the Group) unless otherwise stated. Customer may not replicate Company Content without prior written consent. Company Content from the Website shall not be used or exploited for commercial or non-commercial purposes without the prior written consent of the Company.

4. Account terms

1. Account Creation. Company will send the Customer access information and instructions required for use. In order to use the Service, Customer must create an account with a User ID and password.

2. Signup Information. Customer must provide a full legal name and a valid email address of an Authorized User in order to complete the signup process.

3. Account Sharing. Customer may not share its account login information with any third party for the purpose of sharing access to the Service. Customer may add additional Authorized Users to its account through the available team management functionality, subject to the subscription plan and any applicable fees.

4. Account Security. Customer and its Authorized Users are responsible for maintaining the security of the account and password. The Company cannot and will not be liable for any loss or damage from Customer’s failure to comply with this security obligation.

5. Responsibility. Customer is responsible for any activity that occurs under its account, including any activity by Authorized Users who have logins under the account.

6. Unauthorized Automated Access. Registering and accessing Customer’s account through a bot or other automated method is not permitted. Customer may only access the Service through interfaces and methods expressly provided and authorized by the Company (such as the API, dashboard, or other approved tools).

5. Usage Terms

1. Illegal Use. Customer may not use the Service for an illegal purpose, or to violate any applicable Law. Customer, on its own behalf and on behalf of its Authorized Users, undertakes not to store any content that is illegal, in breach of applicable Law or official requirement, or that infringes rights of third parties in Company's system.

2. Malware Protection. Customer undertakes to check its data and information for viruses or other harmful components using state-of-the-art anti-virus programs before entering such data and/or information.

3. Prohibited Conduct. Customer (including Authorized Users) must not

1. programmatically scrape or extract large volumes of historical or real-time data from the Service;

2. employ methods that circumvent applicable rate limits, usage caps, or subscription tiers;

3. generate excessive load on Company’s systems or databases in a manner inconsistent with ordinary use;

4. remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of any documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software.

1. Remedies. If Customer breaches this Section 5 (Usage Terms), the Company may suspend or terminate the Customer’s account with immediate effect. In addition, without limiting any other remedies available to Company, the Company shall be entitled to recover from Customer all actual damages and costs arising from such abuse, including but not limited to additional infrastructure, bandwidth, and personnel costs incurred, as well as database overuse charges. Company’s right to seek injunctive or other equitable relief shall not be limited by this provision.

2. Acknowledgements. The Customer acknowledges and agrees that (i) unauthorized scraping, circumvention, or other abusive conduct materially harms the Company and its infrastructure, and (ii) the foregoing remedies do not preclude the Company from seeking injunctive relief or additional damages where appropriate under applicable Law.

6. Customer Data & Representations

1. Customer Data Collection. Customer may collect, integrate and/or extract Customer Data in, to and from the Service and Company, upon Customer's request and for the purpose of providing the Service, can collect, integrate or extract Customer Data in, to and from the Service through various methods, including an API connection with the third party source, uploading CSV/XLSX files containing data and data extracted via browser extension.

2. Guarantees Regarding Customer Data. To the extent possible and in good faith, Customer guarantees on its own behalf and on behalf of its Authorized Users that (i) Customer is permitted to use, upload and share the Customer Data in the manner chosen by Customer, (ii) Company is permitted to make use of the API connection, upload and/or extraction on behalf of and for the benefit of Customer, and (iii) the use of and access to the API connection, upload, extraction and the use of Customer’s login credentials by the Company does not infringe any terms or agreements between the Customer and the applicable third party. Customer shall inform Company immediately if there are any indications that a third party restricts the use of the respective API connection or if there is any doubt regarding infringement of third-party contracts. In such case, Company shall have the right to cease providing the API connection and shall continue to provide the other Service under this Agreement.

3. Use of Customer Data. Company is permitted to use Customer Data solely for the purpose of providing the Service to Customer, subject to the terms and conditions outlined in this Agreement. Company must not use the Customer Data for an illegal purpose, or for the purpose of violating any applicable Law. Company will not share or distribute Customer Data with any third party, except for those agreed upon by both parties. Company’s use of Customer Data is subject to compliance with applicable policies, guidelines, terms of use, terms of service, code of conduct, and other relevant requirements related to the use of Customer Data.

4. Feedback. Company is hereby granted an irrevocable, perpetual, assignable, royalty-free unlimited license to make use of Feedback obtained from Customer and the results of any such use shall be exclusively owned by Company.

5. Data Export and Deletion After Termination. After the termination or expiration of the Term, Customer shall have the right to export its data (including, without limitation, Customer Data) or request the delivery of such data within fourteen (14) days. After such fourteen (14) day period, Company will either delete or return to Customer all Customer Data and Confidential Information in cooperation with Customer.

6. Customer Representations. Customer represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation; (b) it has the full right, power, and authority to enter into and perform its obligations under this Agreement; (c) the execution, delivery, and performance of this Agreement do not and will not conflict with or result in a breach of any agreement to which Customer is a party; and (d) Customer’s use of the Service and Customer Data do not and will not violate any applicable Law or infringe any third party’s rights.

7. Payment and subscription terms

1. Applicability. These payment terms apply to all Customers. Additional terms may apply depending on the Customer type or any separately executed Order Form. If there is any conflict between these terms and a signed Order Form, the Order Form shall prevail. These terms continue to apply to all matters not expressly modified or superseded by the Order Form.

2. Customer Types. Customers subscribe either as:

1. “Creator Customers” - Customers who subscribe through the self-service signup process and do not enter into a signed Order Form.

2. “Enterprise Customers” - Customers who subscribe pursuant to a separately executed Order Form.

1. Enterprise Customers

1. Fees and Payment. Enterprise Customers will pay the fees in accordance with the applicable Order Form. Unless otherwise agreed, all fees are invoiced in advance and due within thirty (30) days of invoice date. Customer is responsible for all bank charges, any wire fees, credit card processing fees, or other transaction fees associated with payment.

2. Taxes. All fees are exclusive of any taxes, tariffs, duties, or governmental charges, including without limitation sales, use, excise, ad valorem, property, withholding, or value-added tax. Customer is responsible for all such amounts, except taxes based on Company’s net income. If any amount must be withheld by law, Customer will gross-up the payment so that the Company receives the full amount stated in the applicable Order Form.

3. Term and Renewal. The subscription term, renewal provisions, and any trial period applicable to Enterprise Customers are governed by the applicable Order Form.

4. Termination. Enterprise Customers may not terminate their subscription for convenience unless expressly permitted in the applicable Order Form. The right of either party to terminate for cause remains unaffected.

5. Refunds. All fees paid by Enterprise Customers are non-refundable, except as expressly provided in the applicable Order Form or this Agreement.

6. Overages. Any overage rights, limitations, or fees are governed exclusively by the applicable Order Form.

2. Creator Customers

1. Plans. Creator Customers may subscribe to monthly or annual plans. Monthly plans are billed on the subscription date each month. Annual plans are billed in advance for twelve (12) months.

2. Upgrades. Customer may request plan upgrades at any time by emailing support@affilimate.com. If approved, the price difference will be charged for the remainder of the current billing period. Subsequent billing will occur at the upgraded rate.

3. Overages. If usage exceeds plan limits (calculated based on the average usage over the preceding sixty (60) days), Company may require an upgrade to a higher plan for the following billing cycle. Customer will have two (2) weeks to decide whether to upgrade or to cancel the subscription effective at the end of the current billing period.

4. Termination. Creator Customers may terminate their subscription at any time without notice. Fees already paid are non-refundable, except as otherwise provided in this Agreement. The Company may terminate a Creator Customer subscription by providing three (3) months’ notice effective at the end of the then-current billing period.

3. All Customers

1. Trial. If Customer's account includes a free trial, access to the Service will be suspended at the end of the trial period, unless Customer upgrades to a paid subscription. A four (4) day grace period will apply following the end of the trial. After the grace period, Company may delete Customer Data in accordance with this Agreement.

2. Currency. Fees shall be paid in the currency specified in the applicable Order Form or checkout process. Customer is responsible for any currency conversion fees or exchange rate differences.

3. Late Payment and Suspension. If any undisputed fees are not paid when due, Company may charge interest on the overdue amount at a rate of 1.5% per month from the due date until payment in full; provided that such rate shall not exceed the maximum rate permitted by applicable Law, in which case the maximum permitted rate shall apply. If payment remains outstanding more than thirty (30) days after the due date, Company may suspend access to the Service until all overdue amounts are paid in full. Automated reminders or warnings issued through Company’s invoicing system and/or account portal constitute sufficient notice.

4. Collection Costs. If Customer is in default of payment, Customer shall reimburse Company for all reasonable and necessary costs incurred in enforcing payment of past-due amounts.

5. Payment Disputes. Customer must notify Company of any good-faith dispute regarding an invoice within fifteen (15) days of receipt. Undisputed amounts remain payable when due. The parties shall work in good faith to resolve any dispute within thirty (30) days.

6. Setoff. Customer shall not withhold, offset, or deduct any amounts owed to Company under this Agreement, except with respect to amounts that are the subject of a good-faith dispute and for which Customer has provided timely notice in accordance with the Payment Disputes provision of Section 7.5

4. Chargebacks. Customer should first contact support@affilimate.com regarding refund requests or unrecognized charges before issuing a chargeback with Customer’s bank. Company reserves the right to dispute any chargebacks that are not fraudulent and where Customer has not first attempted to resolve the matter directly with the Company.

8. Provision of the Software and Support

1. Availability. Company shall provide the Customer with access to the Software in its most recent version as a cloud-based service via the Internet for the duration of the subscription plan. The Software is hosted on infrastructure operated by or on behalf of the Company and may run across multiple servers. Access is provided via a web browser and, where applicable, optional components (e.g. browser extensions or APIs). Customer is responsible for its own adequate Internet connection. Scheduled maintenance windows shall not constitute a breach of Company’s availability obligations, provided Company uses commercially reasonable efforts to notify Customer in advance of planned maintenance that may materially affect access.

2. Basic Support. Company provides basic support at no additional charge. Please direct all support inquiries to support@affilimate.com. Company’s support team will answer all emails as quickly as possible, but does not guarantee a timeframe during which Customer will receive a response. Some plans include "priority support" which means that, when receiving a support request from Customer, Company will prioritize it over other requests. Nonetheless, Company does not guarantee a specific timeframe.

3. Additional Support. Further support services may be available to Customer upon agreement and for separate remuneration.

9. Price changes

Company may increase the fees for the Service, with effect as of the immediately following billing period. Company shall notify the Customer of any fee increase in writing (email shall suffice) at least four (4) weeks before it takes effect. If Customer does not agree, Customer may object and terminate the subscription by notice delivered to Company in writing (email shall suffice) no later than the last day of the then-current billing period.

10. Company Undertakings

4. Company Limited Warranty. Company warrants that, during the applicable subscription term, the Software will substantially conform in all material respects with the description specifications set forth in this Agreement, any applicable Order Form, and applicable documentation. Customer’s sole and exclusive remedy for any breach of this warranty shall be, at Company’s option, (a) replace any damaged or defective part(s) of, or repair, the Software; (b) amend, supplement, or replace any incomplete or inaccurate service description specifications; and/or (c) replace the Software with functionally equivalent software (which software will, on its replacement of the Software, constitute Software hereunder).

5. No Additional Warranties. Except as expressly set forth in Section 10.1, Company makes no warranties regarding the Software or the Service. Without limiting the foregoing, Company does not warrant that the Service or Software will be uninterrupted, error-free, or free of harmful components, or that any defects will be corrected.

6. Disclaimer of Business Expectations and Profitability. Company does not warrant that the Customer’s business expectations associated with the use of the Service will be realized. Company is not responsible for any decisions Customer makes based on the data available in the Platform and does not warrant the accuracy, timeliness, or completeness of data provided through the Service. Customer assumes all risk arising from its reliance on any such data.

7. Updates and Upgrades. Any warranty provided under Section 10.1 applies only to the then-current version of the Software as of the date of the applicable claim. Company makes no separate warranty with respect to any Update, Upgrade, or new version of the Software, except to the extent such Update, Upgrade, or new version introduces a material deficiency not present in the prior version.

8. Plug-In Compatibility. Company does not warrant that the Service will function with all third-party plugins, components, web browsers, or web hosts. Company is not responsible for any compatibility conflicts that may arise with plugins, components, web browsers, or web hosts. While the Company strives to provide technical support as quickly as possible, without prejudice to the above, the Company is not liable for any data loss, website downtime, or any other issues that may occur as a result of installing the tracking script.

9. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 10 (COMPANY UNDERTAKINGS) OR ELSEWHERE IN THIS AGREEMENT, COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY AND ITS AFFILIATES HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICE, UPDATES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ALL SECURITY RISKS OR THREATS WILL BE DETECTED.

10. Limitations. Notwithstanding this Section 10 (Company Undertakings) and subject to Section 11 (Limitation of Liability), the Company shall have no obligation to remedy any defects, provide support, or maintain any version of the Service that Company provides free of charge.

11. Limitation of liability

11. Liability. Nothing in this Agreement shall limit or exclude either party’s liability for (a) death or personal injury caused by its negligence, (b) fraud or fraudulent misrepresentation, (c) willful misconduct, or (d) any other liability that cannot be limited or excluded under applicable Law.

12. Standard of Care. Except as set forth in Section 11.1, Company shall not be liable for any damages arising out of or related to this Agreement unless such damages result from Company’s material breach of this Agreement, gross negligence, or willful misconduct.

13. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR SERVICE PROVIDERS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, USE, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICE, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR LIABILITY ARISING UNDER SECTION 11.1, COMPANY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement (other than payment obligations) to the extent such delay or failure is caused by any event or circumstance beyond such party’s reasonable control, including but not limited to acts of God, war, terrorism, riot, embargo, civil or military authority, fire, flood, earthquake, pandemic, epidemic, power failure, internet or telecommunications failure, strikes, or labor disputes (each, a “Force Majeure Event”). The affected party shall give prompt written notice to the other party of the Force Majeure Event and shall use commercially reasonable efforts to mitigate its effects. If a Force Majeure Event continues for more than sixty (60) consecutive days, either party may terminate this Agreement upon written notice to the other party.

16. Essential Basis. Each party acknowledges that the limitations and exclusions of liability set forth in this Section 11 reflect a fair and reasonable allocation of risk between the parties and form an essential basis of the bargain between the parties, without which Company would not have entered into this Agreement.

12. Indemnification

17. Company Indemnity. Subject to the terms and conditions of this Section 12 and the limitations set forth in Section 11.4, Company shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnified Party”) from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim alleging that the Service, as provided by Company and used by Customer in strict accordance with this Agreement and the applicable documentation, infringes or misappropriates any third-party patent, copyright, or trade secret registered or recognized in the United States. In the event of such a claim, Company shall, at its sole option and expense: (a) procure for Customer the right to continue using the Service; (b) modify or replace the Service to make it non-infringing without materially diminishing its functionality; or (c) if neither (a) nor (b) is commercially practicable, terminate the affected Service and refund to Customer a pro-rata portion of any prepaid fees for the unused portion of the then-current subscription term. The foregoing states Company’s sole liability and Customer’s exclusive remedy with respect to any claim of infringement or misappropriation of third-party Intellectual Property Rights.

18. Exceptions to Indemnity. Company shall have no obligation under Section 12.1 to the extent that a claim arises from: (a) modifications to the Service other than those made by Company in connection with this Agreement or with the Company’s express written authorization and in strict accordance with the Company’s written directions and specification made by or on behalf of Customer; (b) use of the Service in combination with any products, service, hardware, or software not provided or approved by Company, where the alleged infringement would not have occurred but for such combination; (c) Customer’s use of the Service in violation of this Agreement or applicable Law; (d) use of any version of the Software other than the most current version; or (e) Customer’s continued use of an allegedly infringing version of the Service after Company has made a non-infringing alternative available.

19. Customer Indemnity. Customer shall indemnify, defend, and hold harmless Company and its affiliates and each of their respective directors, officers, employees, agents, successors, and assigns (each, a “Company Indemnified Party”) from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim arising from: (a) Customer’s breach of this Agreement, including any breach of Customer’s representations; (b) Customer’s violation of applicable Law; (c) Customer Data or Customer’s use of the Service, including any claim that Customer Data infringes or misappropriates any third-party Intellectual Property Rights or violates any third party’s right of privacy or publicity; (d) any abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by Customer or its Authorized Users in connection with the Service.

20. Indemnification Procedures. As a condition to the Company’s obligations under this Section 12, the Customer Indemnified Party shall: (a) promptly notify the Company in writing of any claim for which indemnification is sought (provided that failure to provide prompt notice shall not relieve the Company of its obligations except to the extent it is materially prejudiced thereby); (b) grant the Company sole control of the defense and settlement of such claim; and (c) provide reasonable cooperation and assistance at the Company’s expense. The Company shall not settle any claim in a manner that imposes any liability, admission of fault, or obligation on the Customer Indemnified Party without the Customer Indemnified Party’s prior written consent (not to be unreasonably withheld, conditioned, or delayed). The Customer Indemnified Party may participate in the defense of such claim at its own expense with counsel of its choosing.

13. Disclosure and compliance

Customer is responsible for determining if and how it needs to disclose its usage of the Service to visitors of Customer's website. The exact requirements for a privacy policy page can vary between jurisdictions. Customer’s privacy policy is a legal document, and making sure that it is accurate and compliant is Customer's responsibility as a website owner. Company cannot give the Customer legal advice. Customer is responsible for having its privacy policy reviewed by a lawyer to ensure full compliance with the applicable Laws in the relevant jurisdiction.

14. Emails and marketing

Customer may receive email notifications stemming from Customer's use of the Service. For instance, Customer may receive an email when a new affiliate link is added to the Customer's website, or when a health check fails. Customer may also receive marketing emails, informing the Customer of product developments or other company news. Customer may adjust email preferences either using the link inside the email itself, or inside the Affilimate web app. Further, Customer may also receive emails notifying the Customer of changes to these Terms of Service, trial expiration notices, and other emails related to Customer's usage of the Service.

15. Data Privacy and Security

The Company shall maintain commercially reasonable administrative, technical, and organizational safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Company shall comply with all applicable federal and state data privacy and data security laws in connection with its processing of Customer Data, including, to the extent applicable, the California Consumer Privacy Act, as amended by the California Privacy Rights Act (collectively, “CCPA”), the New York SHIELD Act, and any other applicable state privacy or data breach notification laws.

To the extent Company processes Personal Information (as defined under the CCPA, or as analogously defined under other applicable state privacy laws) on behalf of Customer, Company shall process such data solely as a “service provider” (as defined under the CCPA) or equivalent designation under applicable Law, and only for the business purposes specified in this Agreement or as otherwise instructed by Customer in writing. Company shall not sell or share (as those terms are defined under the CCPA) any Personal Information received from or on behalf of Customer. In the event of a data breach affecting Customer Data, Company shall notify Customer without unreasonable delay (and in any event within seventy-two (72) hours of confirming that the breach has occurred and that Customer Data was affected) and shall cooperate with Customer in complying with any applicable breach notification obligations. The parties may enter into a Data Processing Addendum to further specify their respective obligations with respect to data privacy.

16. Confidentiality

The receiving party will not at any time (i) disclose, sell, share, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party, or (ii) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with or as set forth in this Agreement. All Confidential Information will remain the disclosing party’s property and all documents, electronic media, and other tangible items or portions thereof, which contain Confidential Information of the disclosing party will be delivered to the disclosing party promptly upon the disclosing party’s written request. Nothing contained in this Agreement will prevent Company from complying with applicable data privacy Law. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by applicable Law, however, the receiving party shall use commercially reasonable efforts to give the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and shall take reasonable steps to protect the Confidential Information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.

17. Acceptance

By creating an account for the Service, Customer is indicating that Customer has read and agrees with the Terms of Service detailed on this page.

18. Changes to Terms of Service

Company reserves the right to change or amend these Terms of Service. Changes that are purely formal in nature, involve updates to references, or constitute minor wording adjustments do not require prior notification or Customer approval. Any other modifications or additions will be communicated to the Customer by e-mail or in writing with a reasonable period of notice before the planned entry into force. If the Customer does not object to the amended Terms of Service in writing (e.g. letter or e-mail) within six (6) weeks after receipt of the e-mail, the amended Terms of Service shall be deemed accepted. In the event of an objection, the original Terms of Service shall continue to apply unchanged; in this case, however, Company shall be entitled to terminate this Agreement with a notice period of thirty (30) days from receipt of the objection.

19. Governing Law and Jurisdiction

1. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).

2. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the Borough of Manhattan, City of New York. Each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

20. Final Provisions

1. Set-Off. Customer may not set-off any claims against the Company unless those claims have been specifically acknowledged by the Company or legally established by a competent court of law.

2. Independent Contractor. Company will provide all Service as an independent contractor. Neither this Agreement nor Company’s provision of Service will create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between Customer and Company; and neither Party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other Party.

3. Export Restrictions. Customer acknowledges that the Service, including the Software and documentation, may be subject to the export control and sanctions laws and regulations of the United States, including the U.S. Export Administration Regulations (EAR) and programs administered by the Office of Foreign Assets Control (OFAC) (collectively, “Trade Compliance Laws”). Customer shall not, directly or indirectly, export, re-export, or release the Service to, or make the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by applicable Trade Compliance Laws. Customer represents and warrants that it is not located in, under the control of, or a national or resident of any country subject to a comprehensive U.S. embargo, and is not on any U.S. government restricted party list.

4. Assignment. Customer may not assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, without Company’s prior written consent. Any attempted assignment in violation of this Section shall be null and void. Company may freely assign this Agreement or any of its rights or obligations hereunder without Customer’s consent, including in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

5. Entire Agreement. This Agreement, together with any Order Form and any DPA, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

6. Waiver. No failure or delay by Company in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies of Company under this Agreement are cumulative and not exclusive of any rights or remedies provided by Law.

7. Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed given when (a) delivered personally, (b) sent by confirmed email to the address associated with Customer’s account (for notices to Customer) or to support@affilimate.com (for notices to Company), or (c) one (1) business day after deposit with a nationally recognized overnight courier. Either party may update its notice address by providing written notice to the other party.

8. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law, and the remaining provisions shall continue in full force and effect.

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