Terms of Service

Last Updated: April, 2021

Under the name “Appfiliate”, A-Ware UG (“Appfiliate,” “we” or “our”) provides linking and statistics products and services to its users (collectively, the “Appfiliate Services”). Please read these Terms of Service (the “Agreement”) carefully, as they govern your access to and use of the Appfiliate Services and constitutes a binding legal agreement between you and Appfiliate. If you accept this Agreement or use the Appfiliate Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you”, “your” and “Customer” will refer and apply to that company or other legal entity. If you have been granted access to and use of the Appfiliate Services by and on behalf of the primary account holder, whether directly or through an administrator, you also agree to abide by this Agreement.

YOU ACKNOWLEDGE AND AGREE THAT, BY CREATING A APPFILIATE ACCOUNT OR ACCESSING OR USING THE APPFILIATE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPFILIATE SERVICES.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER AS DESCRIBED IN THE ARBITRATION SECTION BELOW. YOU AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

1 SCOPE & MODIFICATIONS

1 Modifications. Appfiliate reserves the right, in its sole discretion, to modify or replace this Agreement at any time. If we modify these Terms, we will post the modification on our site or provide you with notice of the modification on the Appfiliate page. By continuing to access or use the Appfiliate Services after the effective date of the modification, you are indicating that you agree to be bound by the modified Agreement. Customer agrees that it is Customer’s responsibility to check this Agreement periodically for changes and that its use of the Appfiliate Services following the posting of any changes to this Agreement constitutes acceptance of those changes. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Appfiliate Services.

2 Scope & Current Offerings. As of the Effective Date, Appfiliate offers certain Appfiliate Services to Customer. Appfiliate may add, remove, suspend, discontinue, modify or update the Appfiliate Services at any time, at its discretion. After the effective date of such update, Appfiliate shall bear no obligation to run, provide or support legacy versions of the Appfiliate Services.

3 Support, Uptime & Training. The training and level of customer support for the tier of Appfiliate Services you purchase is set forth on the Appfiliate Services pricing page.

2 PAID ACCOUNTS

1 Fees. Pricing and services are described on the Appfiliate Service pricing page and may be updated from time to time. If we modify fees, we will post the modification on our site or provide you with notice of the modification on the Appfiliate page. If you use the Appfiliate service you agree to pay Appfiliate all applicable fees. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.

2 Trials. If you continue to use the Appfiliate service after the trial period ends you agree to pay Appfiliate all applicable fees. Pricing and services are described on the Appfiliate Service pricing page and may be updated from time to time. If we modify fees, we will post the modification on our site or provide you with notice of the modification on the Appfiliate page.

3 Payment. Customer will pay Appfiliate invoices monthly. If not otherwise specified, payments will be due immediately. Customer authorizes Appfiliate to charge Customer for all applicable Fees using Customer’s selected payment method. Customer will provide complete and accurate billing and contact information to Appfiliate. Appfiliate may suspend, terminate or alter the Services if Fees are past due, this may include revoking Appfiliate tags or replacing Appfiliate tag data with default data chosen by Appfiliate to avoid broken links. Unpaid Fees are subject to a finance charge of one percent (1.5%) per month (18% per annum), or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.

4 Taxes. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”), and Customer is responsible for all Taxes resulting from this Agreement or Customer’s use of the Appfiliate Services.

5 Downgrades. Appfiliate reserves the right to downgrade, suspend or terminate Customer’s access to any or all Appfiliate Services if Fees are past due.

3 LICENSE AND COMPLIANCE;

1 License to Appfiliate Services. Subject to the terms and conditions of this Agreement and payment of all Fees due hereunder, Appfiliate grants Customer, and any other party agreed in an Order Form, a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to use the Appfiliate Services solely for Appfiliate linking and statistics.

2 Appfiliate statistics. As part of the provision of Appfiliate Services, Appfiliate collects and generates Appfiliate statistics. Customer may access, use, and copy the Appfiliate statistics we make available to Customer in the Appfiliate service.

3 Access Credentials. Appfiliate shall provide Customer with non-transferable access credentials for the Appfiliate Services. Customer shall not (i) misrepresent or mask identities when using the Appfiliate Services or seeking access credentials; (ii) select or use as a username or Appfiliate tag, a name subject to any rights of a person or entity other than Customer without appropriate authorization; (iii) select or use, as Customer’s username or Appfiliate tag, a name that is otherwise offensive, vulgar or obscene; or (iv) exceed any access permitted by Appfiliate. Customer shall safeguard all access credentials provided by Appfiliate and shall ensure the confidentiality and security thereof. To the extent Customer is a corporate entity rather than an individual (1) only employees and contractors of Customer (“Personnel”) may use the Appfiliate Services; (2) Customer shall require its Personnel to comply with all Laws and the use restrictions (including user seat restrictions) set out in the Agreement or otherwise prescribed by Appfiliate and shall not share access credentials to exceed the user limitations of the service tier Customer has purchased; (3) Customer represents and warrants that its Personnel have the capacity and authority to enter into this Agreement; and (4) Customer acknowledges that it shall be fully responsible for any acts or omissions of its Personnel, whether authorized or unauthorized. Appfiliate may update, refresh or change the manner of accessing the Appfiliate Services in its discretion.

4 Compliance Monitoring. Appfiliate may monitor Customer’s use of the Appfiliate Services for compliance with the Agreement. If Appfiliate observes usage of the Appfiliate Services that it believes are not in compliance with the Agreement, Appfiliate will notify the Customer and give the Customer five (5) or more business days to remedy its non-compliance. If Customer does not remedy its non-compliance within five (5) or more business days, Appfiliate reserves the right to suspend or terminate Customer’s use of the Appfiliate Services. Appfiliate reserves the right to suspend Customer’s use of the Appfiliate Services without notice in the event that it believes, in good faith, the security of Customer’s Appfiliate account has been compromised, or the Customer’s Appfiliate account is being used for an unlawful purpose. And may suspend or terminate Customer’s access to the Services without notice for violation of the Agreement.

4 INTELLECTUAL PROPERTY & LICENSE RESTRICTIONS

1 Ownership. Except for any Customer Content or Customer Services, Customer acknowledges and agrees that Appfiliate is the sole and exclusive owner of all right, title and interest in and to the Appfiliate Services and Appfiliate Link statistics and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“Appfiliate Materials”). Nothing in this Agreement or any other document shall be deemed to transfer ownership of the Appfiliate Materials. Except for the limited license rights expressly granted herein, no rights to Appfiliate Materials are granted hereunder and all Appfiliate in such Appfiliate Materials are reserved.

2 Feedback. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Appfiliate Services or Appfiliate Link statistics. However, if Customer does so, all right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, Appfiliate upon its creation.

3 License Restrictions. Customer shall not share access credentials to exceed the user limitations of the service tier Customer has purchased. Customer and its Personnel shall not, and shall not permit any third party to: (i) access the Services or export data from the Services to create a service, software, documentation or data for a linking service other than Appfiliate or create a service that is competitive with, substantially similar or confusingly similar to any aspect of the Appfiliate Services; (ii) use, modify, display, perform, copy, disclose or create derivative works of the Appfiliate Services except as expressly permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the Appfiliate Services, or use any other means to attempt to discover their source code except as expressly permitted herein; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the Appfiliate Services to any third party; (v) transmit harmful, disabling or malicious code or devices, or infringing, defamatory, unlawful, tortious, deceptive, misleading, fraudulent, abusive, indecent or otherwise offensive content, or content that contains someone’s personal information or violates a third party’s intellectual property, privacy or publicity rights (“Prohibited Content”) through the Appfiliate Services; (vi) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the Appfiliate Services or related systems, including via robots, spiders and other electronic methods; and (vii) obscure, remove or alter any proprietary rights or other notices on the Appfiliate Services. Notwithstanding anything to the contrary herein, Appfiliate may, in its sole discretion, immediately revoke the grant of rights set forth in Section 3 if Customer breaches or threatens to breach the restrictions in this Section or creates other security or legal concerns. Customer hereby agrees that Appfiliate will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Customer’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.

4 Third Party Materials. Appfiliate Services may utilize third party software or source code, including without limitation Open Source Software (“Third Party Materials”). Appfiliate has no control over Third Party Materials. Accordingly, Appfiliate is not responsible or liable for any Third Party Materials. While Appfiliate has no obligation to monitor Third Party Materials, Appfiliate may remove or modify such Third Party Materials in its discretion, including without limitation to comply with Law. Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.

5 Trademarks. Customer recognizes the validity of the Appfiliate trademarks and ownership and title thereto. Any goodwill derived from the use of the Appfiliate trademarks by Customer shall inure to the benefit Appfiliate. Customer will not challenge the Appfiliate trademarks or ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement. Customer shall execute such documents as may be reasonably requested by Appfiliate, or required by law, to establish Appfiliate’s sole and exclusive ownership and rights in the Appfiliate trademarks, or to obtain registration thereof. Customer agrees to use the Appfiliate trademarks consistent with Appfiliate’s Brand Assets it makes available at https://www.app-link.io/press so as to protect and maintain the Appfiliate trademarks and Appfiliate’s rights therein. To this end, Appfiliate shall have the right to revoke the license granted in this Section and/or to review and approve the manner of use of the Appfiliate trademarks, and Customer agrees to modify the use of any Appfiliate trademarks which do not meet Appfiliate’s standards. Notwithstanding the foregoing, Customer may not use any Appfiliate trademarks in any manner implying any partnership with, sponsorship by, or endorsement by Appfiliate.

5 CUSTOMER SERVICES, CONTENT AND INFORMATION

1 Customer Services. Appfiliate shall have no liability for any Customer product or service accessed through or making use of the Appfiliate Services or any end user, customer or Personnel’s use thereof (“Customer Service”). Customer shall not use the Appfiliate Services in any manner implying any partnership with, sponsorship by, or endorsement of the Customer Service by Appfiliate. Customer shall not suggest or imply that Appfiliate is the author of or otherwise responsible for the views or content of the Customer Service. The Appfiliate Services shall not be used in connection with any Prohibited Content, or any activities where the use or failure of the Appfiliate Services could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on Appfiliate in any manner.

2 Customer Content. Customer hereby grants to Appfiliate an irrevocable, perpetual, non-exclusive, sublicensable, transferable, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, distribute, create derivative works, alter or modify all URLs and other information provided by Customer to Appfiliate (“Customer Content”) in connection with the provision, operation and promotion of the Appfiliate Services, creation of Appfiliate Link statistics and for other business purposes. If you register a Appfiliate Account with an email address on a domain owned by an organization, such as your employer, we may share your email address and information about your Account with our sales team and the business to explore the business’ interest in creating or managing an enterprise account or for related purposes.

6 REPRESENTATIONS AND WARRANTIES

1 Customer Content Warranties. Customer represents and warrants that Customer Content and the receipt, collection, use and provision thereof, shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) the Customer Content was received, collected, used and used with the Appfiliate service in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions (“Laws”); (iii) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with, its receipt, use and/or provision of the Customer Content and (v) that none of the Customer Content contains any personally identifiable information or persistent identifiers from individuals under the age of 13.

2 Further Customer Warranties. Customer further represents and warrants that (i) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the Appfiliate Service; (ii) it will not do anything that will make the Appfiliate Services subject to any open source or similar license which creates an obligation to grant any rights in the Appfiliate Services; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Appfiliate Services; (iv) in the event of any security breach or unauthorized access to any Appfiliate Services, Customer will immediately investigate such breach and notify Appfiliate in writing, and, unless otherwise notified by Appfiliate, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of Appfiliate, all at Customer’s cost; and (v) Customer, Customer’s use of the Appfiliate Services, the Customer Content and Customer Services will comply with all Laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.

3 APPFILIATE DISCLAIMERS. APPFILIATE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. APPFILIATE DOES NOT WARRANT THAT: (I) THE APPFILIATE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) LINKS, THE APPFILIATE SERVICES AND APPFILIATE STATISTICS WILL BE ACCURATE, ERROR-FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE APPFILIATE SERVICES ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE APPFILIATE SERVICES OR APPFILIATE STATISTICS WILL MEET CUSTOMER’S REQUIREMENTS OR ANY OF ITS OR ITS USERS’, PERSONNEL’S OR CUSTOMERS’ BUSINESS NEEDS; OR (V) THE APPFILIATE SERVICES WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. CUSTOMERS USE OF THE APPFILIATE SERVICES AND APPFILIATE STATISTICS IS SOLELY AT ITS OWN RISK. FURTHER, APPFILIATE MAKES NO REPRESENTATIONS OR WARRANTIES AND SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT CUSTOMER’S USE OF THE APPFILIATE SERVICES AND APPFILIATE STATISTICS COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND CUSTOMER SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. APPFILIATE SHALL BEAR NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES (E.G., OPEN SOURCE SOFTWARE, SOCIAL MEDIA PLATFORMS, THIRD PARTY MATERIALS OR FOR HOST OR APP STORE PROVIDERS). CUSTOMER RECOGNIZES THAT THE FIGURES CONTAINED IN THE APPFILIATE SERVICE MAY BE SUBJECT TO STATISTICAL ERROR. APPFILIATE DOES NOT WARRANT THAT THE APPFILIATE STATISTICS WILL BE COMPLETELY CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. APPFILIATE HEREBY DISCLAIMS ANY LIABILITY FOR ANY USE OR RELIANCE ON THE APPFILIATE STATISTICS BY CUSTOMER AND THIRD PARTIES.

7 LIMITATION OF LIABILITY

1 LIABILITY LIMITATION. IN NO EVENT SHALL APPFILIATE BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE APPFILIATE SERVICES, APPFILIATE STATISTICS OR OTHERWISE HEREUNDER FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE APPFILIATE SERVICES; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CUSTOMER CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CUSTOMER’S USE OF THE APPFILIATE SERVICES; (V) CUSTOMER’S FAILURE TO PROVIDE APPFILIATE WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) CUSTOMER’S FAILURE TO ACCESS THE APPFILIATE SERVICES DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY CUSTOMER; OR (VIII) AMOUNTS FOR ALL CLAIMS HEREUNDER IN THE AGGREGATE IN EXCESS OF $100.00.

9 TERM AND TERMINATION

1 Right to Terminate. Appfiliate may terminate this Agreement immediately in its discretion. Upon expiration or termination of this Agreement, all applicable rights and access granted to Customer shall automatically terminate and Customer and its Personnel shall cease any further use of the Appfiliate Services and return, or, if directed by Appfiliate, destroy, all Confidential Information of Appfiliate. Any Section of this Agreement which by its nature would survive such expiration or termination shall so survive.

10 GOVERNING LAW & DISPUTES

1 Governing Law. This Agreement and the transactions contemplated hereby shall be governed by and construed under the Federal Arbitration Act and the laws of the State of New York without regard to the conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.

2 Limitation for Bringing Claims. To the fullest extent permitted by law, Customer agrees any Customer claim or cause of action arising out of, related to or connected with the use of the Appfiliate Services or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned.

3 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Appfiliate agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms of Service, and that you and Appfiliate are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Service.

1 Exceptions and Opt-out. As limited exceptions to this Dispute Resolution section (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. This Arbitration Agreement does not apply to individuals located in the European Economic Area.

2 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”). If you are an individual, the arbitration will be conducted under the AAA’s Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms of Service. If you enter these Terms of Service on behalf of an organization, the arbitration will be conducted under the AAA’s Commercial Arbitration Rules. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.

3 If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.

4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA Rules. If you are an individual, we’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.

5 Class Action Waiver. YOU AND APPFILIATE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.

6 If Appfiliate changes any of the terms of this “Dispute Resolution” Section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email to support@appfiliate.net) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Appfiliate’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Appfiliate in accordance with the terms of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

7 Severability. With the exception of any of the provisions in Section 20(e) of these Terms (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms of Service is invalid or unenforceable, the other parts of these Terms of Service will still apply.

11 MISCELLANEOUS

1 Relationship of the Parties. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

2 Entire Agreement and Severability. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the parties with respect thereto, including any non-disclosure agreements signed by the parties. Except as may be modified in writing by the parties, including by a Appfiliate Enterprise Supplemental Agreement, no additional or conflicting terms set out on Customer order, invoice, statement or other document, or contained in any “shrinkwrap” or “clickwrap” agreements, are binding. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

3 Force Majeure. Except for any Fees due hereunder, neither party shall not be liable for any delay in performing or failure to perform its obligations hereunder where such delay or failure results from any cause beyond its reasonable control, including, without limitation, cyber-attacks, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., host or app store providers) or labor disputes.

4 Assignment. Except to an affiliate or in the event of a merger, acquisition or other change of control, neither party may assign this Agreement without the prior written permission of the other party, and any attempt to do so is void. This Agreement shall be binding on any permitted successors and assigns.

5 Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing to the addresses listed above and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

6 Headings; Interpretation. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”

7 General. The failure of Appfiliate to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Appfiliate. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

8 Publicity. Customer grants Appfiliate the right to use Customer’s logos or trademarks in marketing or publicity materials and on its website to identify Customer as a customer that uses the Appfiliate Services.

9 Contacting Appfiliate. If you have any questions about these Terms, please contact support@appfiliate.net.