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Terms of Use: Affinnova.com and Concept Studio

AFFINNOVA.COM TERMS OF USE

Last Updated: May, 2012

Affinnova, Inc. ("Affinnova”) owns and operates www.affinnova.com (the “Site”).

1. ACKNOWLEDGEMENT AND ACCEPTANCE

These Terms of Use (these “Terms”) set forth the terms and conditions that apply to use of the Site. Unless explicitly stated otherwise by Affinnova, all products, services and software made available through the Site including, without limitation, any new feature added from time to time (collectively, “Services”) are automatically subject to these Terms. You represent to Affinnova that you have the authority to use the Site and Services according to these Terms. You affirm that you are fully able and competent to enter into these Terms and to abide by and comply with these Terms and, if you are an individual using the Services on behalf of a corporation or other business entity, you affirm that you have authority to bind the corporation or entity to these Terms.

Please CAREFULLY read these terms and Affinnova’s PRIVACY POLICY. By registering to use or using the Site and Services, you agree to be bound by these Terms. If you do not accept all of these Terms, then please do not use or register to use the Site and Services.

The Concept Studio™ Service (which enables its users to develop, express, optimize and measure their new marketing ideas,) is offered by Affinnova at https://conceptstudio.affinnova.com/platformservices/login.  Your use of the Concept Studio™ Service is licensed separately and subject to the <Concept Studio Terms of Use>. [NOTE: confirm/add link/URL]

AFFINNOVA RECOMMENDS THAT YOU PRINT OUT A COPY OF THESE TERMS FOR YOUR FUTURE REFERENCE.

2. ADDITIONAL TERMS

From time to time, Affinnova may supplement these Terms with additional terms that pertain to specific material on the Site, such as new or expanded services and products ("Additional Terms"). You understand and agree that such Additional Terms are hereby incorporated by reference into these Terms. The Additional Terms will take precedence if the Terms and Additional Terms conflict.

3. MODIFICATIONS TO TERMS

Affinnova may modify these Terms from time to time. When Affinnova posts modifications to these Terms, Affinnova will revise the “Last Updated” date at the top of this page. If Affinnova makes material modifications to these Terms, Affinnova will post a notice on the Site together with a description of the modifications made. The modified Terms will be effective immediately upon posting. Your continued use of the Site after the posting of the modified Terms constitutes your agreement to abide and be bound by them, as modified. If you object to any of the modifications, your sole recourse is to terminate your use of the Site. Please check the Site from time to time to inform yourself of modifications to these Terms or any of Affinnova’s other policies related to the Site.

4. CHANGES TO THE SITE AND SERVICES

Affinnova may modify or discontinue the Site, the Services or any portion thereof without notice to you and without liability to you or any third party, except as otherwise provided in these Terms.

5. USE OF THE SERVICES

To use the Site and Services, you will need to: (a) provide all equipment, including a computer and modem, necessary to establish a connection to the World Wide Web; (b) provide you own access to the World Wide Web; and (c) pay any telephone, data, hosting or other service fees associated with such access.

By using the Site and Services, you specifically agree that:

  1. You will use the Site and Services only for purposes permitted by these Terms and applicable local, state, national or international laws, rules or regulations.
  2. You will not upload to or download from the Site any material or information unless you have all rights and authority necessary to do so.
  3. You will not upload or download any infringing, potentially libelous or slanderous, defamatory, obscene or illegal material or information, or material or information that is as otherwise inappropriate (as Affinnova determines in its sole discretion).
  4. You will not engage in activities, such as use of files that contain viruses, programs or routines that may disrupt or damage the Services, the Site or another person’s computer or device.
  5. You will not attempt to “crack,” “hack,” manipulate, launch any automated system or gain unauthorized access to Affinnova’s servers or software or material or areas of the Site not intended for your access.
  6. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services or any of the Site’s content for any purpose.

Affinnova reserves the right (but is not obligated) to record, monitor, edit or disclose activities occurring through or involving Services and/or investigate any allegation that any activity occurring through or involving Services does not conform to these Terms. Affinnova does not endorse or assume any responsibility for any user’s activity or any crime facilitated by use of the Site.

6. REGISTRATION

Certain Services may be intended only for users who register to use the Site (“Registered Users”) and Affinnova reserves the right to limit certain Services to Registered Users (collectively, “Registered User Services”).

As part of the registration process or as part of your continued use of any Registered User Service, you may be required to provide information about yourself (such as your name, e-mail address, telephone number, employer’s industry, name and address and your job title). You agree that the registration information you provide is complete, correct and accurate.

You acknowledge and agree that Affinnova may block your use of any Service or the Site and/or terminate your right to use the Services if any of the registration information that you provide is incomplete, incorrect or inaccurate or if Affinnova has reasonable grounds to believe that any of your registration information is incomplete, incorrect or inaccurate. You also must maintain and update your registration information to keep it complete, correct and accurate.

You are responsible for maintaining the confidentiality of your password(s) and other registration information. You are entirely responsible for any and all activities that occur under your user identification and password whether or not authorized by you. You agree to immediately notify Affinnova at conceptstudio@affinnova.com of any unauthorized use of your user identification or password.

7. PRIVACY POLICY

Any personal information provided by you while you are using the Services or gathered by Affinnova during any visit to the Site is subject to the terms of Affinnova’s Privacy Policy, which are incorporated herein by reference. Click here to read Affinnova’s Privacy Policy.

8. LICENSE GRANT AND CONTENT

Subject to these Terms, Affinnova hereby grants you a nonexclusive, nontransferable right to: (a) use the Site and Services (including Registered User Services); (b) access the software, including files, images incorporated in or generated by the software and data accompanying the software, (the "Software") and other information, materials and content to which you may have access as part of or through your use of the Services, including Registered User Services (collectively, “Content”); and (c) download, print and use one copy of the Content for your personal or internal use only. Unauthorized access to the Site or Services, or to the telecommunications or computer facilities used to deliver the Site and Services, is a breach of the Terms and is a violation of law.

If you download Software from the Site, the Software is licensed to you by Affinnova pursuant to the above license grant and pursuant to other terms and conditions that accompany the Software, if any.  Affinnova does not transfer title to the Software to you.  You may own the medium on which the Software is recorded but Affinnova retains full and complete title to the Software and all intellectual property rights therein.

You are note permitted to copy, reproduce, republish, upload, post, transmit or distribute in any way Content or trademarks, service marks and logos (collectively, "Marks") contained in the Content without the prior written consent of Affinnova or the applicable owner of such Content and Marks.  If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.  Modification of the Content or use of the Content for any other purpose is a violation of Affinnova's copyright and other proprietary rights. For purposes of these Terms, the use of any such Content on any other website or networked computer environment is prohibited.

Except as specifically permitted in these Terms, you may not, directly or indirectly,: (i) transfer, sell, sublicense, rent or lease the Content or Services; (ii) circumvent any encrypted data or gain access to more materials or data than was licensed for use on the Site in any manner which violates this these Terms or any applicable law; (iii) reverse engineer, decompile, disassemble, translate or convert any Software or computer programs used to access the Site and Services (except as local law may permit without violation of local copyright law); and/or (iv) copy (except as provided herein), reproduce, disclose, distribute, display, perform, publish, adapt, create derivative works of, translate or otherwise modify the Content or Services or (v) permit any third party to engage in any of the acts proscribed in clauses (i) through (iv). Upon request, you must provide Affinnova with evidence of compliance with this Section. Any special rules for the use of any of the Services or Content accessible on the Site may be included elsewhere within the Site and are incorporated into these Terms by reference.

The Content of the Site is protected by copyright and other United States and foreign intellectual property and related laws, rules and regulations. The Content includes material owned or controlled by Affinnova and material owned or controlled by third parties and licensed to Affinnova. Except for any content that you create on or through the Site , title to all Content remains with Affinnova or the third party owners of such Content. Any use of Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws. All rights not expressly granted herein are reserved by Affinnova.

9. SUBMISSIONS

Affinnova welcomes your comments regarding the Services and Site but asks that you not submit your creative ideas, suggestions or materials. If you send creative ideas, suggestions or materials to Affinnova that Affinnova has not specifically requested (collectively, "Submissions"), you grant to Affinnova and its designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), assignable, fully paid-up, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Submissions in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions. All Submissions will be deemed non-confidential and Affinnova is not liable for any use or disclosure of Submissions.

10. THIRD PARTY LINKS

These Terms apply only to the Site. The Site may provide links to other websites or resources. Because Affinnova has no control over such third-party websites and resources, you acknowledge and agree that Affinnova is not responsible for the availability of such websites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources.

YOU AGREE THAT YOUR USE OF THIRD PARTY WEBSITE AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEBSITE AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO SUCH WEBSITE AND RESOURCES.

Affinnova has the right, at any time and in its sole discretion, to block links to the Site through technological or other means, without prior notice.

11. TERMINATION

If Affinnova determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Site, Affinnova reserves the right to: (a) delete any or all content provided by you or your agent(s) to the Site or through the Services; (b) discontinue your registration with any or all of the Site(s) or Services; (c) discontinue your subscription to any service product, content, tool or digital product used through the Site or Services; (d) notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (e) any other action which Affinnova deems to be appropriate.

If your ability to access the Site and/or Services is discontinued by Affinnova due to your violation of any portion of these Terms or for conduct otherwise inappropriate for the Site, then you agree that you shall not attempt to re-register with or access the Site and/or Services by using a different user identification or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees (if any) related to those Services to which your access has been terminated. If you violate the immediately preceding sentence, Affinnova reserves the right, in its sole discretion, to immediately take any or all of the actions set forth in clauses (a) - (e) of this Section without any notice or warning to you.

A Registered User may delete his/her registration information at any time by sending an email (including user identification and password) to conceptstudio@affinnova.com. Affinnova may, in its sole discretion, terminate a Registered User if he/she has been inactive for a period of twelve (12) months. A Registered User will be defined as inactive if she/he has not logged into any Site or she/he has not called Affinnova’s customer service or contacted Affinnova in any other manner.

12. SYSTEM OUTAGES

Affinnova may schedule system downtime for maintenance and other purposes. Unplanned system outages also may occur. Affinnova has no liability whatsoever for: (a) the resulting unavailability of the Services or Site; (b) any loss of data or transactions caused by planned or unplanned system outages; (c) the resultant delay, misdelivery or nondelivery of information caused by such system outages; or (d) any third party acts or any other outages of web host providers, Internet service providers or the Internet facilities and networks.

13. DISCLAIMER

YOU EXPRESSLY AGREE THAT USE OF THE SITE, INCLUDING BUT NOT LIMITED TO ALL SERVICES AND CONTENT ACCESSED THROUGH THE SITE, IS AT YOUR SOLE RISK. THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, AFFINNOVA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. AFFINNOVA DOES NOT WARRANT THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE OR SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE IS FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. AFFINNOVA DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR CONTENT ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. YOU (AND NOT AFFINNOVA) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF ANY DEVICE THAT YOU USE TO ACCESS THE SITE AND SERVICE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

14. LIMITATION OF LIABILITY

AFFINNOVA IS A PROVIDER OF AN INTERACTIVE COMPUTER SERVICE WITHIN THE MEANING OF THE COMMUNICATIONS DECENCY ACT (TITLE 47, UNITED STATES CODE, SECTION 230) AND RESERVES ALL RIGHTS GRANTED UNDER SUCH LAW.

AFFINNOVA IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR SERVICES OR RESULTING FROM ANY GOODS, SERVICES, DIGITAL PRODUCTS, AND/OR CONTENT OBTAINED THROUGH THE SITE OR SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES EVEN IF AFFINNOVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

15. INDEMNIFICATION

You agree to defend, indemnify and hold each of Affinnova and its parent corporations, subsidiaries and affiliated entities and their respective officers, directors, employees and agents, harmless from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) due to or arising out of: (a) your use of and access to the Site and the Services; (b) your violation of any provision of these Terms; or (c) your violation of any third party right, including without limitation any copyright, property, or privacy right.

16. TRADEMARKS

Affinnova and Affinnova’s logo and other product and service names of Affinnova are trademarks of Affinnova, Inc. (the “Affinnova Marks”). You agree not to display, reproduce or otherwise use in any manner the Affinnova Marks without Affinnova’s prior written permission.

17. CLAIMS OF COPYRIGHT INFRINGEMENT

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you are a copyright owner or an agent thereof and believe in good faith that materials hosted by Affinnova infringe your copyright, you (or your agent) may send Affinnova a notice requesting that the material be removed or access to it blocked by providing Affinnova’s Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online Website are covered by a single notification, a representative list of such works at that Website;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the Affinnova to locate the material;
  • Information reasonably sufficient to permit the Affinnova to contact you, such as a name, address, telephone number, and, if available, an e-mail address;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send Affinnova a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details. Notices and counter-notices with respect to this website should be addressed to Affinnova's Copyright Agent at:

Affinnova, Inc.
Attn: Copyright Agent
265 Winter Street
Waltham, MA 02451
Tel: 781.464.4700
Fax: 781.464.4702
Email: copyrightagent@affinnova.com

Affinnova suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware penalties may be assessed for false infringement or claims made pursuant to the DMCA.

For clarity, only DMCA notices and counter-notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Affinnova at info@affinnova.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

18. USER DISPUTES

You are solely responsible for any interaction with other users of the Site. Affinnova reserves the right but shall have no obligation to monitor disputes between you and any other user of the Site.

19. USERS FROM OUTSIDE THE UNITED STATES

By visiting the Site or using the Services, you acknowledge that you accept the practices and policies outlined in these Terms and consent to having your data transferred to and processed in the United States. If you do not agree to these Terms, please do not use the Site and Services.

The Site is controlled and operated by Affinnova from the United States. Affinnova does not represent or warrant that the Site, Services or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access the Site and Services do so on their own initiative and at their own risk and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Site and/or Services and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. Affinnova may limit the availability of the Site and/or Services, in whole or in part, to any person, geographic area or jurisdiction that Affinnova chooses, at any time and in Affinnova’s sole discretion.

20. MISCELLANEOUS

Governing Law: These Terms are governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts and the United States of America, without giving effect to any choice of law or conflict of law provisions that would cause the application of any other state's or nation’s laws.

No Rights of Third Parties: These Terms do not create rights enforceable by third parties.

Other: These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. These Terms will bind and inure to the benefit of each party's successors and permitted assigns. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms without Affinnova's prior express written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any part of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, it will be replaced with language reflecting the original purpose in a valid and enforceable manner, and the enforceable Sections of these Terms will remain binding upon the parties. Any heading, caption or Section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any Section or provision hereof. These Terms, together with all policies referred to herein, constitute the entire agreement between you and Affinnova with respect to your use of the Site and supersedes all prior or contemporaneous communications and proposals between you and Affinnova regarding such subject matter. Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

21. CONTACTING AFFINNOVA

If you have any questions about Affinnova generally, these Terms or the Site, please feel free to contact Affinnova at:

Affinnova, Inc.
265 Winter Street
Waltham, MA 02451
Tel: 781.464.4700
Fax: 781.464.4702
Email: info@affinnova.com

22. NOTICE TO CALIFORNIA RESIDENTS

Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:

The provider of the website is:
Affinnova, Inc.
265 Winter Street
Waltham, MA 02451

To file a complaint regarding the website or to receive further information regarding use of the website, send a letter to the above address, contact Affinnova via e-mail or telephone Affinnova at 1.781.464.4700. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.

 

CONCEPT STUDIO TERMS OF USE

Last Updated: May 4 2012

This User Agreement (“Agreement”) sets forth the terms and conditions that apply to use of the Concept Studio web-based content development application (including any update, revision, enhancement, new feature and/or the addition thereto) (the “Service”) owned and operated by Affinnova, Inc. (“Affinnova”). You (”You” or “Client”) represent to Affinnova that You have the authority to use the Service according to this Agreement. You affirm that You are fully able and competent to enter into this Agreement and to abide by and comply with this Agreement. If You are an individual using the Service on behalf of a corporation or other business entity, You affirm that You have authority to bind that corporation or entity to this Agreement and “You” shall refer to such corporation or other business entity.

Please CAREFULLY read thIs AGREEMENT. BY REGISTERING TO USE OR usING THE SERvice, you agree to be bound by the TERMS AND CONDITIONS OF THIS AGREEMENT. 

This Agreement is effective between You and Affinnova as of the date that You accept this Agreement by clicking a box indicating Your acceptance.

 

1. Provision of Affinnova Concept Studio Service

1.1  Provision of Service.  Affinnova grants Client and its Users (as defined in Section 2.2 below) a limited, non-exclusive, revocable, non-transferable license to use the Service during the Term (as defined in Section 3.1 below), in accordance with this Agreement and any applicable agreement, statement of work, or order form between Client and Affinnova related to the Service (each, an “Order Form”), as well as any other terms and policies set forth in the Service.  The Service is licensed, not sold, to You. Affinnova reserves the right (but is not obligated) to improve, enhance and modify the Service on a periodic basis.  Affinnova will post on the Service in advance notice of changes to the Service if such changes will significantly adversely affect the manner in which Client uses the Service or the manner in which the Service operates or performs.

1.2  Availability of Service.  Affinnova will use commercially reasonable efforts to make the Service available on a 7 day per week, 24 hour per day basis, excluding scheduled maintenance time, unavailability caused by any act or omission by Client, any software, hardware or service not provided by Affinnova, unscheduled downtime and/or maintenance for emergencies or any of the events described in Section 10.1 or for any other factor outside of Affinnova’s reasonable control.  Affinnova will be entitled to perform scheduled maintenance on the Service and will notify Client, via the Service, at least 24 hours in advance of the date, time and expected duration thereof.  Affinnova will use commercially reasonable efforts to schedule maintenance between 12 a.m. on Saturday and 12 a.m. on Sunday Eastern Time. 

1.3  Security.  Affinnova will maintain commercially reasonable administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of the content input and/or uploaded by Client and/or Users to the Service and/or created by Client and/or Users through the Service (“Client Content”). 

1.4  Third Party Links.  The Service may include links to third party websites or resources (“Resources”).  Because Affinnova has no control over such Resources, Affinnova is not responsible for the availability thereof and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such Resources.  CLIENT’S USE OF RESOURCES, INCLUDING WITHOUT LIMITATION CLIENT’S USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH RESOURCES, IS AT CLIENT’S OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS AND PRIVACY POLICIES APPLICABLE TO SUCH RESOURCES.  Affinnova has the right, at any time and in its sole discretion, to block links to the Service through technological or other means, without prior notice.  In addition, certain features of the Service that interoperate with third-party services depend on the continuing availability of the  relevant application programming interface and program for use with the Service. If a third party ceases to make available or support its services or the relevant application programming interface, Affinnova may cease providing such Service feature(s) without entitling Client to any refund, credit or other compensation. 

 

2. Use of Concept Studio Service

2.1  Use of Service.  Client will use the Service for its internal business purposes only and only in accordance with the applicable user documentation for the Service and applicable laws, rules or regulations.

2.2  Users; User Accounts.  “User Account" or “User” means an individual who is authorized by You to use the Service and who has been supplied a User identification and password by Affinnova. Users may include Your employees, consultants, contractors and third parties with which You transact business. Each User is classified as either a Manager Account (which means a User who can create and share a Concept File, approve the Concept File for fielding, and review, edit and delete content, if enabled.); a Pro Account (which means a User who has all rights of a Manager Account, except for the right to field a project.); a Guest Account (which means a User who has the right to create, edit and delete content within a shared Concept File, if enabled.) A Concept File is the entity which contains the layout, text and image variation, constraints, and translations of a concept created in Concept Studio.  A User Account may be used by the User to which it is assigned only and cannot be shared or used by more than one individual. User Accounts may be reassigned to new Users who replace former Users or Users who are no longer employed by You. You are responsible for (a) Users’ compliance with this Agreement, and (b) maintaining the confidentiality of all User identifications and passwords. You shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service, User names and passwords and shall promptly notify Affinnova of any such unauthorized access or use. You are entirely responsible for any and all activities of Users that occur under User Account(s), whether or not authorized by You.   Affinnova reserves the right to revoke and/or reassign a User Account in its sole discretion, with or without prior notice to You, if You or any User violates any part of this Agreement.

2.3  Client Content.  Client is solely responsible for all Client Content, including without limitation the accuracy, quality and legality thereof and the means by which the Client Content was acquired.  Client represents and warrants that it has the necessary rights, licenses, consents and permissions to create, upload or otherwise use all Client Content.  If Client elects to share any Client Content with third parties through the Service (including but not limited to Contributors and Guests), Client does so at its own risk and Affinnova will have no responsibility or liability arising out of the disclosure of Client Content to such third parties or the use or misuse of Client Content by such third parties.

2.4  Privacy Policy. Any personal information provided by You or Users using the Service is subject to Affinnova’s Privacy Policy, which is incorporated herein by reference. Click here to read Affinnova’s Privacy Policy

2.5  Restrictions.  Client shall not (a) permit use of or access to the Service by anyone other than Users, (b) reproduce, copy, duplicate, frame, mirror, distribute, adapt, create derivative works of, publish, translate, localize, transmit, port or otherwise modify the Service or any part of the Service, (c) encumber, transfer, sell, resell, sublicense, rent, lease, time-share, make available or use in any service bureau arrangement the Service or any part of the Service (other than Client Content), (d) reverse engineer, decompile, disassemble, translate or convert any software or computer programs used to access the Service (including without limitation for purposes of interoperability, except to the extent local law requires the same to be permitted for purposes of interoperability, and then in such case only to such extent and only without violation of local copyright law); (e) use the Service to store or transmit infringing, libelous, defamatory, obscene or otherwise unlawful or tortious material or to store or transmit material in violation of third-party privacy and other proprietary rights, (f) use the Service to upload, store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (g) interfere with or disrupt the integrity or performance of the Service or third party data contained therein, (h) attempt to gain unauthorized access to the Service or any related software, systems or networks, (i) attempt to gain unauthorized access to any other Affinnova software, systems or networks; or (j) permit any third party to engage in any of the acts proscribed in clauses (a) through (i).

2.6  User Code of Conduct.  In addition to the restrictions on use of the Service described in Section 2.5, You will not, and will not permit Users to:

(a)  create a false identity or impersonate any person;

(b)  use offensive language (including vulgar, inciteful, or racist language) or engage in threatening, abusive, harassing, rude or otherwise objectionable behavior;

(c)  suggest, illicit or encourage any illegal activity;(d)           use the Service to sell, market, distribute or advertise, or facilitate the sale, marketing, distribution or advertising of, any goods or services that would cause Affinnova or You to violate any laws or regulations;

(e)  transmit through the Service any material, non-public information about companies or any trade secret of any third party without the express authorization to do so;

(f)   damage, disable, overburden, impair or institute an attack upon any server used in connection with the Service; or

(g)  restrict, inhibit or otherwise interfere with any other User’s use of the Service.

2.7  Suspension of Service; Monitoring.  If Client breaches any provision of this Agreement, Affinnova shall have the right, in addition to and not in lieu of any other remedies available to it, to suspend the Service until such breach is cured by Client.  Affinnova reserves the right, but is not obligated, to record, monitor, edit or disclose activities occurring through or involving Service and/or investigate any allegation that any activity occurring through or involving the Service does not conform to this Agreement.  Affinnova undertakes no responsibility to review Client Content.  Affinnova may remove any Client Content if properly notified that it infringes on another's intellectual property rights.  Affinnova is a provider of an interactive computer service within the meaning of the Communications Decency Act (Title 47, United States Code, Section 230) and reserves all rights granted under such law. Client is solely responsible for any interaction with other users of the Service. Affinnova reserves the right but will have no obligation to monitor disputes between Client or its Users and any other user of the Service.

2.8  Service Location.  The Service is controlled and operated by Affinnova from the United States.  Client hereby consents to having Client Content transferred to and processed and stored in the United States. Affinnova may limit the availability of the Service, in whole or in part, to any person, geographic area or jurisdiction that Affinnova chooses, at any time and in Affinnova's sole discretion.

2.9  Other Limitations.  The Service may be subject to other limitations, such as limits on disk storage space or on the number of calls Client is permitted to make against Affinnova’s application programming interface. Affinnova will post on the Service notice of any such limitations that it believes may significantly adversely affect the manner in which Client uses or intends to use the Service.

2.10  Support.  The customer support desk may be contacted at support@affinnovasupport.zendesk.com and You shall receive a response to Your email within 1 business day.  You will also have online access to the Concept Studio training and tutorials library. 

 

3. Term and Termination

3.1  Term.   This Agreement and the Subscription(s) ordered by Client will remain in effect for a period of 1 year beginning on the date signed by You in the applicable agreement, Order Form or statement of work and extend for subsequent 1 year terms (each a “Term”) unless cancelled in accordance with Section 3.2.

3.2  Termination.  Affinnova will provide You with notice on or before 90 days before the end of the Term.  You may terminate the Agreement and Subscriptions (a) by providing written notice 30 days or more before the end of the relevant Term.  You may also terminate the Agreement and subscriptions if Affinnova breaches any material obligation hereunder and such breach is not cured within thirty (30) days following receipt by Client of written notice of breach specifying the nature of the breach.  Affinnova may terminate this Agreement (i) by providing written notice of termination to Client at least 60 days before the end of any relevant Term; or (ii) upon written notice to Client, if Client (a) fails to comply with any term or condition specified in this Agreement or an Order Form, or in any other agreement between Client and Affinnova, (b) engages in any activities or conduct that Affinnova, in its reasonable discretion, determines to be inappropriate, abusive or otherwise unacceptable; or (c) becomes the subject of any proceedings under state or federal law for the relief of debtors or otherwise becomes insolvent or bankrupt or makes an assignment for the benefit of creditors.  If Client is using the Service on a trial or evaluation basis, Affinnova may also terminate this Agreement at any time.

3.3  Effect of Termination.  Upon termination of this Agreement, (a) Affinnova will cease providing the Service to Client, and (b) Client will pay to Affinnova any amounts due and payable hereunder or any applicable Order Form. 

 

4.  Price and Payment

4.1  Price.  Fees payable by You for the use of the Service, if any, are set forth in the applicable Order Form.  Fees are charged based on an annual subscription rate and the number of subscriptions for the Service (“Subscriptions”) ordered by You. Fees for additional Subscriptions ordered after the Start Date of the applicable Term will be pro-rated based on the months remaining in the applicable Term and, if added in the middle of a calendar month, will include a charge for the full calendar month in which they were ordered. Thereafter, all Subscriptions will be co-terminous for any subsequent Term.  Fees for any Term shall be the same as the fees during the prior year Term unless Affinnova has provided You with notice of a fee increase in the ninety (90) day notice of expiration it provides in accordance with Section 3.1. Fee increases will be effective upon the beginning of the subsequent Term.

4.2  Invoicing and Payment.  Client shall pay all amounts specified in this Agreement and the Order Form(s) and payment is due upon Client’s receipt of Affinnova’s invoice. 

4.3  Taxes. Unless otherwise stated, the price (if any) of the Service does 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 ("Taxes"). Client is responsible for paying any applicable Taxes associated with the use of the Service, such as value added, sales and withholding tax. If Affinnova has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Affinnova with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

5. Confidential Information

5.1  Definition.  “Confidential Information” means all proprietary and confidential information and materials belonging or relating to a party and its affiliates and their respective business affairs disclosed by or on behalf of a party pursuant to this Agreement or in the course of this Agreement.  Confidential Information of Client includes the Client Content, and Confidential Information of Affinnova includes the Service and all related intellectual property rights.

5.2  Protection.  Each party will (a) hold all Confidential Information of the other party in confidence, (b) not use the other party’s Confidential Information party except in accordance with this Agreement, and (c) not disclose the other party’s Confidential Information to any other person or entity, other than to employees, agents or contractors (including web hosting providers) of the receiving party who (i) need to know such information in order to perform or utilize or provide the Service, (ii) have been apprised by the receiving party of the confidential nature of such information, and (iii) are bound by obligations of confidentiality substantially equivalent to those under this Agreement.  Each party is responsible for any breach of this Article 5 by its contractors, agents or employees.  Notwithstanding anything in this Agreement to the contrary, Affinnova may disclose Confidential Information to market research panel participants as approved by Client in connection with Affinnova’s performance of other services for Client and to Affinnova’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein.

5.3  Exclusions.  Confidential Information shall not include information that (a) is or becomes generally available to the public, (b) is known to the receiving party at the time of disclosure, as evidenced by its written records, (c) is furnished to the receiving party on a non-confidential basis by the disclosing party or by any third party having a bona fide right to do so, or (d) is independently developed by the receiving party without use of or access to the Confidential Information of the disclosing party, as evidenced by its written records.  Either party may disclose Confidential Information of the other party to the extent required by law or court order, provided that such party provides reasonable advance written notice to the other party so that the other party may contest the disclosure or seek a protective order.

5.4  Return.  Upon request by the disclosing party, the receiving party shall promptly return or destroy all Confidential Information of the disclosing party in its possession or under its control, subject to Section 3.3.

 

6. Intellectual Property

6.1.  Client Content.  Client retains all right, title and interest in and to the Client Content, including all related intellectual property rights.  No rights are granted to Affinnova with respect to the Client Content other than as expressly set forth herein.

6.2  Affinnova’s Rights in the Service.  Affinnova owns all right, title and interest in and to the Service, including all copyright, trademark and other related intellectual property rights. As between Affinnova and Client, Affinnova’s methodologies, know how, general industry knowledge, algorithms, software, solutions and technologies, whether preexisting or developed by Affinnova in connection with the Service, this Agreement or an Order Form, together with all related intellectual property rights  will be and remain Affinnova’s exclusive intellectual property. Affinnova does not grant to Client any license or other right in or to the Service or any Affinnova intellectual property except as expressly set forth in this Agreement and all rights not expressly granted are reserved by Affinnova.

6.3  Service Suggestions.  If Client or any User provides Affinnova with any suggestions, enhancement requests, recommendations or other feedback relating to the operation of the Service (collectively, "Suggestions"), then Client grants Affinnova and its designees a worldwide, non-exclusive, sub-licensable (through multiple tiers), assignable, fully paid-up, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import such Suggestions in any media now known or hereafter developed, including the Service, for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Suggestions.  All Suggestions will be deemed non-confidential and Affinnova is not liable for any use or disclosure of Suggestions. 

6.4  License to the Government.  If the Service is acquired by or on behalf of a unit or agency of the United States Government (the “Government”), the Government agrees that such Service is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the Government's rights with respect to the Service are, in the case of civilian agency use, Restricted Rights, as defined in FAR §52.227.19, and if for Department of Defense use, limited by the terms of this Agreement, pursuant to DFARS §227.7202.

 

7. Trademark Ownership and License. Each party retains all right, title and interest in and to its respective trademarks, service marks, trade dress, domain names, logos and trade names (“Marks”) worldwide.  Client hereby grants Affinnova a worldwide, royalty-free, non-exclusive, transferable license to use, reproduce, host, store, transmit, distribute and display Client’s Marks and Client Content during the Term in connection with the Service, Affinnova’s performance and provision of the Service, and any hosting, customer support and other services performed by Affinnova pursuant to this Agreement.  Such license shall terminate upon termination of this Agreement. 

 

8. Indemnity.  Client shall defend Affinnova against any claim, demand, suit or proceeding made or brought against Affinnova by a third party alleging that Client Content or Client’s use of the Service in violation of this Agreement infringes, misappropriates or violates any third party’s intellectual property right, right of publicity or right of privacy or contains any defamatory content, and shall indemnify Affinnova for any losses, liabilities, damages, costs and expenses (including reasonable attorney fees and costs) incurred or paid by Affinnova as a result of such a claim.

 

9. Disclaimer; Limitation of Liabilit

9.1  Warranty Disclaimer. Except as expressly provided herein, the Service is provided by Affinnova “AS IS” and use of the Service or any information obtained through the Service is at Client’s own risk.  Affinnova makes no warranty whatsoever with respect to the Service and, to the maximum extent permitted by applicable law, Affinnova expressly disclaims all warranties, whether express or implied or statutory, including without limitation (a) any implied warranty of merchantability, fitness for a particular purpose, title or non-infringement,  (b) that the Service will operate without delay or on a continuous or uninterrupted basis, (c) that the Service will be secure, free from unauthorized intrusions or error-free, or operate in combination with any particular hardware, software or system, (d) that errors or defects will be corrected, (e) that the server(s) or service that make the Service available are free of viruses or other harmful components.

9.2  Limitation of Liability.  AFFINNOVA IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR SERVICES OR RESULTING FROM ANY GOODS, SERVICES, DIGITAL PRODUCTS, AND/OR CONTENT OBTAINED THROUGH THE SITE OR SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA (INCLUDING ANY CONCEPT STUDIO CONTENT), INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES EVEN IF AFFINNOVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

10. General

10.1  Force Majeure.  Neither party will be liable for damages for any delays or failure to perform caused by matters beyond the reasonable control of the non-performing party, such as wars or other hostilities, terrorist acts, acts of government, governmental restrictions, strikes, fires, floods, earthquakes, work stoppages, embargoes, power outages, outages, failures or delays of web host providers, Internet service providers, Internet facilities or networks, or denial of service attacks.

10.2  Export Compliance.  The Service may be subject to export laws and regulations of the United States and other jurisdictions.  Client will not export or re-export, directly or indirectly (including via remote access), any software or other information or materials provided by Affinnova hereunder to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export, without first obtaining such license or approval.  Each party represents that it is not named on any U.S. government denied-party list.  Client shall not permit Users to access or use Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

10.3  Assignment.  Neither party shall assign this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld; provided that either party may assign this Agreement as a whole in connection with a merger or reorganization of such party or the sale of all or substantially all of its stock, business or assets.

10.4 No Agency; Third Party Beneficiaries.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  There are no third party beneficiaries to this Agreement.

10.5  Notices.  Any notice under this Agreement shall be (a) in writing, (b) delivered by personal delivery, overnight courier of national reputation, confirmed facsimile or certified mail, return receipt requested, and (c) deemed given upon personal delivery, 1 business day after deposit with such courier, or upon delivery of certified mail.  Notices shall be sent to a party at its address or facsimile number set forth in any applicable Order Form or otherwise as that party may specify in writing pursuant to this Section (“Attn: General Counsel” in the case of notices to Affinnova).  This provision shall not apply to notices under Section 1.2.

10.6  Miscellaneous.  This Agreement, the Privacy Policy and any applicable Order Form constitute and contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior oral and written agreements with respect to such subject matter.  In the event of any discrepancies between the terms of this Agreement and any other written agreement between the parties, the terms of this Agreement shall prevail unless such other agreement identifies the terms which are in conflict with this Agreement and states that such identified terms will prevail over the conflicting terms in this Agreement for that other agreement.  Without limitation, the terms of this Agreement shall supersede the terms of any Client purchase order or other Client ordering document.  If any portion of this Agreement is declared invalid by a court of competent jurisdiction, the remainder shall continue in force.  The invalidated portion shall be replaced by a mutually agreed upon provision coming closest to the intention and terms of the stricken language.  Any failure or delay by either party to enforce any right under this Agreement shall not constitute a waiver of such right or any other right, or of any similar breach in the future.  This Agreement may only be modified, or any provision hereof waived, by mutual written agreement.  Sections 4, 5, 6, 7, 8, 9 and 10 shall survive the termination or expiration of this Agreement.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflicts of law rules.