Merchant Agreement
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Last Updated: August 1, 2025
This Merchant Agreement (“Merchant Agreement”) is entered into by and between the Merchant listed in an Order Form (“Merchant”) and the Affirm counterpart named in such Order Form (“Affirm”), as applicable (each, a “Party” and collectively, the “Parties”) and effective as of the Effective Date. Upon the execution and delivery of an Order Form by a Merchant and Affirm, (a) such Merchant will become a party to this Agreement and all references to “Merchant” in this Agreement will be deemed to reference such Merchant as the context requires, and (b) such Affirm counterpart will become a party to this Agreement and all references to “Affirm” in this Agreement will be deemed to reference such Affirm counterpart as the context requires, in each case solely with respect to its participation in offering the Services and its actions and omissions on its own behalf conducted under this Agreement. Capitalized terms not otherwise defined herein have the meanings ascribed to them in an Order Form.
The terms and conditions set forth in any attachments or schedules referenced herein are hereby incorporated by reference into this Merchant Agreement. This Merchant Agreement, along with any order form entered into by the Parties (each, an “Order Form”) and any other writing agreed upon by the Parties (collectively, the “Agreement”), will apply to and govern Affirm’s provision of and Merchant’s access to and use of any Services agreed upon by the Parties.
1. General.
(a) Services. Affirm (itself or through its Affiliates or bank partners) offers certain products and services through Affirm’s proprietary platform and other technology and access solutions (the “Services”). Merchant desires to market and offer the Services to its customers and enable such customers to use the Services to purchase eligible goods and services sold by or through Merchant (“Merchant Products”). A “Customer” is any person who applies to use the Services or who uses the Services in accordance with this Agreement. A “Representative” of each Party means its employees, personnel, contractors, representatives, agents or Merchant Personnel. “Affiliate” means a person, company or entity that directly or indirectly controls, is controlled by, is under common control, or working in concert with, a Party hereto, where control means ownership of at least 50% of the equity interests of such entity or the right to direct the affairs of such entity.
(b) Scope. This Agreement will apply to all Services provided by Affirm, including all channels approved by Affirm in writing (each, a “Channel”). Channels may include approved web addresses (each, a “Merchant Site,” and such Channel, “eCommerce”), approved physical retail locations (each, a “Location” and such Channel, “In-Store”) and telesales systems (such Channel, “Telesales”). The Services will only be available in the Territory or Territories set forth in this Agreement. The Parties will comply with (i) applicable Territory-specific arbitration, governing law, and other terms (the “Territory Terms”) and (ii) if applicable, industry-specific terms located at https://www.affirm.com/terms/merchant-policies.
(c) Integration. Merchant’s integration of the Services, as approved in writing by Affirm, will be in accordance with the integration resources and documentation located at https://docs.affirm.com/payments/docs/payments-overview, other integration related pages on Affirm’s website and Affirm’s instructions (the “Documentation” and such integration, the “Integration”). Affirm will not have any liability for Losses resulting from Merchant’s failure to comply with the Documentation. Affirm may, from time-to-time, at its discretion make changes to (e.g., deprecate, replace, rebrand) the Services and the Documentation with no obligation to perform software development or any other manual integration assistance in connection with such changes.
(d) Products. Affirm offers closed-end installment loans for customers to finance the purchase of Merchant Products (“Installments”). For clarity, specific “Pay in [number]” products may be repaid by a Customer in that number or fewer installments. Installments are originated by an Affirm Affiliate or one of its bank partners. Notwithstanding anything to the contrary, as between the Parties, underwriting, credit decisioning, APR, loan amounts, term lengths and cart ranges will be determined by Affirm in its discretion.
(e) Placement.
(i) eCommerce Channel Placement. With respect to the eCommerce Channel, as applicable, Merchant will display the Services in any place or instance in which Merchant references available payment methods, and on the home page, product page, cart page, and checkout page on each Merchant Site.
(ii) In-Store Channel Placement. With respect to the In-Store Channel, as applicable, Merchant will place Affirm signage, with QR code or equivalent best practice call-to-action mechanism, at a minimum of three areas throughout each Location, including, unless otherwise agreed by the Parties, front of store, at the product level on or near pricing information, and at or near the register, in each case, in a manner that makes it likely that customers will see such Affirm messaging and associate it with applicable Merchant Products.
2. Use of Services.
(a) Exclusivity. Except for the Services, Merchant will not integrate, market, offer, sell, or promote any financial products or services in the Territory that: (i) are similar to the Services, including any closed-end installment loan or payment deferral options; or (ii) are open-ended credit programs. Merchant will not be prohibited under this Section from accepting generally accepted multi-purpose credit, charge cards, or debit or secured cards (e.g., MasterCard or Visa cards), provided that Merchant will not permit any such cards to (A) be co-branded, sponsored, or co-sponsored by Merchant, or (B) bear Merchant Marks.
(b) Service Restrictions. Merchant will not: (i) offer for sale or lease, or sell, resell, or lease, or in any way transfer the Services; (ii) attempt to create a substitute or similar service through use of, or access to, the Services; or (iii) access or use the Services in a way intended to avoid incurring Fees, misrepresent usage or performance data, misrepresent transaction amounts or item data, misrepresent user information, or knowingly permit Customers and third parties to engage in actions that are prohibited under the Agreement. In addition, Merchant will not, nor will Merchant allow any third party to (A) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Affirm IP, (B) make unauthorized copies of Affirm IP, (C) modify or remove any proprietary notices, disclosures, disclaimers, or Affirm Marks from the Services or Affirm IP, or (D) use the Services or Affirm IP in any manner or for any purpose other than for which the Services or Affirm IP have been provided or incorporated.
(c) Disclosures and Marketing Materials. Merchant may only use language or materials in the form provided at https://businesshub.affirm.com/hc/en-us/categories/4411551384852-Marketing (“Affirm Approved Materials”) to offer or market the Services (unless an exception is expressly approved by Affirm in writing in accordance with the Brand Guidelines). In any event, wherever Merchant markets, offers or promotes the Services, Merchant will (i) include Affirm Marks and (ii) comply with the Affirm brand and marketing guidelines located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines (the “Brand Guidelines”), unless, with respect to both (i) and (ii), an exception is expressly approved by Affirm in writing in accordance with the Brand Guidelines. Notwithstanding anything to the contrary, to the extent that Affirm provides required disclosures (“Disclosures”) related to the Services, which may include but are not limited to notices required by Applicable Law, requests or guidelines from a competent governmental authority, lender requirements and statements intended to prevent Customer complaints, Merchant will promptly display any such Disclosures on Merchant Channels in accordance with Affirm’s instructions. Upon notice to Merchant, Affirm may revise or update elements of Affirm Approved Materials or Disclosures in the event that Affirm has a reasonable belief that such updates are necessary or appropriate in light of legal, regulatory or lender guidelines or requirements or intended to prevent Customer complaints. Upon receipt of such notice from Affirm, Merchant will promptly, but in any event within five (5) days or as otherwise agreed by the Parties, modify applicable Affirm Approved Materials and Disclosures in accordance with Affirm’s instructions or otherwise take action to come into compliance with this Section, including by removing any non-compliant language or materials. To the extent Merchant is approved to perform In-Store Activities, Merchant will print and deploy Affirm Approved Materials at Merchant’s own expense at each Location no later than 30 days after it begins such In-Store Activities. Affirm may review and confirm Merchant’s compliance with this Section at any time.
(d) Liens Imposed on Merchant. In the event that any encumbrance, debt, mortgage, attachment, pledge, charge, claim, lien, or other security interest, including any filing authorized by Merchant of any financing statement (each, a “Lien”) is created, incurred, assumed, or otherwise suffered to exist upon any Merchant Product, including inventory, assets, or any other property of Merchant, that is the subject of a Successful Transaction, (i) Merchant will promptly notify Affirm in writing of any such Lien, and (ii) upon becoming aware of such Lien, either through notice by Merchant or by other means, Affirm may immediately suspend or terminate the Services, terminate all or part of the Agreement, or exercise any other rights and remedies available under the Agreement, at law or in equity.
(e) Scheduled Maintenance; Capacity Planning. Affirm may apply upgrades, patches, bug fixes, or other maintenance to the Services (“Maintenance”), and Merchant will comply with any Maintenance requirements provided by Affirm. Merchant will promptly notify Affirm of, and assist Affirm in diagnosing, any failure or other impediment to Merchant’s use of the Services.Merchant will notify Affirm as early as reasonably possible of any anticipated substantial increase in Merchant’s or Merchant’s customers’ use of the Services and will provide estimates of anticipated demand upon Affirm’s request. Upon further request by Affirm, Merchant will promptly provide Affirm with aggregated and anonymized data regarding past and anticipated volume through the Services, including pageview volumes for webpages that host Affirm promotional messaging, overall transaction volumes, and Affirm transaction volumes (including average daily transaction volumes, daily impression volume peaks, and hourly impression volume peaks), as applicable. All information provided by Merchant pursuant to this Section will be considered Merchant Confidential Information. Merchant will not use the Services for high-frequency internal Merchant testing or load testing.
(f) In-Store and Telesales Channels. The following terms apply to the extent Merchant uses the In-Store Channel and/or the Telesales Channel, as applicable and as approved by Affirm.
(i) In-Store and Telesales Activities. As applicable, Affirm hereby authorizes Merchant Personnel (defined below) to market and offer the Services to customers (A) with respect to the In-Store Channel, by performing in-store activities that facilitate customers’ use of the Services to purchase Merchant Products (the “In-Store Activities”); and (B) with respect to the Telesales Channel, by telephone to facilitate customers’ use of the Services to purchase Merchant Products (“Telesales Activities”). Merchant permits Affirm, upon Affirm’s request, to review any consumer consents and scripts at any time related to its telephonic activities in connection with the Services.
(ii) Merchant Personnel. “Merchant Personnel” means Merchant’s or third party employees, personnel, contractors, representatives or agents who perform In-Store Activities and/or Telesales Activities, as applicable. Merchant Personnel are not employees of Affirm or any of Affirm’s Affiliates, and neither Affirm nor any of its Affiliates will be liable to Merchant Personnel for any claims or causes of action arising out of, or related to, their performance of the In-Store Activities and/or Telesales Activities, as applicable, even if subsequently deemed to be an employee of Affirm under the Agreement. Merchant and Merchant Personnel may not (x) apply for Affirm on behalf of a Customer, or (y) enable a Customer to apply for Affirm on a device that is not either the Customer’s personal device or Merchant’s pre-approved business device. Upon Affirm’s request, Merchant will remove a Merchant Personnel individual from performing the In-Store Activities and/or Telesales Activities as soon as practicable.
(iii) Training. Affirm will provide Merchant with appropriate training materials and instructions for the purpose of promoting the Services through In-Store Activities and/or Telesales Activities, as applicable (collectively, “Training Materials”). Merchant will ensure Merchant Personnel comply with all Training Materials and instructions provided by Affirm and will not make any statements, commitments, representations or warranties with respect to Affirm or the Services, except as expressly authorized in advance and in writing by Affirm, which authorization may be in the Training Materials. The Parties will identify and agree upon the means of training Merchant Personnel. Merchant will be solely responsible for ensuring that its Merchant Personnel (A) complete all required training prior to performing In-Store Activities and/or Telesales Activities, as applicable, and (B) comply with the instructions and Training Materials provided by Affirm. Merchant will, upon Affirm’s request, certify to Affirm that all applicable Merchant Personnel have completed Affirm’s required training.
(iv) Data Sharing and Performance. Merchant will provide Affirm with a report of transactional data resulting from the applicable In-Store Activities and/or Telesales Activities on a monthly basis, unless the Parties agree in writing to a different timeframe. Such report will include SKU level transaction data, category data, percentage of total transactions that are Successful Transactions (i.e., Affirm’s share of cart data) and any other data reasonably requested by Affirm.
3. Compliance.
(a) Applicable Law. Each Party will comply with all applicable court orders, laws, regulations, codes, and rules imposed by law, any competent government authority, governing body or regulator in the relevant Territory (collectively, “Applicable Law”) in connection with its performance under this Agreement.
(b) No Discrimination or Other Disparate Treatment. Merchant will not discriminate against or otherwise disadvantage its customers who use or desire to use the Services to purchase a Merchant Product, which discrimination or disadvantaging may include, but is not limited to, (i) advertising or imposing surcharges, fees, or other costs on Customers as a result of their use of the Services; (ii) excluding Customers from receiving or participating in any discounts, rebates, savings, offers, incentives, loyalty program benefits, points, or rewards; or (iii) acting in a manner that violates Applicable Law (including Regulation Z, 12 C.F.R. § 1026, if applicable). In the event Merchant violates this Section, Merchant will take all actions necessary to restore affected Customers to the position they would have been in had the violation not occurred, including but not limited to reimbursing Affirm for any amounts Affirm refunds to affected Customers.
(c) Prohibited Business Policy. Merchant will not allow the Services to be used in connection with any Prohibited Business. The categories of business and business practices described in the Prohibited Business Policy (each, a “Prohibited Business”) are located at: https://docs.affirm.com/affirm-developers/docs/compliance_and_guidelines. In addition, Merchant will not market or offer the Services, or allow the Services to be used, in connection with any Merchant Product that is subject to delayed fulfillment (e.g., preorders or backorders), unless Merchant clearly discloses on the product and checkout pages that such Merchant Product is subject to such delayed fulfillment. Merchant will not discuss Affirm or the Services with customers at any place other than Merchant’s usual place of business, where such prohibition includes, by way of example, discussions in such places as a Customer’s home, a consumer’s workplace, dormitory lounges, and facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds, and restaurants.
(d) Privacy; Data Processing and Security. Each Party will comply with the Data Processing Addendum located at: https://www.affirm.com/terms/merchant-policies/global-dpa.
(e) Sanctions. To the extent that a Merchant enables a third party to offer the Services (e.g., a marketplace, franchise or platform) (“Platform Merchant”), Merchant will establish, maintain, and comply with a comprehensive sanctions program (“Merchant Sanctions Program”) that meets the minimum requirements under Applicable Law. Upon request, Merchant will make commercially reasonable efforts to rectify any gaps identified by Affirm regarding Merchant Sanctions Program to the extent required to meet Applicable Law.For the avoidance of doubt, Platform Merchants will comply with all components of the Documentation located at docs.affirm.com, including any elements that may be specific to Platform Merchants.
(f) Risk Evaluation. If Affirm has reasonable concerns about the eligibility of Merchant (or any third party that Merchant enables to offer the Services) to offer the Services in compliance with the Agreement, Merchant will reasonably cooperate with Affirm to allow Affirm to evaluate such party’s eligibility or compliance, which may include providing Affirm with non-publicly available information reasonably requested by Affirm. Any information provided pursuant to this Section that is Merchant Confidential Information will be treated as such in accordance with the Agreement.
(g) Merchant Policies. Merchant will maintain and comply with Merchant’s agreements with Customers and consumer-facing policies (including shipping and fulfillment, privacy, refunds and returns, and dispute resolution) which will meet or exceed reasonable industry standards (each, a “Merchant Policy”), provided that in the event of a conflict or inconsistency between the Agreement and a Merchant Policy, the Agreement will control as between the Parties.
4. Intellectual Property Rights and Licensing.
(a) Ownership of Intellectual Property. As between the Parties, Affirm retains exclusive ownership of all right, title, and interest in and to all IP relating to or embodied in the Services (excluding IP owned by Merchant), including the application programming interfaces related to Affirm’s proprietary platform (“APIs”), and any Confidential Information provided to Merchant by Affirm (collectively, the “Affirm IP”). Neither Party will, by virtue of the Agreement, gain any rights of ownership of IP owned (prior to, on or after the Effective Date) by the other Party. “IP” means all worldwide rights in and to intellectual, industrial, and other property, whether exclusive or non-exclusive, including rights to inventions, trademarks, trade names, trade dress, service marks, logos, brand names, other indicia of origin, trade secrets, know-how, technology, research tools, data, software, improvements, processes, designs, techniques, works of authorship and rights of attribution, whether or not protected by patents or copyrights, the Marks, patent applications, patents, copyrights, moral rights, all other rights pertaining to intellectual property, and all goodwill associated therewith.
(b) Feedback and Improvements. Merchant’s submission of any feedback, comments, or suggestions to Affirm related to Affirm IP (“Feedback”) is voluntary. Notwithstanding any other provision of the Agreement, (i) Affirm may use Feedback and incorporate it into Affirm’s products, technologies, and services without any obligation to Merchant or restriction as to Affirm’s use of such Feedback, (ii) Merchant hereby waives all rights it or its Representatives have or may have, including all IP rights, in and to the Feedback, and will cause its Representatives to waive all moral or similar rights that its Representatives have to Affirm, and (iii) Merchant hereby assigns to Affirm all of Merchant’s rights in and to Feedback and will cause its Representatives to assign all of such Representatives’ rights to Affirm. In the event Merchant is unable to waive or assign its or its Representatives rights in and to Feedback pursuant to Applicable Law, then Merchant hereby grants to Affirm an irrevocable, perpetual, exclusive, royalty-free, fully paid-up, worldwide, license, to use, reproduce, distribute, perform, display and create derivative works of, such Feedback, without the need for a separate writing. Merchant is not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback. If Merchant develops any modifications, corrections, enhancements, derivatives, or extensions of or relating to Affirm IP, all rights, title, and interest in and to all IP therein will be owned exclusively by Affirm. Should Affirm IP become, or in Affirm’s opinion likely become, the subject of an IP infringement claim by a third party, Affirm, at its option, may: (A) procure for Merchant the right to continue using the applicable Affirm IP, (B) modify the applicable Affirm IP to make it non-infringing provided the same functionality is maintained, or (C) terminate this Merchant Agreement or the applicable Order Form as to the potentially infringing Services.
(c) License Grants. Upon the terms and subject to the conditions of the Agreement, each Party (the “Licensor”) hereby grants to the other Party (the “Licensee”) a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute, and transmit the Licensor’s name, logo, and any other trademarks, trade names, service marks, photographs, graphics, brand imagery, text, and other content, in each case provided by the Licensor, in any and all media formats, whether registered or unregistered (with respect to each Licensor, the “Marks”), in connection with the use and marketing of the Services during the Term, subject to the terms herein. Licensee’s use of the Licensor’s Marks may be subject to usage guidelines and quality control standards that Licensor may provide to Licensee from time to time. Upon Licensor’s request, Licensee will provide to Licensor representative samples of Licensee’s use of the Marks, and Licensor may reject any such use in the event that Licensor reasonably believes a deficiency exists in the manner of use of the Marks by Licensee. All goodwill arising out of the use of the Licensor’s Marks will inure to the benefit of the Licensor. Use of a Licensor’s Marks does not create in the Licensee any ownership interest in Licensor’s Marks. Neither Party will register or apply for registration of the other Party’s Marks (or any confusingly similar trademarks, trade names, service marks, logos, or names). Each Party will reasonably cooperate with the other Party with respect to any infringement action regarding such rights.
(d) API; Open Source Software. Subject to the terms and conditions of the Agreement, Affirm hereby grants Merchant a limited, revocable, non-exclusive, non-transferable license to integrate and access the APIs, for the sole purpose of providing and displaying the Services in the Territory and enabling Customers to access and use the Services in the Territory.The Services may include software subject to open source or free software licenses (“Open Source Software”). Affirm provides no, and expressly disclaims any and all, representations, warranties, and conditions concerning any Open Source Software. Nothing in the Agreement grants Merchant rights that supersede the terms and conditions of any applicable Open Source Software license.
5. Payment.
(a) Fees. With respect to each Successful Transaction during the Term, Merchant will pay to Affirm a fee set forth in this Agreement, including (i) an amount equal to a percentage (the “MDR”) of the gross dollar amount of such Successful Transaction (inclusive of any Upfront Payment), plus (ii) a transaction fee (the “Transaction Fee” and together with the MDR, each as provided herein, the “Fees”).
(b) Transactions. “Successful Transaction” means a sale of a Merchant Product to a Customer using the Services that is Captured. A sale is “Captured” when Affirm receives the initial “capture” signal with respect to a sale of Merchant Product(s). Notwithstanding anything to the contrary, a Successful Transaction under this Agreement may occur via (i) a direct API Integration (“Direct”); (ii) a one-time use virtual card Integration (“Virtual Card”); (iii) an Affirm-branded card product (such card and Virtual Card together are referred to herein as a “Card”); or (iv) any other payment solution outside of the Integration (together with Affirm Card, a “Non-Integration Transaction”). Unless otherwise stated in the Agreement, for Non-Integration Transactions, Merchant will pay the MDR set forth in the Agreement irrespective of the indicated Integration type. Notwithstanding anything to the contrary herein, Affirm may (x) reduce Merchant’s Fees applicable to a Successful Transaction, or (y) effective upon written notice (email sufficient) to Merchant, revise the Fee Schedule, any fees or financing programs set forth in the Agreement. In accordance with Applicable Law, Merchant is solely responsible for determining the gross transaction amount payable by Customers (inclusive of any applicable Taxes or other fees).
(c) Payable Amounts. “Payable Amount” means amount payable by Merchant to Affirm pursuant to this Agreement, including but not limited to: (i) accrued but unpaid Fees, which are due immediately upon a Successful Transaction; (ii) amounts relating to unresolved Merchant Customer Disputes; (iii) undisputed amounts owed by Merchant to Affirm, and (iv) any applicable Taxes on the foregoing. Affirm will collect Payable Amounts by one or more of (A) netting out of Payouts, in accordance with the terms herein; (B) debiting from a Bank Account, in accordance with the terms herein; (C) invoicing Merchant, which invoices will be paid by Merchant no later than 30 days after Merchant’s receipt thereof; or (D) if applicable, settling through the applicable payment network. Any invoice not disputed in writing within ninety (90) days of receipt shall be deemed final, conclusive, and no longer subject to objection or adjustment. Any Payable Amount that Affirm is unable to collect or Merchant otherwise fails to pay in accordance with this Agreement will be considered past due (collectively, “Past Due Amounts”). For each month where Merchant has Past Due Amounts, Merchant will incur an interest charge on the aggregate outstanding Past Due Amounts for such month equal to the lesser of (i) an annualized rate of 1.50% (equal to 18% per annum), or (ii) the maximum amount permitted by Applicable Law.
(d) Payouts. Affirm, its Affiliates, or its bank or payment processing partner(s) will, as applicable, (i) disburse to Merchant, or (ii) direct the payment network or payment processor to make available to Merchant, amounts equal to the total amount of Successful Transactions not already disbursed to Merchant less, as applicable, any Payable Amounts (each, a “Payout”). Based on Merchant’s account history and/or Affirm’s periodic risk evaluation, Affirm may, in its sole and reasonable discretion, limit the Payout in whole or in part to Merchant during a certain time period. Any amount withheld by Affirm will not exceed its financial risk exposure. Payouts will be disbursed (A) to Merchant’s Bank Account, (B) at Merchant’s direction, in whole or in part, directly into a deposit account for the benefit of Merchant, or (C) if applicable, to Merchant via its payment network based on its existing settlement cadence. Following disbursement of a Payout in accordance with the above, Affirm will not be liable to Merchant for Merchant’s receipt of such Payout.
(e) Bank Account. Merchant will establish and maintain one or more depository account(s) in each applicable Territory in good standing (each, a “Bank Account”), which Merchant will reasonably cooperate with Affirm to verify from time to time. Merchant will notify Affirm in writing at least five business days prior to any change of a Bank Account. Merchant authorizes Affirm, its Affiliates, or its bank partner(s), and will ensure that Affirm, its Affiliates, and/or its bank partner(s) are authorized by the bank holder of the applicable Bank Account, to debit the applicable Bank Account for Payable Amounts. Merchant will provide Affirm with any necessary documentation related to Affirm’s, its Affiliates’, or its bank partners’ authorization to make disbursements or to debit the applicable Bank Account. Affirm may suspend Payouts in the event that Affirm, its Affiliates or its bank partner(s), as applicable, is unable to debit or disburse Payouts to the Bank Account.
(f) Payment Network Transactions. Applicable Successful Transactions will be processed pursuant to the terms and conditions of the applicable payment network (e.g., Visa) and the terms and conditions of any applicable agreement between Merchant and its acquiring bank. Merchant will be responsible for any interchange or similar processing fees charged by the applicable payment network related to the use of commercial credit or debit products in connection with the Services. Where a Customer obtains pre-authorization on a projected gross dollar amount, such amount is considered the gross dollar amount of such Successful Transaction. Payable Amounts will include all amounts of such Successful Transaction that (i) are forced by Merchant (e.g., Captured funds that bypassed the authorization process); or (ii) exceed the applicable loan amount authorized by Affirm.
(g) Upfront Payment. A Customer may make a one-time partial (“Down Payment”) or complete payment (“Complete Payment”) (collectively, an “Upfront Payment”), of the applicable purchase price when using the Services in connection with a Successful Transaction. Affirm’s obligation to transmit an Upfront Payment to Merchant is subject to and conditioned upon successful receipt of the associated Upfront Payment from Customer. In connection with a Complete Payment, Merchant will pay Affirm the lowest Fees set forth in the Agreement, unless otherwise expressly stated in an Order Form.
(h) Returned Products; Refunds. Merchant’s refund and return policy must be clearly and conspicuously displayed on Merchant Sites or otherwise easily accessible by Customers prior to the Customer’s completion of checkout. The policy must expressly disclose any restocking or similar fees charged by Merchant. In the event a Merchant Product is returned to Merchant by a Customer following a Successful Transaction, Merchant will (i) accept the return only if it complies with the applicable Merchant Policy; (ii) promptly refund the applicable amount to Affirm so that Affirm may credit the Customer’s outstanding balance accordingly; (iii) be solely liable for any Merchant Customer Dispute arising from a partial refund; and (iv) not use, nor permit a Customer to use, the Services to facilitate payment of applicable restocking or similar fees as a standalone charge. Merchant may not withhold applicable restocking or similar fees from a refund processed in connection with the return of a Merchant Product unless such fees are disclosed in advance and are subject to the requirements of Section 3(b) herein (No Discrimination or Other Disparate Treatment).
(i) Customer Dispute Resolution Procedures. Except to the extent otherwise required by Applicable Law, all disputes, inquiries, or complaints by a Customer related to Merchant Products or business (each, a “Merchant Customer Dispute”) will be first directed to Merchant for Merchant to resolve in accordance with applicable Merchant Policy. Merchant will work in good faith to resolve each Merchant Customer Dispute in a timely manner. If Merchant is unable to resolve a Merchant Customer Dispute, Affirm will reasonably assist in facilitating resolution of the Merchant Customer Dispute in accordance with its customer dispute resolution procedures located at: https://docs.affirm.com/affirm-developers/docs/dispute-resolutions (the “CDRPs”), provided that, if applicable, a Merchant Customer Dispute will comply with the rules of the applicable card network. In accordance with the foregoing, Merchant will comply with Affirm’s reasonable requests, including providing Affirm with supporting documentation to resolve the Merchant Customer Dispute. Merchant will direct any disputes, inquiries, or complaints by a Customer related to the Services or business (each, an "Affirm Customer Dispute") directly to Affirm for resolution.
(j) Transaction Errors. To the extent (i) a sale or a loan related to the Agreement is Captured, canceled, or voided by Merchant, directly or indirectly, whether by error or omission or (ii) Merchant uses a payment processor or other similar provider and a sale or a loan related to the Agreement is Captured, canceled or voided by such provider, directly or indirectly, whether by error or omission (each, a “Transaction Error”), the Parties will work together to resolve such Transaction Error. Affirm will have no liability with respect to any Transaction Error related thereto, and Affirm may, in its reasonable discretion, withhold Payouts or invoice Merchant for any amounts related to such Transaction Error.
6. Taxes.
(a) Merchant Tax Obligations. Merchant will be responsible for: (i) all taxes, duties, levies, assessments and other governmental charges, including without limitation, sales, use, excise, value-added, goods and services taxes and similar taxes (collectively, “Taxes”) with respect to the Services and Fees; (ii) determining applicable Taxes for Merchant Products and Service-related payments; and (iii) assessing, charging, collecting, reporting and remitting Taxes to appropriate authorities. Affirm will not be responsible for Taxes on Merchant’s income or gross receipts.
(b) Withholding Taxes. If required by Applicable Law, Affirm may deduct applicable withholding Taxes from Payouts and remit them to appropriate tax authorities. The net amount paid to Merchant after such withholding constitutes full satisfaction of Affirm’s Payout obligations. If Applicable Law requires Merchant to withhold Taxes on Fees payable by Merchant to Affirm, such Fees will be increased so that Affirm receives the full amount it would have received without such withholdings.
(c) Tax Documentation; Informational Returns. Upon Affirm’s reasonable request, Merchant will provide tax information, forms, documents, invoices or certificates to the extent required for Affirm to comply with Applicable Law. If Merchant claims tax exemptions, Merchant will provide valid documentation that satisfies Applicable Law. Affirm may file informational returns with tax authorities regarding Merchant’s use of the Services as required by Applicable Law. Merchant will provide Affirm with its correct and complete legal name, address and tax identification number, and Merchant will reimburse Affirm for any tax-related liabilities imposed on Affirm resulting from incorrect or incomplete information. Merchant consents to electronic delivery of informational returns. Merchant may withdraw this consent by written notice to Affirm, after which Affirm will provide paper copies to Merchant’s address on record.
7. Fraudulent Transactions.
(a) Merchant will designate an individual who will serve as the single point of contact for fraud matters related to the Services. The Parties will work together to prevent fraudulent Customer transactions and minimize the associated risk of loss.Except as otherwise stated in the Agreement, Affirm assumes the risk of loss resulting from fraud by Customers with respect to Successful Transactions. Merchant assumes the risk of loss resulting from fraud (i) caused by Merchant or Merchant’s Representatives, (ii) if applicable, caused by Merchant’s third-party sellers selling goods and/or services through a Merchant Channel or such third-party sellers’ Representatives, and/or (iii) in connection with a change in a Customer’s information (including shipping information) previously communicated to Affirm in the checkout flow after Affirm has approved such Customer, unless Merchant notifies Affirm via the Update Transaction API or Merchant receives Affirm’s prior written approval via email (with U.S. requests sent to orderreview@affirm.com and all other non-U.S. requests sent to internationalorderreview@affirm.com).
(b) If Affirm informs Merchant that a transaction is fraudulent or likely fraudulent before the applicable Merchant Product is shipped (or, in the case of an electronically delivered Merchant Product, before any applicable regulatory void period has expired), and Merchant subsequently ships or provides (or, in the case of an electronically delivered Merchant Product, does not cancel) the applicable Merchant Product despite such information, Merchant will be liable for any loss resulting from such transaction. If Affirm discovers that a Successful Transaction is fraudulent after the applicable Merchant Product is shipped, but before the applicable Merchant Product is delivered or otherwise made available to Customer, and notifies Merchant (such notice, “Affirm Fraud Notice”), Merchant will use best efforts to communicate with the applicable third party to recall the shipment, or, as applicable for services or electronically delivered Merchant Product, cancel the provision of the applicable Merchant Product. Merchant will respond to the Affirm Fraud Notice within 24 hours and will provide Affirm with (i) the current status, (ii) tracking information of the order and (iii) a description of actions Merchant is taking with respect to the fraudulent transaction. Merchant will be liable for any loss resulting from such Successful Transaction if Merchant fails to respond to an Affirm Fraud Notice within such time period.
8. Confidential Information.
(a) Confidential Information. In connection with the Agreement, including the negotiation of the Agreement, a Party (“Recipient”) may receive or have access to confidential or proprietary information of the other Party or its Affiliates (“Discloser''), whether received or disclosed by such Parties or their respective Representatives. As used in the Agreement, “Confidential Information” means, without limitation, the information exchanged by the Parties prior to, during or after the negotiation of the Agreement that should be reasonably understood to be confidential or proprietary in nature, regardless of whether such information was provided subject to a nondisclosure agreement between the Parties, the terms and conditions of the Agreement, any proprietary information, private API keys, technical data, demographic information, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by either Party either directly or indirectly in any form but excluding information that: (i) was lawfully, and not otherwise as a result of any violation of confidentiality obligations, in Recipient’s possession before receiving it from Discloser; (ii) is rightfully received by Recipient from a third party without restriction, and, to Recipient’s knowledge, without a breach of a confidentiality obligation imposed on such third party; (iii) is or becomes generally available to the public other than through a breach of the Agreement; or (iv) was or is independently developed by Recipient without use of or reference to any Confidential Information. For avoidance of doubt, Affirm’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Affirm’s Confidential Information.
(b) Nondisclosure of Confidential Information. Recipient will: (i) keep the Confidential Information of Discloser confidential and not use or copy such Confidential Information other than as expressly authorized by Discloser and as permitted under the Agreement; (ii) protect the Confidential Information of Discloser from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid such unauthorized use or disclosure of its own Confidential Information, but in no event any less than reasonable care; and (iii) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with the Agreement and will be liable for any breach of this Section by such Representatives. It is understood that Discloser’s Confidential Information will remain the sole property of Discloser. In the event that Recipient or any of its Representatives are legally compelled by Applicable Law, subpoena, or similar court process to disclose any Confidential Information of Discloser, Recipient will, to the extent legally permissible, provide Discloser with notice of such circumstances and will limit such disclosure to only what legal counsel for Recipient advises is specifically required by Applicable Law, subpoena, or similar court process. This provision will supersede and replace any previous agreement, whether written or oral, between the Parties hereto regarding Confidential Information. To the extent a Merchant Site is hosted by or the Services are offered by Merchant through a third-party intermediary (each such third party, a “Platform”) which requires Affirm to submit certain data for the purpose of fulfilling Affirm’s contractual obligations to such Platform, Affirm may disclose certain Merchant Confidential Information to such Platform during or after the Term, and Affirm will not be liable for any Processing by such Platform related to such Merchant Confidential Information.
9. Representations and Warranties. Each Party represents and warrants that as of the Effective Date: (i) it is duly formed, validly existing, and in good standing under the laws of its state, province or other jurisdiction of incorporation or formation; (ii) it has the right, power, and authority to enter into the Agreement; (iii) the Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (iv) it is in compliance with Applicable Law in connection with carrying out its obligations under the Agreement; (v) there is no pending or, to such Party’s knowledge, threatened litigation, arbitration matter, or other dispute to which such Party or any of its Affiliates is a party that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such Party’s ability to fulfill its obligations under the Agreement; and (vi) the execution and delivery of the Agreement will not conflict with, or result in a violation or breach of, any of the terms, conditions, or provisions of such Party’s organizational documents or any legal restriction or any agreement or instrument to which such Party is now a party or by which it is bound, or require the consent of any person or entity not subject to the Agreement. Merchant represents, warrants, and covenants that it will convey good and valid title to the Merchant Products delivered or otherwise made available to a Customer as a result of any Successful Transaction, free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind. As applicable, Merchant has all third-party licenses or consents required to enable Affirm to use Merchant Marks in marketing or promotional materials in connection with the Services, at no additional cost to Affirm.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AFFIRM MAKES NO OTHER WARRANTY OF ANY KIND REGARDING THE SERVICES, AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
11. Indemnification.
(a) Merchant Indemnification. Merchant will defend, indemnify, and hold harmless Affirm, its Affiliates, and their respective officers, directors, agents, employees, successors, and assigns (individually and collectively, an “Affirm Party”) from and against all penalties, damages, losses, or expenses (including reasonable attorneys’ fees) (collectively, “Losses”) suffered, incurred, or sustained by any Affirm Party resulting from or arising out of any claim relating to: (i) Merchant’s breach of an obligation under the Agreement, including fines or penalties arising from such breach; (ii) personal injury (including death) or property damage resulting from Merchant’s acts or omissions; (iii) the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, discrimination, or product defects; (iv) any Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Merchant with respect to or in connection with Merchant's use of the Services and any Taxes in connection with Merchant's business; (v) Merchant’s violation, misappropriation, or infringement of the IP of a third party; (vi) fraud, gross negligence, or willful misconduct of Merchant; (vii) the acts or omissions of Merchant Representatives; or (viii) a Security Incident by Merchant.
(b) Indemnification Procedure. A right to indemnification under the Agreement is conditioned upon the following: (i) notice by the indemnified Party (the “Indemnified Party”) to the other Party (the “Indemnifying Party”) after the Indemnified Party’s receipt of the assertion or the commencement of any third-party action, proceeding, or other claim with respect of which the Indemnified Party will seek indemnification under the Agreement; (ii) control of the investigation, preparation, defense, and settlement thereof by the Indemnifying Party (provided, however, that the Indemnifying Party will not, without the prior consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to the indemnified claim); and (iii) cooperation by the Indemnified Party, at the Indemnifying Party’s request, in the Indemnifying Party’s defense of the indemnified claim. The Indemnified Party will have the right to participate in the defense of the indemnified claim at the Indemnified Party’s expense (notwithstanding any indemnification obligations under the Agreement).
12. Limitation of Liability.In no event will Affirm be liable or obligated for any special, indirect, incidental, punitive, exemplary, or consequential damages or lost profits, whether in contract or tort (including breach of warranty, negligence, and strict liability). Affirm’s liability for any Losses arising out of or relating to Affirm’s performance or failure to perform its obligations under the Agreement will be limited, in the aggregate, to an amount equal to the total Fees payable to Affirm under the applicable Order Form for the 12 months prior to the month in which the most recent event giving rise to such liability occurred. All claims for any Losses arising out of or relating to Affirm’s performance or failure to perform its obligations under the Agreement must be filed within two years of the date on which the claim arose, unless such timeframe is unenforceable under Applicable Law, in which case the applicable statute of limitations of the relevant jurisdiction will apply. This limitation of liability will apply to the maximum extent permitted by Applicable Law and notwithstanding the failure of any limited remedy. Each Party enters into this Agreement in reliance upon the limitations of liability set forth in this Section, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
13. Termination.
(a) Termination. Affirm may terminate the Agreement without cause at any time by giving Merchant notice. Either Party (the “Terminating Party”) may terminate the Agreement or suspend the Services, in whole or in part, if (i) the other Party terminates its business operations; (ii) the other Party becomes insolvent; (iii) the other Party suffers the appointment of a receiver or makes an assignment for the benefit of a creditor; (iv) the other Party enters into any voluntary or involuntary bankruptcy proceedings; (v) the other Party misrepresents, omits, or falsifies any information or documentation provided to the Terminating Party; (vi) in the Terminating Party’s reasonable discretion, this Agreement or the Services provided hereunder are causing a material negative impact to its business operations (an “Adverse Impact”); provided that (A) the Terminating Party first provides written notice (email sufficient) of such Adverse Impact to the non-terminating Party, and (B) if such Adverse Impact is capable of being cured, the non-terminating Party has not cured such Adverse Impact within thirty (30) days of its receipt of such written notice; (vii) the other Party commits a material breach that is not cured within 30 days after notice by the Terminating Party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within 30 days; (viii) necessary in order to comply with Applicable Law, or (ix) the Terminating Party has a reasonable suspicion of fraudulent transactions or other suspicious activity related to the Services. The Terminating Party will not be liable for any damages arising in connection with its termination or suspension of the Services pursuant to the foregoing.
(b) Obligations upon Termination. Termination will not release either Party from financial obligations owed to the other Party under the Agreement whether such financial obligations are incurred prior to or after expiration or termination of an Order Form that is subject to this Merchant Agreement. The Parties will cooperate to complete all outstanding obligations to Customers related to the Services. Upon termination of the Agreement:
(i) All authorizations and licenses granted by either Party will immediately terminate, and all rights will revert to the owner, provided that Affirm may continue to use Merchant Marks to the extent reasonably necessary to complete all outstanding obligations to Customers related to the Services. Merchant will immediately cease to represent itself as an Affirm partner and cease its use of any of the Affirm Marks.
(ii) Upon request, and except as required by Applicable Law or, with respect to Affirm, as required to maintain or retain for servicing Customers, each Party will immediately destroy or return to the requesting Party, and upon request, certify such destruction of, all of the requesting Party’s Confidential Information, including materials derived from such Confidential Information.
14. Miscellaneous.
(a) Currency. Unless otherwise specified in an Order Form, all references to currency, monetary values and dollars set forth herein will mean the local currency of the applicable Territory and all payments hereunder will be made in such currency.
(b) Force Majeure. Except for each Party’s payment obligations, neither Party will be liable for any failure or delay in performance of its obligations under the Agreement if and to the extent such failure or delay is caused, in whole or in part, directly or indirectly, by fire, storm, earthquake, flood or other weather, terrorism, epidemic, pandemic, unavailability of necessary utilities or raw materials, unavailability of components, war, riot, elements of nature or acts of God, regulation, ordinance, instructions of government or other public authorities, any other event that is traditionally recognized by the relevant courts of competent jurisdiction as an event of force majeure, or any other cause beyond the reasonable control of such Party, provided that the nonperforming Party is without fault in causing such failure or delay, and such failure or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the nonperforming Party through the use of alternate sources, workaround plans, or other means. In the event of such a force majeure event, the nonperforming Party will give prompt notice to the Party to whom performance is due that describes at a reasonable level of detail the circumstances causing such failure or delay and the expected period of time the nonperformance will continue. The nonperforming Party will be excused under this Section so long as such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay; however, notwithstanding the foregoing, such delay will not be excused under this Section for more than 90 days.
(c) Dispute Resolution.
(i) Informal Dispute Resolution. Prior to the initiation of arbitration, the Parties will first attempt to resolve their Dispute informally as set forth in this Section (the “Informal Dispute Resolution Process”). Either Party may initiate the Informal Dispute Resolution Process by giving notice of a Dispute to the other Party (the “Notice of Dispute”), which will include a reasonably detailed statement of the Dispute. During the Informal Dispute Resolution Process, each Party will honor all reasonable requests made by the other Party for non-privileged information reasonably related to the Dispute, which will include, but not be limited to, records pertaining to its receipt and handling of transactions processed through the Services that are directly relevant to verifying the accuracy of financial obligations owed to the other Party. All negotiations and proceedings pursuant to this Section will be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
(ii) Formal Dispute Resolution. Either Party may seek formal resolution of a Dispute upon the earliest to occur of the following: (A) 30 days have elapsed from the delivery of the Notice of Dispute; (B) commencement of arbitration is appropriate to avoid the expiration of an applicable limitations period or to preserve a superior position with respect to other creditors; or (C) a Party makes a good-faith determination that a breach of the Agreement by the other Party is such that injunctive relief is necessary. Terms and conditions governing other dispute resolution, such as arbitration, will be set forth in the applicable Territory Terms.
(d) Assignment. Either Party may assign (whether by operation of law, merger or other combination) all or part of the Agreement without the prior consent of the other Party. Following such assignment, the assignee will have the same rights and obligations as the assignor and the assignee will agree in writing to be bound by the terms and conditions of the Agreement. Notwithstanding anything to the contrary in the Agreement, in the event Merchant or a Merchant Channel undergoes a change of majority ownership or control or Merchant assigns all or part of the Agreement, Merchant will, as soon as reasonably practicable (and in all cases within thirty (30) calendar days), (i) notify Affirm of the foregoing and (ii) provide any information reasonably requested by Affirm in connection with its risk assessment of the assignee or new ownership entity, as applicable. Failure to provide such notice or information will be considered a material omission of information and will result in Affirm’s right to terminate this Agreement.
(e) No Third-Party Beneficiaries. The Agreement is for the benefit of, and may be enforced only by, Merchant and Affirm and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.
(f) Independent Contractors. The Parties are independent contractors. Nothing in the Agreement will be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties. Neither Party has the authority, without the other Party’s approval, to bind or commit the other Party in any capacity.
(g) Further Assurances. Each Party will, upon the request of the other Party, promptly execute and deliver such documents and perform such acts as may be necessary to give full effect to the terms of the Agreement.
(h) Interpretation. For purposes of the Agreement, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole. Where agreement, approval, authorization, acceptance, consent, or similar action by either Party is required under the Agreement, such action will be performed in accordance with Section 14(j) herein (Notices, Acceptances and Approvals) and, except where expressly provided as being in the discretion of a Party, will not be unreasonably delayed or withheld. The headings in the Agreement are for reference only and will not affect the interpretation of the Agreement. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Unless otherwise specified, all references herein to days, months, quarters, or years shall be deemed references to successive calendar days, calendar months, calendar quarters, or calendar years. Where the context of this Agreement requires, singular defined terms shall be considered plural and plural defined terms shall be considered singular.
(i) Waiver. The failure of any Party to enforce any of the terms and conditions of the Agreement will not constitute a waiver of that Party’s right thereafter to enforce each and every term and condition of the Agreement. Any single or partial exercise of any right hereunder will not preclude further exercise of the same right or the exercise of any other right hereunder by either Party. The waiver by any Party of any default or breach of the Agreement will not constitute a waiver of any other default or breach.
(j) Notices, Acceptances and Approvals. All notices, acceptances, approvals, and other communications provided pursuant to the Agreement will be in writing, which may be provided electronically, and deemed duly given when: (i) sent via electronic mail by Merchant to legalnotices@affirm.com, (ii) sent via electronic mail by Affirm to Merchant’s electronic mail address included on the most current Order Form or otherwise provided by Merchant in writing (e.g., in an onboarding form), or (iii) captured in the merchant portal or through other electronic means (e.g., “click-to-accept” radio buttons). Notices will be deemed received one business day after being sent or captured in accordance with the foregoing.
(k) Entire Agreement. The Agreement constitutes the entire understanding and contract between the Parties and supersedes and terminates all prior agreements (including any prior nondisclosure agreements entered into between the Parties), understandings, arrangements, commitments, or representations, oral or written, between the Parties with respect to the subject matter hereof. Unless otherwise stated in the Agreement with respect to a specific provision, any conflicts between provisions in the Agreement will be resolved in accordance with the following descending order of precedence: the provisions of any materials referenced in the applicable Territory Terms, the provisions of the applicable Territory Terms, the provisions of any materials referenced in this Merchant Agreement, the provisions of this Merchant Agreement, and the provisions of the applicable Order Form. The Agreement may be executed in two or more counterparts, each of which will be an original instrument, but all of which will constitute one and the same agreement. Except as expressly provided under the Agreement, each Party will bear its own costs and expenses incurred in connection with each Party’s obligations under the Agreement.
(l) Amendments and Severability. Affirm may amend the Agreement effective upon 30 days’ prior notice to Merchant. Merchant’s continued use of the Services beyond the effective date of the amendment constitutes acceptance thereof. If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
(m) Survival. Sections 5-14 herein, and any other provision of the Agreement that contemplates performance or compliance subsequent to termination or expiration of the Agreement (including but not limited to the arbitration and governing law provisions provided in the Territory Terms), will survive termination of the Agreement until all such obligations are completed; provided that with respect to Section 8 herein (Confidential Information), such survival will expire on the third anniversary of the effective date of the termination or expiration of the Agreement.