1. Acceptance of Terms.
a. Amplemarket ("the company" or "we") provides its Services (as defined below) to you subject to this Terms of Service agreement ("TOS"). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
b. Amplemarket may modify the TOS at any time. While we will make efforts to notify as to when any changes have occurred, You shall assume all responsibility in reviewing the TOS periodically so you are apprised of any changes. If you continue to use any Service or Site after changes to TOS are posted, you are signifying your acceptance of these terms. If any change to this TOS is not acceptable to you, your only remedy is to terminate services per Section 4 of this TOS.
c. THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST AMPLEMARKET ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
2. General Conditions/ Access and Use of the Service.
a. Subject to the terms and conditions of this TOS, Amplemarket grants you a non-exclusive, non-sublicensable, non-transferable license to access and use the Services only for lawful purposes.
b. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any CAN-SPAM, Telephone Consumer Protection Act, data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, (c) use the Service with any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: libelous, defamatory, obscene, pornographic, abusive or otherwise illegal or offensive content; spyware, adware, or other malicious code; counterfeit goods; items subject to US embargo; unsolicited mass distribution of email or multi-level marketing proposals; hate materials; hacking/surveillance/interception/descrambling equipment; or stolen products or items used for theft or (d) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks or (e) use the API or the Data in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity. You shall comply with any codes of conduct, policies or other notices Amplemarket provides you or publishes in connection with the Service, and you shall promptly notify Amplemarket if you learn of a security breach related to the Service. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Amplemarket. You are responsible for usage limits set forth in the Order Form and/or Subscription. Amplemarket reserves the right to bill overages, cancel your subscription, or revoke access if limits are not maintained. For use of Site and the Software without limiting the foregoing, you will access the Data solely on a transactional basis. You shall not (and shall not allow any third party to): (a) present the Data so that it appears to be made available by any third party; (b) access the Data in bulk, redistribute, or resell the Data. You are responsible to purchase the sufficient number of seats and access for your usage and company. Only one seat may be used per person for all seat or license-based services. Any individual Software-specific terms are additive to these TOS.
c. You shall use any Personal Data downloaded, accessed or otherwise received through the Service solely in connection with your use of the Service in accordance with this TOS. You represent, warrant, and covenant that you shall process any and all Personal Data for this limited and specified purpose, consistent with any consent provided by the individual to whom Personal Data relates, and that you shall process all Personal Data in compliance with the EU-U.S. and Swiss-U.S. Privacy Shield (the “Privacy Shield”) frameworks as set forth by the U.S. Department of Commerce regarding the transfer of personal information from the EU or Switzerland to the U.S.
d. You may request and receive Data regarding European Union Residents (such as their name, job title, or contact information), which we refer to below as “EU Output Data.” If you do so, you understand and agree that you are the data controller, and we are your data processor, as those terms are used under the GDPR. You also agree that you will not provide any Submitted Data to us regarding any resident of the European Union unless you have obtained legally sufficient consent to do so from the data subject of that Submitted Data. To the extent that Amplemarket processes any Customer Personal Data (as defined in the Amplemarket Data Processing Agreement) that is subject to the European General Data Protection Regulation (GDPR), on Customer’s behalf, in the provision of the services hereunder, the terms of the Amplemarket Data Processing Agreement.
e. Further, You shall not (and shall not allow any third party to): (a) transfer to or use the Data (in aggregate form or otherwise) except as expressly authorized under this Agreement or by Amplemarket, copy, disclose, rent, lease, sell, transfer, distribute, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API or Data. You may not use any part of the Service or Data in any manner that competes with Amplemarket, as solely determined by Amplemarket.
f. Subject to the terms hereof, Amplemarket hereby grants you a non-exclusive, non-sublicensable right to display the Amplemarket logos, trademarks and other identifiers provided by Amplemarket (collectively, the "Amplemarket Marks"), solely for the purposes in connection with your use of the Service and Data. Further, you will abide by any requests by Amplemarket regarding your use of the Amplemarket Marks if Amplemarket determines that your use thereof does not comply with Amplemarket's quality control standards. All use of the Amplemarket Marks in any jurisdiction will inure to the sole benefit of Amplemarket.
g. Any software or data that may be made available by Amplemarket in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree not to access the Service by any means other than through the interface that is provided by Amplemarket for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Amplemarket or any third party is granted to you in connection with the Service
h. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "post(ing)") in connection with or relating to the Service ("Your Content"). You may not claim ownership of content that: (i) was known to a receiving party without restriction before receipt from the disclosing party; (ii) is publicly available through no fault of the receiving party; (iii) is rightfully received by the receiving party from a third party without a duty of confidentiality; or, (iv) is independently developed by the receiving party without reference to Your Content.
i. You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Amplemarket reserves the right to access your account in order to respond to your requests for technical support. Amplemarket shall also have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Your Content and data derived therefrom), and Amplemarket shall be free (during and after the term hereof) to (i) use such information and data to develop and improve (including for diagnostic and corrective purposes) the Services and other Amplemarket offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Amplemarket has the right, but not the obligation, to monitor the Service or Your Content. You further agree that Amplemarket may remove or disable any Your Content or any Data at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to the foregoing), or for no reason at all.
j. Amplemarket will make best efforts to operate using secure, stable processes. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Amplemarket's third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Amplemarket will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
k. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, "Equipment"). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Amplemarket's published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
l. The failure of Amplemarket to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Amplemarket, even though it is electronic and is not physically signed by you and Amplemarket, and it governs your use of the Service.
m. Amplemarket reserves the right to use your name and/or Amplemarket name and logo/assets as a reference for marketing or promotional purposes on Amplemarket's website and in other communication with existing or potential Amplemarket customers.
n. Subject to the terms hereof, Amplemarket may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
3. Representations and Warranties.
You represent and warrant to Amplemarket that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Amplemarket to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Amplemarket's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
This agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless the Customer requests termination at least thirty (30) days prior to the end of the then-current term. Any additions made to the contract will take effect immediately and remain as a permanent amendment to the initial contract unless otherwise agreed to on the date of renewal.
Amplemarket may terminate your Account and this TOS at any time by providing seven (7) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Amplemarket may also terminate this TOS upon fourteen (14) days' notice (or seven (7) days in the case of nonpayment), if you breach any of the terms or conditions of this TOS. Amplemarket reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). All of Your Content on the Service (if any) may be permanently deleted by Amplemarket upon any termination of your account in its sole discretion.
5. DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Amplemarket or by third-party providers, or because of other causes beyond our reasonable control. HOWEVER, THE SERVICE, INCLUDING THE SITE, SERVICE, API AND ANY DATA PROVIDED IN CONNECTION THEREWITH, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AMPLEMARKET EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT AMPLEMARKET DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM AMPLEMARKET OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
6. LIMITATION OF LIABILITY.
a. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL AMPLEMARKET BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CONTENT OR DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM or, IF NO FEES APPLY, one hundred (\$100) U.S. dollars. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
b. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, AMPLEMARKET'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW
7. U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Amplemarket on your Equipment (if applicable) are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
8. Governing Law.
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Amplemarket in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.