Last modified: February 28, 2019
1. Use of Prestozon
A. Authorized Use. Subject to the terms set forth in this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable license during the applicable subscription term to (i) access and use the Services in conjunction with the advertising services accounts of Customer and its Clients with Amazon solely for their respective internal business purposes subject to any additional restrictions or terms that may be set forth in the applicable Order; and (ii) use and reproduce a reasonable number of copies of the documentation from the online knowledge base made available by Company in connection with Customer’s authorized use of the Services (“Documentation”). Customer acknowledges from time to time, Company may modify and update the features and functionality of the Services.
B. Amazon Services. Customer acknowledges that the Services interoperate with advertising services operated by Amazon (“Amazon Services”). In order to use the Services, Customer is required to use “Login with Amazon” to grant Advertising API access to Company, thereby giving Company permission to access Customer’s and its Clients’ advertising data. Customer hereby authorizes Company to view, modify and make changes to Customer’s and its Clients’ advertising campaigns in the Amazon Services in the course of providing the Services. Customer represents and warrants that it has all necessary legal rights, express consents and authority from each of its Clients to disclose the information and provide access to Company to each such Client’s advertising data and to enable Company to use such data and the related Amazon account as contemplated hereunder in order to provide the Services. Company is not responsible for Amazon’s website, payment portal, or Customer or its Clients’ Amazon accounts, all of which are governed by Amazon’s own terms and policies. Customer remains responsible for ensuring that Customer and its Clients’ use of the Amazon Services, as well as Customer’s use of the Services in connection with the Amazon Services, complies with all policies, terms and rules applicable to Amazon Services. Customer acknowledges the Amazon Services may be modified, suspended or discontinued at any time by Amazon, and that Company will not be liable to Customer or its Clients for any such modification, suspension, or discontinuance.
C. Restrictions. Customer will not, and will not permit or authorize any Client or any other party to:
• Modify, disassemble, decompile or reverse engineer or attempt to derive the source code of the software or technology providing the Services (except as may be permitted by law);
• Interfere with the operation or functionality of the Services;
• Resell, distribute, sublicense, lease, transfer or share the Services with or for the benefit of any third party (other than Clients);
• Remove, modify or otherwise tamper with notices or legends on the Services or Documentation;
• Attempt to probe, scan, penetrate, breach or test the vulnerability of the Services or disable or circumvent the Services’ security or authentication measures;
• Introduce into the Services any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
• Use or access the Services for the purpose of building a competitive product or service;
• Publicly disseminate performance information or analysis (including benchmarks) relating to the Services; or
• Use the Services for any unlawful purpose or in a manner which violates or infringes any laws, rules, regulations, third party intellectual property or privacy rights.
2. Customer Responsibilities
A. Account Registration. To access and use the Services, Customer will be required to establish account(s) with Company (“Account(s)”) via “Login with Amazon” (as described above in Section 1.B), and manage access by Customer’s authorized personnel. By creating an Account, Customer agrees to: (i) provide accurate, current and complete Account information both to Amazon and Company; and (ii) immediately notify Company of any unauthorized use of Customer’s Account or any other breach of security in relation to the Services known to Customer. Customer is solely and entirely liable for all activities conducted through Customer’s Account and responsible for ensuring that any individual authorized by Customer to use the Account is aware of and complies with the terms and conditions of this Agreement.
B. Customer Data. Customer is responsible for the collection and use of the data and information which Customer supplies to the Services on behalf of Customer and its Clients, either uploaded directly to the Services or transmitted to or through the Amazon Services (collectively “Customer Data”) and ensuring that Customer has necessary authority from Customer’s Clients to share the Customer Data with Company. Between Company and Customer, Customer is solely responsible for the accuracy, quality, integrity and legality of the Customer Data. Customer agrees to not use the Services to send Company any sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information (including, but not limited to, financial, social security numbers or other government identification numbers, health, or other information where unauthorized disclosure could cause material, or severe harm or impact to Company or third parties).
C. Other Customer Responsibilities. Customer is responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other software or services (including but not limited to the Amazon Services) needed to access the Services. Customer is responsible for use of the Services solely in compliance with any applicable federal, state, local, or international law or regulation.
D. International Users. The Services are controlled and operated from the United States and is subject to its laws. If Customer chooses to access the Services from outside of the United States, Customer does so at its own risk and is responsible for complying with all applicable laws, rules, and regulations of such jurisdiction.
3. Fees and Payments
A. Fees. The Services are offered pursuant to a subscription plan, as further detailed in the applicable Order. Unless otherwise stated in the applicable Order, all fees are quoted in the United States currency. Payments for some subscription fees are due upon the start of the initial subscription term, and the start of each renewal subscription term, and other fees which are based on monthly usage and billed in arrears. Fees for the applicable subscription period are non-cancellable and all fees once paid are non-refundable. Company reserves the right to modify Company’s fee structure at any time and with thirty (30) days’ advanced notice, and such new fees will apply at the time of Customer’s next renewal subscription term. If Customer does not want to renew its subscription to the Services, Customer must notify Company at least thirty (30) days prior to the end of the then-current subscription term or Customer will be charged for the next renewal subscription term.
B. Payment. Customer shall make payment of all applicable fees either (i) using Amazon’s payment portal or such other approved payment vendors made available to Customer during Account set up, or (ii) if specified in the applicable Order, within thirty (30) days of the date of Company’s invoice. For payment by via Amazon or an alternate payment vendor, Customer authorizes Company to charge the credit card and applicable payment vendor during the subscription term for the full amount of Customer’s subscription fees (including any applicable taxes). If, for some reason, Company is unable to process Customer’s payment in a timely manner, Company will contact Customer by email at the email address provided with Customer’s Account. Customer’s use of the Services may be suspended if Company is unable to process Customer’s payment or if Customer’s account is otherwise past due. Delinquent payments shall bear interest at the rate of one percent (1%) per month (or if less, the highest rate permitted by law) from the payment due date until paid in full.
C. Taxes. All fees payable by Customer under this Agreement are exclusive of any applicable sales or use taxes (such as GST or VAT). Any taxes (if applicable) will be added to Customer’s fees or may be charged separately, unless Customer shall timely provide Company with a valid tax exemption certificate acceptable to the relevant taxing authorities.
4. Intellectual Property Rights
A. Services. All rights, title and interest in and to the Services and all related contents, features, and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection, and arrangement thereof), are owned by the Company and its licensors, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
B. Customer Data. As between the parties, Customer and its Clients own and retain all rights to the Customer Data. Customer grants to Company, a worldwide, limited license to access, use, host, reproduce, modify, distribute and display the Customer Data (including any personally identifiable information submitted to the Services by Customer) for the purpose of providing the Services as set forth herein on behalf of Customer. Company also collects and analyzes data and other information about its customers’ use and operation of the Services, including Customer Data which has been anonymized and does not include any personally identifiable information (collectively “Anonymized Data”). Customer hereby grants to Company the worldwide perpetual, irrevocable, royalty-free, transferable, non-exclusive right and license to collect, store, access, distribute, sublicense, modify and use the Anonymized Data to improve and enhance Company’s systems, algorithms, products and services.
C. Feedback. Customer may provide Company with feedback, including comments regarding flaws, errors, bugs, anomalies, problems with and/or suggestions relating to the Services (“Feedback”). Customer agrees that Company may, in its sole discretion, use the Feedback in any way and Customer hereby grants to Company a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without any obligations or restrictions.
D. Trademarks. Each party’s name and logo, and all related names, logos, product and service names, designs, and slogans are the property of such party or its respective affiliates or licensors. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners. During the term of this Agreement, Customer grants Company the right, without compensation, to use Customer’s name and logo in Company’s customer list on Company’s website and other marketing materials.
E. Confidential Information. “Confidential Information” means business or technical information, including product plans, designs, source code, finances, marketing plans, business opportunities, personnel, research, trade secrets, development or know-how of the disclosing party, the financial terms of this Agreement and any third party information that the disclosing party is obligated to keep confidential, that is either marked or designated as “confidential” or “proprietary” or which, under the circumstances taken as a whole, reasonably should be understood to be confidential. In addition, all details about the uses, functionalities or other aspects of the Services (including user interface, screenshots and specific features of the Services) are Company’s Confidential Information, and Customer Data is Customer’s Confidential Information. Confidential Information shall not include information which: (a) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis by a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (c) is developed independently by the receiving party without use of the disclosing party’s Confidential Information and by persons without access to such information. The receiving party shall use measures at least as protective as those it uses for its own confidential information (but no less than reasonable measures) to keep confidential and not to disclose to any third party any Confidential Information of the disclosing party, except to those of the receiving party’s agents, representatives and employees who need to know such Confidential Information, who are informed of the confidential nature of the Confidential Information and who agree to be bound by terms of confidentiality at least as protective as those in this Agreement. The receiving party shall not use any Confidential Information, directly or indirectly, for any purpose other than as necessary to perform its obligations and exercise its rights under this Agreement. Each party shall be responsible for any breach of this Agreement by those parties with who it shared the information. If a receiving party becomes legally compelled to disclose any Confidential Information, it shall provide the disclosing party with prompt prior written notice to the extent legally permitted and assistance (at the disclosing party’s expense) in obtaining a protective order. If a party breaches or threatens to breach the obligations of this Section, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies.
5. Term & Termination
A. Term. This Agreement shall continue in full force and effect for so long as Customer subscribes to the Services and continues to maintain an Account with Company through “Login with Amazon,” unless earlier terminated in accordance with this Agreement. Unless otherwise stated in the applicable Order, the subscription term for Services will automatically renew for an additional period equal to the duration of the initial subscription term (or at least one (1) year if the initial term was less than one year) unless either party provides the other party with written notice of cancellation at least thirty (30) days prior to the start of the new term.
B. Suspension. Customer acknowledges and agrees that Company may suspend Customer’s Account(s) for the Services (i) for nonpayment as described in Section 3.B above; and (ii) immediately in the event Company has determined, in its sole discretion, that Customer or its Clients have been using the Services in a manner that does not comply with all policies, terms and rules applicable to Amazon Services, breaches Sections 1.B, 1.C or 2.B, or otherwise threatens the security, integrity or availability of the Services.
C. Termination for Breach. Either party may terminate this Agreement and the Services during the then-current subscription term upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of notice from the non-breaching party specifying the breach.
D. Effect of Termination. Upon any termination of this Agreement, Customer shall cease all use of all of the Services, and all Customer Data and related reports stored in the Services will cease to be available to Customer. To revoke Company’s Advertising API access to Customer’s and its Clients’ Amazon accounts, Customer needs to proactively terminate its connection to Company and the Services through “Login with Amazon.” The provisions of Sections 3, 4, 5.D, 6, 7, 8 and 9 of this Agreement shall survive any termination or expiration of this Agreement.
6. Disclaimer of Warranties
CUSTOMER AND ITS CLIENTS’ USE OF THE SERVICES IS AT THEIR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL OTHERWISE MEET CUSTOMER OR ITS CLIENTS’ NEEDS OR EXPECTATIONS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. Limitation on Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), ARISING OUT OF OR IN CONNECTION WITH COMPANY’S USE, OR INABILITY TO USE, THE SERVICES WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO CUSTOMER, ITS CLIENTS OR ANY OTHER PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR CUSTOMER’S USE OF THE SERVICES UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM. NOTHWITSTANDING THE FOREGOING, NO LIMITATION OF LIABILITY SHALL APPLY IN CASE OF CLAIMS RESULTING FROM THE INTENTIONAL UNAUTHORIZED USE OF THE OTHER PARTY’S TECHNOLOGY OR INTELLECTUAL PROPERTY. THESE EXCLUSIONS ARE MEANT TO APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF THE FAILURE OF ANY SPECIFIC REMEDY.
A. By Customer. Customer shall indemnify, defend, and hold harmless Company and its employees, employees, agents, officers and directors, licensors and service providers from any third party claim or suit against such party (including claims from Customer’s Clients) based on or arising from: (i) Customer’s use the Services for any unlawful purpose or in a manner in breach of the terms this Agreement or which otherwise violates or infringes any laws, rules, regulations, third party intellectual property or privacy rights; (ii) allegations that the access, use or provision of any Customer Data violates any applicable law, regulation or the proprietary rights of others when used by Company as permitted hereunder; (iii) Customer’s or its Clients’ failure to comply with any policies, terms and rules applicable to Amazon Services or (iv) Customer’s failure to obtain its Client’s authorization to provide the Customer Data to Company and utilize the Services as permitted herein on such Client’s behalf.
B. By Company. Company shall indemnify, defend, and hold harmless Customer and its employees, employees, agents, officers and directors from any third party claim or suit against Customer based on a claim that the technology used to provide the Services infringes any patent, copyright, trademark or trade secret and Company shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement. If Customer’s use of the Services is, or is likely, in Company’s reasonable determination, to be enjoined, Company may, without limiting its indemnity obligations hereunder, procure the right for Customer to continue to use the Services or modify the Services in a manner that has materially equivalent functionality so as to avoid such injunction. If the foregoing options are not available on commercially reasonable terms and conditions, Company may terminate the Agreement upon written notice and refund to Customer on a pro-rata basis all pre-paid fees attributable to unused portion of the subscription term for the applicable Order. Company will not be responsible for any infringement claims to the extent they are based upon (i) the use of Customer Data, Amazon Services or any other material of software not furnished by Company; (ii) Customer’s use of the Services outside the scope of the applicable Documentation or this Agreement; or (iii) any action or omission of Customer for which Customer is obligated to indemnify Company under Section 8.A above. THIS SECTION STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS BASED ON THE SERVICES.
C. Indemnification Procedure. To avail itself of the foregoing indemnification, the applicable indemnified party (“Indemnified Party”) will give the other party (“Indemnifying Party”) timely written notice of the claim and control of the disposition thereof; provided, that failure to give timely notice will not relieve the Indemnifying Party of its obligations except to the extent that such untimely notice materially impairs the Indemnifying Party’s ability to defend such claim. The Indemnified Party will cooperate with the Indemnifying Party’s reasonable requests (at the Indemnifying Party’s expense) in connection with the defense and settlement of such claim. The Indemnifying Party will not settle any claim for which indemnity is sought unless such settlement includes an unconditional release of the Indemnified Party from all liability on the claim.
A. Assignment. This Agreement is not assignable or transferable, in whole or in part, by either party without the other party’s prior written consent; provided, however, either party may assign the Agreement to any of its corporate affiliates or to a successor as a result of merger, consolidation, acquisition or sale of all or substantially all of such party’s assets so long as the assignee agrees in writing to assume all obligations and liabilities of the assigning party hereunder.
B. Notices. Customer agrees that any notices, agreements, disclosures or other communications that either party sends electronically will satisfy any requirement that such communications be in writing. For those notices under this Agreement intended to have legal effect (e.g. regarding breach or indemnification), such notices shall be delivered by personal delivery, by certified or registered mail, return receipt requested or by electronic email transmission, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.
C. Changes to Terms of Service. Company may revise and update these Terms of Service for Advertising Agencies from time to time in Company’s sole discretion, and will notify Customer of such modifications by posting the revised Terms of Service for Advertising Agencies and/or providing notice via the Services or Customer’s Account. Customer’s continued use of the Services after the Terms of Service for Advertising Agencies have been updated constitutes Customer’s acceptance of all modifications in the updated Terms of Service for Advertising Agencies. Customer is expected to check its Account on a regular basis so that Customer is aware of such updates, as well as to confirm that Customer’s contact, payment card or other information provided to Company continues to remain current and accurate.
D. Governing Law & Arbitration. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. Each party agrees that any and all actions brought to enforce this Agreement or resolve any dispute arising out of or relating to this Agreement or the Services shall be brought on an individual basis only (no class representation) and resolved by binding arbitration before the American Arbitration Association (“AAA”) in accordance with the then current Commercial Arbitration Rules of the AAA, with such proceeding to be conducted in San Francisco County, CA. Any award shall be final and binding and judgment thereon may be entered in any court of competent jurisdiction. Each party will bear its own cost of arbitration. The foregoing will not preclude any party from seeking preliminary injunctive relief.
D. Severability & Waiver. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
E. Relationship of the Parties. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties.
Your Comments and Concerns
All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: [email protected]