Affiniti is a technology company and not a bank. Affiniti provides you with access to products and services provided by third parties, including business credit card issuance. Currently, the Affiniti Services are made available by Patriot Bank, N.A., an FDIC-insured national bank (“Sponsor Bank”). All cards are issued by Patriot Bank N.A. pursuant to license by the card network sponsoring the card program. The Affiniti Services are also integrated with other third-party service providers who may provide other products and services to you or enable Affiniti to provide its Services to you (“Third-Party Service Providers”). To obtain a Card, you must also enter into a Cardholder Agreement.
1. Information About Procedures For Opening An Affiniti Account
An Affiniti Account provides you access to the Affiniti Services. Federal law and banking regulations require certain financial institutions to obtain, verify, and record information that identifies each person who opens an account. When your Company applies for or opens a new account with Affiniti, your Admin User will be asked by Affiniti for your Company’s name, address, date of birth, ownership, government identifiers, financial information, and other information that will allow us to identify you and other control parties, including copies of driver’s licenses or other identifying documentation (collectively, “Application Information”).
2. Electronic Communication
Communications, the Affiniti Services, and services offered by any other Third-Party Service Provider, are provided to you electronically.
2.1 Electronic Signature. As more fully set forth in our E-sign Policy, by accepting this Agreement on behalf of your Company, your control persons and each authorized User within your Company is adopting an electronic signature, and the Company consents and agrees that:
- Your electronic agreement to the Agreement and any agreement accessible through the Platform (including any related documents) has the same effect as if you signed them in ink.
- Affiniti, our Sponsor Bank, and any Third-Party Service Provider can provide all information and disclosures required by law to you electronically.
- Affiniti, our Sponsor Bank, and any Third-Party Service Provider can send important communications and disclosures to you electronically through the Platform or to the email address that you provided to Affiniti for that purpose.
- The foregoing do not affect your non-waivable rights.
2.2 Electronic Communications. Subject to any legally required consent, by using the Affiniti Services or Platform, or by submitting your email address or phone number to us, you (a) agree to receive marketing and transactional communications from Affiniti via email and SMS; and (b) understand that you may opt out of receipt of marketing communications by (i) following the unsubscribe or stop option in the relevant communication, (ii) by emailing us at firstname.lastname@example.org., or (iii) following the prompts in your Affiniti Account. We may still send you transactional communications about your Account if you opt out of marketing.
3. The Affiniti Services
Affiniti will provide the Affiniti Services to you for the term of this Agreement subject to your compliance with this Agreement. As part of the Affiniti Services, Affiniti hereby grants to you a non-exclusive, non-transferable, non-assignable, revocable, worldwide right to use the Affiniti Services and Platform. You acknowledge that the Affiniti Services are cloud-based hosted services and no copies of the Affiniti Services or Affiniti System will be delivered to you unless otherwise specified in one of our other agreements. Affiniti does not convey any right, title or interest in the Affiniti Services, Platform, or Affiniti System to you. Your right to use the Affiniti Services shall terminate upon any termination of this Agreement or any termination or suspension of the Affiniti Services to you.
Affiniti is not your Card issuer; your card will be issued by, and administered by, the Sponsor Bank and Company. Affiniti is responsible for the rewards offered pursuant to the use of your Card, setting your Card’s limits, penalties, and fees related thereto. Your Company is responsible for shipping your Card and all other rights and obligations relating to your Card. Affiniti is not responsible for any decisions made by your Company, your Admin User, or the Sponsor bank relating to your Card,, or your inability to use your Card due to a decision by your Admin User, Sponsor Bank, or Company, each of whom may terminate your access to your Card at any time without recourse by you to Affiniti. Notwithstanding anything to the contrary in this Agreement, Affiniti may immediately pause or terminate your access to your Card through the Affiniti Services if Affiniti reasonably suspects you have violated this Agreement or the Cardholder Agreement, or for no reason, in Affiniti’s sole discretion.
4. Intellectual Property Rights
As between you and Affiniti, the Affiniti System, including its source and object codes, documentation (including all descriptive material concerning the functions and technical specifications of the Affiniti System, user manuals, technical manuals, and other materials issued to you), appearance, structure and organization, is a proprietary product of Affiniti and is protected by copyright and other laws. Title to the Affiniti System, and any copy, update, modification or merged portion thereof, shall at all times remain with Affiniti. You acknowledge that Affiniti expressly reserves the entire right, title and interest in and to the Affiniti System, and retains the exclusive right to reproduce, publish, sell, modify, distribute, prepare derivative programs of, and license to other licensees, the Affiniti System. You shall not decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code or utilize any expression of the Affiniti System in other than object code form. You shall not alter or otherwise modify the Affiniti System. You shall not remove any trademarks, proprietary legends, or copyright notices from the Affiniti System, or reproduce, publish, sell, modify, distribute, prepare derivative programs of, or sublicense the Affiniti System in any manner. Nothing in this Agreement shall confer or grant to you any Intellectual Property Rights in the Affiniti Services or Affiniti System.
5. Affiniti Account And Users
As long as you are not in breach of this Agreement, and you are granted access to become a User after we evaluate and approve your Application Information, you shall be granted and have access to an Affiniti “Account” accessible through the Platform. You agree to not disclose, and keep private, such access credentials. You must not permit any third party to use them. Disclosure of such access credentials or any other unauthorized activity involving your Affiniti Account may result in a loss of access to your Affiniti Account, suspension, or closure. You agree that we can rely on any request or transaction initiated through such credentials without the need for further confirmation. You assume full responsibility for the use of your Affiniti Account by any User you or your Company have access to use your Account. From time to time, you will be invited to enter certain preferences and specifications within your Account that will apply to the Affiniti Services; you assume exclusive responsibility for such selections even if they contain errors by you or result in losses to you. Any additional terms and conditions posted to the Platform with respect to the Affiniti Account or specific Affiniti Services preferences selected by you are incorporated herein by reference.
An Admin User may be granted administrative rights in your Affiniti Account, including the right to allow more than one individual User from your organization to access your Affiniti Account. The Admin User may view all your transactions and deactivate your Account in its sole discretion without recourse to you.
Where there is more than one User in your Affiniti Account, you are responsible for all acts and omissions of each individual User. You warrant and guarantee that each User shall comply with this Agreement. You warrant to us that each User you authorize to access to your Affiniti Account will comply with this Agreement. You further agree that you are responsible for all acts, authorizations and omissions of each individual User, or any person using their credentials to access your Affiniti Account. As between Affiniti and you or your Company, Company is ultimately responsible for all charges on all Cards issued to Users; if a User incurs unauthorized charges, Affiniti will have no responsibility for reversing or otherwise rectifying such charges. You agree that your sole recourse for unauthorized charges shall be dependent on the Payment Network’s decision after reviewing your dispute and/or chargeback request.
You shall notify Affiniti by email to email@example.com. immediately in the event of any loss or disclosure, whether voluntary or otherwise, of any Affiniti Account password or access code to a third party. This notification must be made to Affiniti by the means outlined below and confirmed receipt by Affiniti. Affiniti may interrupt or refuse all access and any orders made using this password within one (1) business day following the receipt of the notification.
You agree that Affiniti will not have any responsibility to verify any transaction in your Affiniti Account initiated by any User. Affiniti is not liable for, disclaims any responsibility for, and you may be liable for, any loss, damage or expense arising from access to an Affiniti Account by any User of your Affiniti Account, including anyone else using credentials to access your Affiniti Account, whether authorized or not. You hereby agree to indemnify and hold Affiniti harmless against all actions, claims or demands arising from actions in your Affiniti Account by you, an Admin User or any other User, including anyone else using their credentials to access your Affiniti Account. For any dispute arising out of your transactions themselves, you must look to your Cardholder Agreement.
Affiniti shall use commercially reasonable efforts to ensure smooth operation of the Affiniti Services for the duration of this Agreement. Affiniti shall not, however, have any liability whatsoever to you in the event of any failure or bugs in the Affiniti Services, or interruptions of the Affiniti Services. When made aware either by you or otherwise of any error, anomaly, malfunction, or bug, Affiniti shall respond in the manner it determines to be appropriate, in its sole discretion.
During the term of the Agreement, Affiniti may maintain, update, modify, or replace the Affiniti Services and the Platform in such a manner as it determines to be appropriate in its sole discretion. Affiniti may, but has no duty to, provide new Affiniti Service versions for you to correct errors, improve, develop, or adapt the existing version and add new functions and features.
7. Collection, Use, Storage, and Disclosure of Personal Information
YOU HEREBY AUTHORIZE AFFINITI, DIRECTLY OR THROUGH OUR SPONSOR BANK OR OTHER THIRD-PARTY SERVICE PROVIDERS, TO MAKE ANY INQUIRIES AND CONDUCT ANY INVESTIGATION TO VERIFY YOUR IDENTITY BEFORE ALLOWING YOU ACCESS TO THE AFFINITI SERVICES OR PLATFORM.
You represent that any information, including Application Information, you provide to Affiniti shall be complete and accurate and you shall promptly correct any errors or update the User Content you provide to Affiniti.
8. Device Security
You shall use commercially reasonable efforts to secure your Data in your possession or under your control, including without limitation multi-factor authentication by default, to secure your access to the Affiniti Service. You assume exclusive responsibility for ensuring the security of your Device and the Data on it. You shall immediately notify Affiniti of any actual or suspected breaches in the security of your Devices or any Data, whether in your Devices or otherwise. Affiniti is not liable for the operation or failure of your Devices or those of any third party, including but not limited to processors, hosting services, or internet service providers.
9. Prohibited Activities
You may not use the Affiniti Services to, directly or indirectly, knowingly or unknowingly assist in any Prohibited Activity or any illegal activity. We may terminate this Agreement if we suspect that you are engaged in, have engaged in, or may soon engage in any Prohibited Activity.
You agree to use the Affiniti Services only for good faith Transactions and not for Transactions on behalf of third parties. You agree to promptly notify Affiniti of any irregularities or actual or suspected unauthorized activity in your Affiniti Account. You shall provide Affiniti with all your Data that is necessary for Affiniti to carry out a Transaction. Affiniti does not have the ability to undo Transactions.
10.1. Account Aggregation Disclosure
Your use of integration of third-party services into your Account, such as linking your Bank Account or book-keeping account with your Account (“Account Aggregation Services”) is subject to the following terms.
Provide Accurate Information. You agree to provide true, accurate, current and complete information about yourself and your accounts maintained using Account Aggregation Services, including financial institutions. You agree to not misrepresent your identity or any Account Information. You represent that you have all the rights to provide such information and license the Content, as defined below. You agree to keep your account information up to date.
License. You are licensing to Affiniti and Third-Party Service Providers any data, information, or User Content you make available through the Account Aggregation Services. You grant to Affiniti and its Sponsor Bank and Third-Party Service Providers a license to access, use and store the User Content. Affiniti and its Sponsor Bank and Third-Party Service Providers may use, display, distribute and reproduce the information obtained via the Account Aggregation Services exclusively for the purposes of delivering the Affiniti Services to you. You may revoke this license at any time by emailing us at firstname.lastname@example.org..
Third-Party Accounts. By using the Account Aggregation Services, you authorize Affiniti and its Third-Party Service Providers to access third-party sites designated by you, on your behalf, and to retrieve information requested by you. Your access to accounts and services provided by a Third-Party Service Provider is subject to the terms and conditions set forth by the applicable Third-Party Service Provider.
To reduce the risk of Affiniti Services being used for money laundering, the financing of terrorism or other Prohibited Activity or otherwise in breach hereof, and to limit Affiniti and Third-Party Service Providers’ exposure to excessive security, financial or reputational risk, Affiniti reserves the right to impose limits on Transactions and other elements of the Affiniti Services at its sole discretion and where in compliance with applicable law, without prior notice. Our Sponsor Bank may separately reserve such rights to impose limits on your accounts held directly with any Sponsor Bank pursuant to the terms of your deposit account or other agreement with such Sponsor Bank.
In the event of an error in a Transaction, you must immediately notify Affiniti of the error via email at email@example.com.. Affiniti uses commercially reasonable efforts to investigate the error, but makes no representation as to its ability to correct the error. You shall provide Affiniti with any information necessary to investigate an error in a Transaction. Transactions will often result in payments from your Bank Account or in respect of other accounts with financial institutions; the availability of error correction or resolution could vary from one financial institution to another. Some payment transactions may be irreversible, so you agree to exercise extreme caution when initiating any Transaction.
11. Your Relationships
Affiniti is not a party to any of your Relationships that give rise to Transactions or your other use of the Affiniti Services. You are solely responsible for any Transactions occurring through the Affiniti Services or other use of the Affiniti Services. Affiniti shall not be liable for any errors caused by you or interruptions of any hosting company computer systems or communication lines. Where your Relationship or a Transaction relates to the purchase or sale of Product, Affiniti has no liability with respect to that Product or any third-party supplier thereof.
12. Your Representations
You hereby represent, warrant, and covenant to Affiniti on behalf of yourself, or if signing for a Company on behalf of that Company, that:
12.1. Legal Authority. The signatory to this Agreement has the legal authority to bind you or your Company to this Agreement and to perform hereunder. You are the exclusive owner of the Affiniti Account and are not operating the Affiniti Account on behalf of any third party (except Admin Users).
12.2. Legal Capacity. Your representative has the legal capacity to enter into this Agreement and perform your obligations hereunder.
12.3. Notice Of Defects. You shall immediately advise Affiniti of defects in the Affiniti Services or any claim or threatened claim against Affiniti.
12.4. Compliance with Laws. Your use of the Affiniti Services conforms to all applicable laws and this Agreement.
12.5. Affiniti Not Liable For Product. As between you and Affiniti, you assume all responsibilities and liabilities associated with any Product that you purchase or sell, and your Relationships.
You agree to defend, indemnify, and hold harmless Affiniti, its directors, officers, employees, agents, assigns, processors, suppliers, Third-Party Service Providers, and successors-in-interest from and against any and all liability, damages, losses, claims, demands, actions, causes of action, costs and expenses (including attorneys’ fees and expenses) arising out of or resulting from: (i) your performance or breach of this Agreement including, without limitation, performance, non-performance or defect in performance, any statement, misstatement, representation or misrepresentation made by you; (ii) the negligent or willful acts or omissions of you or your Users, agents and/or employees; (iii) any statements, claims, representations or warranties made by you or your Users, agents and/or employees, relating to the Products or any other matter; (iv) your provision, or failure to provide Product; (v) any of your Relationships; (vi) your acts or omissions; (vii) you relationship with our Sponsor Bank or any other Third-Party Service Provider; (viii) any and all tax liabilities associated with Transactions, the sale of Product, regardless of which party has a legal duty to collect and remit the same; (ix) use of the Affiniti Account; (x) any vendor to you; (xi) attorneys’ fees and other costs and expenses paid or incurred by Affiniti in the enforcement of this Agreement, or in collecting any amounts due from you hereunder; (xii) responding to requests for Data or your information by third parties including but not limited to subpoenas or court orders for the same; and (xiii) Transactions or financial transactions of you or other Third-Party Service Providers.
14. Term And Termination
The term of this Agreement shall start on the earlier of the date that you have accepted this Agreement via the Platform, or your use of Affiniti Services, and will continue until terminated in accordance with the terms hereof.
You can terminate this Agreement at any time by closing your Affiniti Account or by sending notice to Affiniti that you wish to terminate this Agreement at firstname.lastname@example.org. Affiniti can terminate or suspend performance hereunder and any Affiniti Service provided hereunder (including any addendum hereto) at any time for no reason or for any reason without prior notice to or consent from you. Affiniti also reserves the right to suspend supply of the Affiniti Services or terminate this Agreement without prior notice to you if Affiniti determines, in its sole discretion, that continuing to perform hereunder would expose Affiniti to unacceptable risk, whether legal, regulatory, compliance, security, financial, reputational or otherwise.
14.3. Procedure Upon Termination
Upon termination of this Agreement, you shall no longer be entitled to use the Affiniti Account, Affiniti Services, or the Platform. Upon request by Affiniti at termination, you agree to either destroy or return all Affiniti Data and documentation related to the Platform and Affiniti Services, in all forms, both complete and partial, in all media. All provisions regarding indemnification, representations, warranties, liability and limits thereon and Confidential Information shall survive termination indefinitely. Termination of this Agreement shall not relieve you of your obligations to pay accrued fees or other liabilities incurred hereunder.
Affiniti reserves the right to suspend or discontinue the Platform or any or all the Affiniti Services at any time at its sole discretion without liability or penalty hereunder.
15. Limitation Of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AFFINITI, ITS AFFILIATES, SPONSOR BANK, THIRD-PARTY SERVICE PROVIDERS, AND THE FOREGOING’S AGENTS, SUPPLIERS, AND LICENSORS, SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ATTRIBUTABLE TO LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR BUSINESS INTERRUPTION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF AFFINITI HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT AS REQUIRED BY LAW OR PURSUANT TO THE “ARBITRATION PROVISION AND CLASS ACTION WAIVER” SECTION BELOW, AFFINITI’S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO YOU, OR ANY THIRD PARTY, IN ANY WAY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT (AND ALL OTHER AGREEMENTS BETWEEN AFFINITI AND YOU) WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF $50.00 (FIFTY UNITED STATES DOLLARS).
Affiniti shall use its commercially reasonable efforts to perform its obligations hereunder, however, Affiniti, its Affiliates, Sponsor Bank, Third-Party Service Providers, agents, suppliers or licensors shall not be liable for any loss resulting from the activities of you, nor from any erroneous statements or errors in transmission, nor for any loss resulting from any delay, interruption or failure to perform hereunder due to any circumstances beyond Affiniti’s reasonable control including, without limitation, acts of god, fire, explosion, earthquake, riot, terrorism, war, pandemic, sabotage, accident, embargo, storms, strikes, lockouts, any interruption, failure or defects in Internet, telephone, or other interconnect services or in electronic or mechanical equipment.
16. Disclaimer of Warranties
THE PLATFORM, AFFINITI SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT AND ALL OTHER SERVICES AND PRODUCTS ASSOCIATED WITH THE AFFINITI SERVICES OR PROVIDED THROUGH THE AFFINITI SERVICES (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN “AS-IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. AFFINITI, ITS AFFILIATES, AND ITS SPONSOR BANK, THIRD-PARTY SERVICE PROVIDERS, AGENTS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY, “SUPPLIERS”) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE PLATFORM OR OF THE AFFINITI SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE AFFINITI SERVICES IS AT YOUR SOLE RISK.
NEITHER AFFINITI NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE PLATFORMS OR OF THE AFFINITI SERVICES (WHETHER OR NOT SPONSORED), AND EXPRESSLY DISCLAIM ANY WARRANTIES OF NON-INFRINGEMENT, USABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES THAT THE AFFINITI SERVICES PROVIDED BY AFFINITI OR ITS SUPPLIERS OR THAT THE OPERATION OF THE AFFINITI SERVICES WILL BE INTERRUPTION OR ERROR FREE OR WITHOUT VIRUSES OR OTHER HARMFUL MATERIALS. NEITHER AFFINITI NOR ITS SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE AFFINITI SERVICES IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS PROVISION MAY NOT APPLY TO YOU.
17. Affiniti is Not a Financial Planner, Broker or Tax Advisor
AFFINITI IS A TECHNOLOGY COMPANY AND NOT A BANK, FINANCIAL INSTITUTION OR FINANCIAL ADVISORY SERVICE. NEITHER AFFINITI NOR THE AFFINITI SERVICES ARE INTENDED TO PROVIDE LEGAL, FINANCIAL, INVESTMENT, OR TAX ADVICE.
18. Arbitration Provision and Class Action Waiver
THIS ARBITRATION PROVISION AFFECTS YOUR RIGHTS. PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS. EXCEPT AS OTHERWISE NOTED, CAPITALIZED TERMS HAVE THE MEANING SPECIFIED IN GLOSSARY BELOW.
Any dispute arising in connection with this Agreement will be resolved by binding arbitration whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AFFINITI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the foregoing, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between you and Affiniti will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”). If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call (800) 778-7879 or visit the AAA’s web site at: www.adr.org. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. There shall be a single arbitrator, selected by Affiniti, who shall be an attorney practicing commercial law in New York. The arbitration shall take place in English.
18.4. Notice Of Arbitration; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a physical address, then by electronic mail (“Notice of Arbitration”). Affiniti’s address for Notice is: 222 Broadway Ave, New York, NY 10038. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Affiniti may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Affiniti must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Affiniti in settlement of the dispute prior to the award, Affiniti will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $500.
18.5. Arbitration Fees
If you commence arbitration in accordance with these Terms, payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Affiniti for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the way the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
18.6. No Class Actions
YOU AND AFFINITI AGREE THAT YOU MAY BRING CLAIMS AGAINST AFFINITI ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless Affiniti requests otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
18.7. Modifications to This Arbitration Provision
If Affiniti makes any future change to this arbitration provision, other than a change to Affiniti’s address for Notice of Arbitration, you may reject the change by sending us written notice within thirty (30) days of the change to Affiniti’s address for Notice of Arbitration, in which case your Affiniti Account will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Affiniti may post amendments or revisions to this Agreement on the Platform. Affiniti will provide notice of these amendments or revisions to you through the Affiniti Account or the Platform. If the amendment or revision is required for Affiniti and the Affiniti Services to remain in compliance with applicable laws or regulations, then the amendment or revision shall take effect as of when it is posted to the Platform or on the indicated “as of” date. If you do not close the Affiniti Account within thirty (30) days of notice on the Platform of the amendment or revision, then you shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Platform or by such other means as Affiniti may reasonably prescribe. Notwithstanding the foregoing, Affiniti reserves the right, without any prior notice or consent, to change the method of access to Affiniti Services or the Affiniti Account.
Neither party shall publish negative statements concerning the other party during the term of the Agreement. You shall not use the names, logos or trademarks of Affiniti other than with Affiniti’s prior written consent.
You may not assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Affiniti, whose consent may be withheld for any reason, at Affiniti’s sole discretion. Affiniti may assign any of its rights or obligations hereunder without prior notice to or consent from you. Any assignment hereof not in accordance with this provision shall be null and void.
This Agreement and the provisions hereof shall insure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
19.6. Governing Law
This Agreement is governed by the laws of the State of Delaware without regard to conflict of law principles.
No legal action of any kind arising out of this Agreement may be brought by you against Affiniti if the event giving rise to said legal action occurred more than one (1) year before the legal action commenced. To the extent permitted by law, the parties agree to waive their rights to a jury trial or class action.
19.8. Third Party Beneficiaries
The Sponsor Bank is a third-party beneficiary under this Agreement entitled to enforce the rights of Affiniti against you.
We are under no obligation to provide support for the Affiniti Services. Questions, comments or requests submitted to Affiniti customer service department shall be handled via the contact information for Affiniti provided on the Platform.
If you choose to provide input and suggestions regarding the Affiniti Services (“Feedback”), you agree that we own such Feedback without compensation to you. If you are unable to transfer ownership of the Feedback, you hereby grant Affiniti an unrestricted, perpetual, transferable, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and Affiniti Services and create other products and services.
The provisions of this Agreement are severable, and if any part of it is found to be unenforceable, the other portions shall remain fully valid and enforceable. If any provision of this Agreement is not enforceable in accordance with its terms, such provision shall be reformed to make such provision enforceable in a manner that provides Affiniti the maximum rights and protection permitted at law.
19.12. Whole Agreement
References to “this Agreement” include any fees, schedules, supplementary agreements, the Cardholder Agreement, addenda, appendices and amendments and any other agreements, schedules appendices and amendments promulgated by Affiniti and furnished to you from time to time. This Agreement replaces any earlier versions hereof appearing on the Platform or otherwise.
19.13. Contact Information
The Affiniti Services are offered by Affiniti Finance, Inc. You may contact us by sending correspondence to 222 Broadway Ave, Floor 19, New York, NY 10038 or by emailing us at email@example.com.. To report a complaint relating to the bank services, email firstname.lastname@example.org. with respect to Sponsor Bank.
The following terms shall have the meanings indicated below:
“Admin User” means a User that you have authorized to make Affiniti Services selection preferences on your behalf, activate and deactivate other Users and exercise administrative privileges in your Affiniti Account.
“Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest.
“Affiniti Account” means an account made available to you through which you can transmit instructions or receive information in relation to the Affiniti Services.
“Affiniti Data” means information concerning the Affiniti Services or provided to you by Affiniti through the Affiniti Account or otherwise.
“Affiniti Services” means our Platform, along with our related websites, networks, applications, mobile applications, and other services provided by us hereunder, including (i) the secure communication of Data between and among Affiniti, our Affiliates, you, our Sponsor Bank, and any other Third-Party Service Providers; (ii) Card Transactions; (iii) access to any Card or other financial services offered by Affiniti or through a Sponsor Bank; and (iv) such other services as are available to you through the Affiniti Account from time to time. For the avoidance of doubt, Affiniti is a financial technology company and not a bank.
“Affiniti System” means a cloud-based system operated by Affiniti that allows you to access your Affiniti Account and initiate Transactions.
“Application” means the paper or online application completed by you when applying for the Affiniti Services all of which is incorporated herein by reference.
“Card Transaction” means: (A) Affiniti (i) causing a Card to be issued by Sponsor Bank; (ii) Affiniti using its own funds to load such Card with Transaction funds; and (iii) permitting you to use the Card to complete a payment Transaction with a Merchant; and (B) after the Merchant has processed the Transaction, you reimbursing Affiniti for the amount thereof from your Bank Account or otherwise.
“Card” means (i) a credit in the form issued under license from Visa, MasterCard; or (ii) any other valid card accepted as a method of payment by a Merchant with your prior written approval.
“Cardholder Agreement” means the agreement between you and Affiniti setting forth the terms and conditions of your use of the Card, fees, and other terms as set forth therein.
“Company” means the business that has accepted this Agreement, as identified in an Application, on the Platform, in the Affiniti Account or by other means acceptable to Affiniti.
“Data” means all non-public personal information of yours related to Transactions, such as for example, Card information, or Affiniti Data.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress, works of authorship, inventions, discoveries and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals, and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Merchant” means a third party merchant offering to sell you goods or provide you with services for which you wish to make a payment.
“Payment Network” means any of Visa, MasterCard or any other valid card network accepted as a method of payment by a Merchant or through which Sponsor Bank issues Cards.
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
“Platform” means https://Affiniti.finance or such other sites or applications as Affiniti indicates provides the Affiniti Services.
“Product” means any product or service for sale or provided by you or for which a Sponsor Bank is used to make payment or for which Affiniti Services are used to assist in a payment.
“Prohibited Activity” means, any transaction or account usage, as determined by Affiniti or the Sponsor Bank in their sole subjective discretion, that needs to be restricted, along with any act that is illegal in the United States or in the jurisdiction where the person carrying out the activity is resident, domiciled or located;.
“Rules” means the rules and regulations of Payment Networks including those of Visa (available here https://usa.visa.com/dam/VCOM/download/about-visa/visa-rules-public.pdf) or MasterCard (available here https://www.mastercard.us/en-us/about-mastercard/what-we-do/rules.html).
“Transaction” means (i) sending or attempted sending of Data, by way of the Affiniti Services, between any of you, Affiniti and a Sponsor Bank; or (ii) a Card Transaction.
“User” means a natural person your Company has given access to your Affiniti Account for the Affiniti Services.
“You” means the Company that has accepted this Agreement, as identified in an Application, on the Platform, in the Affiniti Account or by other means acceptable to Affiniti.
“Your Relationship” means the agreement or other relationship between you and a Sponsor Bank or other Third-Party Service Provider that gives rise to you wishing to use the Affiniti Services and carry out Transactions.
“Your Device” means computer system, tablet or phone used by you to manage Data or your business.