AMP Text Marketing
The terms “American Marketing & Publishing, L.L.C.” or “AMP” or “us” or “our” or “Publisher” or “we” refer to the owner of the website and provider of the Services, a limited liability company whose registered office is 915 East Lincoln Hwy., DeKalb, IL 60115. The terms “you” and “your” refer to the viewer of the website, or the user of the Service, including agents or employees of commercial entities utilizing the Service.
Messages sent by companies utilizing our messaging platform are intended for recipients over the age of 13 and are delivered via US short code 36000. While most individuals who opt in to join a merchant’s commercial text marketing list will receive significantly fewer messages, depending on the list you opt-in to, you may receive as many as 30 text messages per month for each keyword list that you opt-in to receive messages from, or even more messages if you explicitly agree to receive more and do not opt-out of the program. Messaging & Data rates may apply. Messages are sent from an automated system. Your consent to receive messages is not required for the purchase of goods or services. This service is available for subscribers on AT&T, Verizon Wireless, T-Mobile®, MetroPCS, Sprint and Nextel, Virgin Mobile USA, U.S. Cellular®, Boost, and others in the US. All carriers are not liable for delayed or undelivered messages. Many international carriers are also supported. For help, text HELP to 36000, whichever one applies, email us at email@example.com, or call 1-800-807-6870, option 5. You may stop mobile subscription at any time by sending a text message STOP to short code 36000. Your phone must have text messaging capability.
Your use of the Service is expressly conditioned upon your assent to these Terms and your full acceptance and consent to be bound by these Terms. Please read these Terms carefully. As noted below, American Marketing & Publishing LLC reserves the right to modify and update these Terms, from time to time, by posting any such new or modified Terms to the relevant Website or Websites.
The Text Service
For entities such as businesses, units of government, civic groups, or other organizations, the Services include a web-based text marketing platform for creating and sending text messages to a group of Subscribers (the consumers or other members of the public who join your opt in list) by capturing and storing mobile numbers that have opted into your list via the use of your keyword, providing automatic removal of mobile numbers that have asked to be removed from your list, and access to an SMS gateway for distribution of messages to the appropriate mobile operators. We provide MT (Mobile Terminated) outbound messages through various downstream providers and routes, and the level of service and support for some special features varies according to the specific route.
For individuals accessing our text marketing platform, the Services allow them to become Subscribers by opting to join the text marketing distribution list of third parties such as businesses they patronize or organizations or entities they want to be in regular communication with. The Services allow them to opt-out of a particular text distribution list by sending STOP to 36000.
AMP provides Third Parties (most typically business entities but also civic organizations, units of government, or individuals) with access to AMP’s commercial text marketing platform (“Platform”). As a consumer, you may opt to subscribe to the regular or periodic text messages sent by such entities by sending a text message in the form of that merchant’s opt-in code or keyword from your mobile phone or mobile device to 36000 and assenting in writing or by replying yes via text or e-mail. The Third Party that you have opted-in to receive messages from will then be able to use our Services to send you their messages at the times and with the frequency that they choose. The Platform also facilitates efficient communication from Third Parties to consumers via email and social messaging.
AMP is not responsible for the content of messages sent by Third Parties, and does not verify, validate, endorse offers, or guarantee that an offer sent by such an entity will be honored by them. You agree that AMP expressly disclaims any warranty related to the accuracy of information sent to you by Third Parties or to the validity of any offers you receive from a Third Party or Third Parties.
Third Parties are solely responsible for redeeming offers sent via the Services and for information contained in their messages. The Third Party is the issuer of the message and is fully responsible for all goods and services it offers or provides to you and for any and all injuries, illnesses, damages, claims, liabilities and costs (“Liabilities”) it may cause you to suffer, directly or indirectly, in full or in part, whether related to the use or redemption of an offer or not.
As a condition of receiving text messages via the Services, you waive and release AMP and its subsidiaries, suppliers, vendors, affiliates, partners, officers, directors, employees and agents from any Liabilities arising from or related to your use of the Services, AMP’s acts or omissions in providing the Services, or for any act or omission of a Third Party in connection with your use or reliance on a text message received from a Third Party or the information or services or goods it provides in connection with it.
Your sole and exclusive right and remedy in case of dissatisfaction with the Services or any other grievance shall be your termination and discontinuation of access to, or use of the site, or to opt out (in the case of text, by texting STOP in reply to any unwanted text message) unsubscribe (in the case of email, by replying UNSUBSCRIBE in the subject line) or otherwise canceling the Services by contacting the Third Party that has been sending you messages. If you provide us notice in writing at our mailing address of 915 East Lincoln Hwy, DeKalb, IL 60115 or via firstname.lastname@example.org we will take commercially reasonable steps to prohibit the Third Party from sending messages to you that are facilitated by the Platform.
If you are a representative of a business that has purchased advertising, text marketing or other services from American Marketing & Publishing, L.L.C. and entered into a separate agreement in connection with such a transaction, then the General Terms & Conditions of that agreement will prevail in the event of a conflict between the terms of this agreement and that agreement. AMP only provides that the text messages you send through the Service are processed correctly and delivered to the applicable mobile telecommunications network. AMP is not responsible for the final delivery of the message, as this is the responsibility of the mobile operators.
AMP sends and receives text messages via mobile network operators, and the timing of the broadcast of those messages is subject to the constraints imposed by those operators. While AMP shall use commercially reasonable efforts to deliver your messages as quickly as possible, we cannot guarantee, nor commit to, a specific maximum delivery time. Actual delivery times will depend on the specific policies and constraints of the various entities involved in the transmission of your messages across the mobile network. AMP is not liable for any loss incurred by the failure of a message to be delivered in a timely manner, or to be delivered at all, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from AMP for any such failure. You further agree that message contents are considered to have zero value.
Your text list will contain only mobile numbers from individuals that have opted into your text marketing program. You may request AMP to add additional mobile numbers in your possession to your list, but such request must be accompanied with detailed documentation clearly demonstrating that the individuals owning these numbers assented in writing to receiving text messages from you. Furthermore, this documentation must comply with the rules and regulations published by the MMA and other accepted industry guidelines for opting into a text marketing program and must be in compliance with all applicable laws and regulations including the Telephone Consumer Protection Act and others. Such requests, at the sole discretion of AMP, may be denied. You acknowledge and agree that, should any individual directly contact you to request they be removed from your list, that you shall instruct them to text the reply STOP or STOP and your keyword on short code 36000 and remove their number through the Service, and that they will receive no further messages from you.
You agree to abide by all the applicable local, state and national laws and regulations regarding text marketing and are solely responsible for all acts or omissions that occur through your use of the Service, including without limitation the content of your messages transmitted through the Service. Without limiting the foregoing, you promise to acquaint yourself with the rules and regulations governing text messaging by reviewing the following laws and visiting the following websites:
You promise to utilize the Service only in conformance with these standards and you agree, to the fullest extent permissible by law, that with respect to the Telephone Consumer Protection Act of 1991, 47 U.S.C § 227, and its Regulations, 47 C.F.R. § 64.1200, (TCPA) that you, and not AMP, initiates or causes to be initiated any “telephone call” that results in the delivery of a mobile message to any cellular telephone service, when such mobile phone number was used to send a message on your behalf. You furthermore agree, to the fullest extent permissible by law, that with respect to the Controlling the Assault of Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any regulations promulgated thereunder, that you, and not AMP, is the “sender” of any electronic mail delivered to a message recipient when such message was sent on your behalf. In addition:
- You agree to use the email messaging functionality of the Platform only in compliance with the CAN-SPAM Act and all other applicable federal, state, and local laws and regulations, including those relating to advertising, sales or promotional practices, redemptions, refunds and provision of your products or services, laws that govern false, unfair and deceptive practices, coupons, alcohol or tobacco, health or safety, laws that govern lotteries, sweepstakes, contests and promotions, and laws that govern the collection of donations and charitable giving. You promise to enable all message recipients to withdraw consent, unsubscribe, or opt-out of receiving messages and to immediately programmatically or manually remove such message recipients from the Platform and Advertiser’s lists after receipt of a request to withdraw consent, unsubscribe, or opt-out.
- You agree to utilize the Platform only for lawful purposes, and to refrain from sending messages that are not appropriate for children under 18 years of age. You agree that you shall not use the Platform to send message content that is libelous, scandalous, threatening, harmful, or offensive, or that otherwise violates or infringes the rights of any third party.
When you subscribe to the Service, you will be assigned a unique username and password that will be used to access the Service. It is your responsibility to maintain the confidentiality of those login credentials, and you agree to notify AMP if you suspect that there has been unauthorized access to your account, since any messaging activity that is deemed abusive, fraudulent or illegal may be grounds for the termination of your user account and the recovery of damages at the sole discretion of AMP.
You accept that the Service is provided for professional use only, and you agree that your use of the Service shall not include:
- Misrepresenting your identity in your text messages;
- Sending any message content that is unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable;
- Sending any message content that may infringe upon the intellectual property rights of third parties;
- Attempting to gain unauthorized access to other accounts using the Service, or networks connected to the Service, using password hacking or any other method; or
- Engaging in any other activity that AMP believes could subject it to criminal liability or civil penalty;
You agree that AMP is, under no circumstances, responsible for the contents and/or accuracy of your messages, or your failure to properly secure the explicit written permission to send messages to consumers, and AMP will only transmit your messages on a basis of good faith that you use the Service in accordance with these Terms. AMP is not responsible for the views and opinions contained in any of your messages or broadcasts. AMP will not be liable for any misuse of the Service by you, or by your reliance on the Service.
We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Service, including the web pages that are part of the Service. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained as part of the Service are the sole property of AMP or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not modify, alter, create any derivative works, reverse engineer, decompile or disassemble any portion of the Service.
AMP may require that you periodically send new Subscribers and the existing Subscribers who have opted in to your text marketing list clear opt-out instructions in a manner compliant with and conforming to the rules and guidelines of the MMA. Any individual choosing to opt out of your messages by replying STOP to a received message will automatically be removed from your list. You may not condition consumer consent to receive messages from you on the sale of goods or services. If any individual contacts you directly to request that they be removed from your text marketing list, it is your sole responsibility to honor those requests and to remove them from your list, using the Service.
Data Compilation, Sharing, Dissemination & Privacy
In order to ensure your compliance with these Terms, to ensure that AMP complies with local, state, and national laws and industry best practice guidelines, and to develop and share text marketing subject matter expertise, best practices, and success stories among and with similarly situated businesses, we will regularly monitor the messages that you send. We believe that the broad-based collection and dissemination of specific messages and their effectiveness as reported by you or determined by us stands to make the commercial investment in our text marketing platform a richer one via sharing, learning, contribution, and collaboration. Any such compilation, analysis, sharing or dissemination shall be done in the sole discretion of AMP. Nonetheless, we recognize that some of our customers may be uncomfortable with the sharing of their message content, feedback, list size or results and in such a case we ask that the authorized Third Party representative notify us consistently with the notice provisions of the contract for text marketing services and we will take all reasonable steps to keep such data and information private and confidential.
Your payment for services provided by AMP shall be deemed completed when you are charged the full contract amount by AMP. If for any reason AMP is not able to collect payment from the credit card, debit card, or via ACH from the banking institution and account on file for your account, an attempt will be made to contact you, during which time the account will be suspended. If Publisher is not able to elicit payment from you, your access to the Service will terminate effective immediately.
Marketing Assistance, Materials and Guidance
In connection with the purchase of access to our Services, AMP may provide its customers with marketing materials or collateral to increase awareness of your text marketing program. All such materials, their content, accuracy, and their use, posting, and distribution are your sole responsibility, and you explicitly agree to any and all liability relating to them.
AMP may provide technical support or may assist you with the actual creation and sending of messages on your behalf, or may provide message suggestions or marketing ideas for your use of the text marketing service. You agree to indemnify and hold AMP and its agents harmless, free and clear of any and all liabilities that may arise in connection with AMP’s work in this regard, including without limitation the creation or sending of text messages in error, or that contain an error, or the rendering advice or giving marketing suggestions that prove to be ineffective or disadvantageous.
No Warranty; Limitation of Liability
You acknowledge that text messages are not encrypted and that the electronic intercept of text messages by third parties is possible.
AMP shall use commercially reasonable efforts to make access to the Service available through the required access protocols, but makes no warranty or guarantee that (i) the Service will be available at any particular time; or (ii) you will be able to access the Service at any particular time or from any particular location. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE WEBSITE AND TEXT MARKETING SERVICES, ADVICE, COACHING, AND GUIDANCE OFFERED BY AMP TO YOU ON THE UTILIZATION OF TEXT MARKETING, ALL MARKETING MATERIALS PRODUCED FOR YOU OR DISTRIBUTED ON YOUR BEHALF BY AMP, AND ANY OTHER PRODUCTS OR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,”WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED.” NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, AMP DOES NOT WARRANT THAT THE USE OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THAT THE WEBSITE OR SERVICE WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS, OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. AMP MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
AMP SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE WEBSITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE OR DATA, AMP IS NOT RESPONSIBLE FOR THOSE COSTS.
AMP’S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE WEBSITE OR SERVICE FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE AMOUNT OR AMOUNTS ACTUALLY PAID BY YOU TO AMP FOR SERVICES GIVING RISE TO THE CLAIM MADE DURING THE SIX (6) MONTHS PRIOR TO THE FIRST SUCH CLAIM BEING MADE.
User Warranties; Indemnification
You warrant and represent to AMP that you are and shall at all times remain in full compliance with these Terms all applicable laws, rules and regulations with regard to your use of the Websites and Service, including without limitation the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, the guidelines published by the Mobile Marketing Association at http://mmaglobal.com/education/bestpractice and all other local, state, and national laws and regulations concerning privacy and text messaging.
Modification of Terms
We periodically make updates and modifications to improve the Service and some changes may require an update or revision to these Terms. We reserve the right to change or discontinue any aspect or feature of the Service, as well as modify, change and/or update these Terms, from time to time, as we deem appropriate. Any updates to these Terms shall be posted on this Website, from time to time. If you do not agree with any such changes, your use of the Service may be cancelled in accordance with the procedures for cancellation set forth herein.
Termination, Cancellation and/or Suspension by AMP
We also reserve the right to suspend, terminate or cancel your access to or utilization of Service at any time for any reason in our sole discretion. In such a situation, your access to the Service will be disabled, and AMP shall have no obligation to you after any termination or cancellation of these Terms, except that if and to the extent you still have ratable portions of your term reflected in the accrued prepayment in your account, AMP shall within thirty days refund the amount of such pre-paid credits.
The provisions regarding ownership, payments, warranties and indemnifications will survive any suspension, termination or cancellation of your use of the Services or Website.
Termination by the User
You are free to terminate or cancel your use of the Service at any time, and for any reason, provided that you notify us, in writing, of any such termination or cancellation not later than thirty (30) days prior to the auto-renewal date. Such notification shall be sent to American Marketing & Publishing, L.L.C., 915 E. Lincoln Hwy, DeKalb, IL 60115, Attn: Text Marketing Director or via e-mail to email@example.com and shall state clearly the Advertiser’s intention not to be automatically renewed and stating the name of the business and the name of the person authorized to cancel the automatic renewal. Notwithstanding the foregoing, unless due to a breach solely by AMP that it fails to cure within thirty (30) days of its receipt of your written notice, in no event shall AMP be obligated to refund to you the reasonable value of any ratable portions of your term reflected in the accrued prepayment in your account.
If you are a representative of a business that has purchased advertising, text marketing or other services from American Marketing & Publishing, L.L.C. and entered into a separate agreement in connection with such a transaction, then the General Terms & Conditions of that agreement will prevail in the event of a conflict between the terms of this agreement and that agreement.
Failures or Delays
Without limitation, AMP shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, failure of heating air conditioning equipment, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of AMP. In addition, AMP shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material, services, or assistance necessary for the performance of the Service.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind AMP in any respect whatsoever. All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. AMP may give notice to you by means of a general notice on the Website or Service, electronic mail to your e-mail address on record in AMP®’ account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in AMP’s account information.
These Terms shall be governed by and construed in accordance with the laws of the State of Illinois notwithstanding its laws governing conflicts of laws. The parties agree that any action or proceeding brought to defend the rights or enforce the obligations of a party hereto shall be brought in the 16th Judicial Circuit Court in DeKalb County, Illinois. In any action or proceeding to enforce rights or recover damages under these Terms, AMP, if the prevailing party, will be entitled to recover from you all legal costs, including reasonable attorneys’ fees.
The terms and conditions of Service are only those stated herein, which shall constitute the complete agreement between the parties.
HOMETOWN MOBILE REWARDS APP™
These Terms and Conditions of Use (this “Agreement”) constitute a legal agreement between you (“You” or “you”) and American Marketing & Publishing, LLC, a Delaware limited liability company (“AMP”) that owns and publishes the technology, software, data and/or services that comprise the Hometown Mobile Rewards App™ (“Application” or “HRA”). This Agreement shall govern Your use of and access to the Application and the websites, including www.hometownrewardsapp.com, and www.ampcorporate.com owned or maintained or made available to You and others by AMP (“Website” or “Websites”) that include data or information related to the Application.
The purpose of this Agreement is to set forth the terms and conditions under which, among other things, AMP will license to You for your personal use, certain technologies, software and/or services so that You can utilize the Application through your mobile device, and so that you can access and/or use the Websites (collectively, the “Purpose”).
AMP does not exert any control over any merchants, retailers, commercial ventures or other third parties who may utilize or access the Application or Websites or make Submissions to them, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party.
AMP hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use AMP’s HomeTown Mobile Rewards App™ via mobile application solely for the Purpose. AMP may periodically update or modify the Application, release new versions or create extensions or modules related to it, each of which may, at AMP’s discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application.
3. Your Responsibilities.
You shall be solely responsible for all Submitted Information you input into the Application or that AMP inputs at your direction or with your permission. It is your sole responsibility to ensure that all Submitted Information is truthful, accurate, tactful, and generally respectful of others. Your Submitted Information must comply with all laws, rules and regulations at all times. You are solely responsible for maintaining all passwords and access codes to the Application, and for refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.
You may not distribute or make the Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, or store any content, photos, text, messages, ratings, or other information (collectively, “Submitted Information”): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy Submitted at the Websites or within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You may not use or otherwise export or re-export the Application except as authorized by United States law and the laws of the jurisdiction in which the Application was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law. You shall defend and indemnify AMP at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.
5. AMP’s Right to Restrict, Charge For, and Terminate Services.
AMP shall be entitled, in its sole and absolute discretion, to restrict or terminate, without notice of any kind, Your license to or access to use the Application for any reason. In addition, AMP shall be entitled in its sole and absolute discretion, to temporarily suspend, shut down, or permanently discontinue providing the Application to You, to any merchant, to other specific users, or to the public as a whole. AMP may in its sole discretion restrict the Application to those consumers who pay a fee (though no fee is currently charged by AMP) and AMP in its sole discretion may create a fee structure for access to the Application reflecting any financial arrangements it chooses. In such a case, You would be denied access to the Application unless you decided to accept and pay the fee for continuing access or use.
Termination. This Agreement is effective until terminated by You or AMP. You are entitled to stop using and accessing the Application at any time and you may terminate your assent to this Agreement by providing written Notice to American Marketing & Publishing, LLC; 915 East Lincoln Highway; DeKalb, IL 60115. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Websites including without limitation, the Merchant Portal.
Your rights under this license will terminate automatically without notice from AMP if You fail to comply with any term of this license. Upon termination of the license, You shall cease all use of the Application, and destroy all copies, full or partial, of the Application. In the event that AMP determines, in its sole and absolute discretion, that You have breached this Agreement, committed any fraud or deception, breached any AMP policy in effect from time to time or otherwise failed to perform to the standards required of AMP, AMP shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the foregoing cases at any time and for any period of time. Additionally, AMP may for convenience suspend or permanently discontinue the Application at any time and quit providing you with services of any kind related to the Application. AMP shall not be responsible for the return of any Submitted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. The rights, obligations, restrictions, and promises agreed to by You and AMP herein shall survive any termination of this Agreement.
7. Intellectual Property.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and AMP, You shall be deemed to be the sole owner of all Submitted Information entered into the Application or otherwise Submitted by You; and (ii) AMP is the sole owner of the name “AMP” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to AMP regarding the Application or the Website shall, upon submission to AMP, be owned solely and exclusively by AMP. You acknowledge and agree that the licensors or other suppliers of any third party software embedded or included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to AMP.
In exchange for Your use of the Websites and/or the Application, You hereby grant to AMP an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, copy, reproduce, publish, edit, distribute, commercially exploit, repurpose, and display any and all Submitted Information You post to the Website, submit to AMP or post through the Application, in any form, and to sublicense such rights through multiple tiers of sublicensees, in connection with AMP performing the services described herein. Finally, You irrevocably waive, and cause to be waived, against AMP and its users any claims and assertions of moral rights or attribution with respect to Your Submitted Information. AMP shall be entitled to display any content including commentary, advertising, and other commercial or paid content within the Websites and/or Application, including without limitation adjacent to Your Submitted Information.
Except as explicitly set forth herein, neither AMP, its affiliates or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either express or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You acknowledge that AMP may terminate or significantly modify the Application and or may modify the services related to the Application or discontinue providing the Application or Websites at any point in its sole discretion and you agree that any earned but unused rewards, reward points, or record of progress toward potential rewards that you have made toward a particular merchant reward is valueless until the moment it is redeemed and honored by the merchant.
You agree and acknowledge that the Application and Websites are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby agree and acknowledge that: (i) AMP shall not be responsible for any actions taken or omissions by any other party using the Application or viewing or reviewing any of Your Submitted Information; (ii) AMP does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) AMP is not a party to any transaction between you and any consumer, store, retailer or business with which AMP may have a business relationship, and as such, any disputes regarding purchases, rewards and/or any other aspect of any transaction or other commercial dealings is solely between You and such third party; (iv) AMP is not responsible for any other party’s promises, compliance with applicable laws, rules or regulations; (v) AMP’s services are administrative in nature and AMP is not responsible for ensuring that any third party honor any reward, loyalty or other obligations such third party may have towards You; (vi) AMP shall not, under any set of circumstances, be responsible or liable for any content, promises, text, photographs and/or other Submitted Information, including any Submitted Information which may violate applicable law and/or a third party’s intellectual property rights. You furthermore acknowledge and agree that the Application and/or Websites may not function properly or as intended at times.
While it is AMP’s objective to make the Application accessible at all times, the Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Websites or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of AMP, access to the Websites and/or the Application may be interrupted, suspended from time to time, or terminated permanently. In particular, and not in limitation of the foregoing, AMP shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT AMP SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR ANY SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OR FOR THE TERMINATION OF THE APPLICATION.
To the extent that you become aware of commercially valuable, non-public, trade secret information that a reasonable person would regard as the sensitive and confidential to AMP, including without limitation any such information designated by AMP as confidential and non-public, you agree not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as required by law or in furtherance of the purposes of a written agreement with AMP. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information discovered by you or disclosed by AMP, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice.
10. Strict Limitation of Liability.
AMP SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT, THE LICENSE GRANTED BY THIS AGREEMENT, THE TECHNOLOGIES OR PROCESSES THAT ARE RENDERED OR INITIATED BY THE APPLICATION OR WEBSITE, OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AMP’S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $10.00
11. Use of the Application and Website
You agree to use the Application and Website only in good faith for the purposes described herein, and you agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the requirements and restrictions in this Agreement. AMP reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content AMP deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While AMP reserves the right to monitor all submissions and/or content submitted at the Website and/or within the Application, it has no obligation to do so.
12. Copyright and Reproduction Restrictions.
The Application and Website are copyrighted in their entirety by AMP. You may not use the Website, Application, the content, any components of the Website, Application, or content, or any other materials from either in any manner that may infringe upon any AMP copyright or other intellectual property right, proprietary right, or property right of AMP or any third party. You may not modify, reproduce, copy, republish, display, distribute, sell, rent, or otherwise commercially exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means any portion of the Application or Website, or the content or any information or materials retrieved from parts of either of them, including, without limitation, text, graphics, and logos, for any purpose. You may not create derivative works of the Application or Website.
13. Communications Restrictions.
You may not use the Application or any other interactive service of AMP that may be available to You to transmit, upload, post, distribute or facilitate distribution of content of any type that:
- Is false or deceptive, threatening, abusive, or harassing, defamatory, libelous, invasive of another’s privacy, tortious, or that is unlawful or otherwise violates AMP’s rules or policies;
- Contains software viruses, malware, or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
- Victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
- Constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”);
- Misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of AMP, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than
- You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
Could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
14. Third Party Content.
The Website and Application content may contain and/or provide access to content, including rewards, offers and incentives, advice, opinions, etc. provided by third parties. You may find portions of this Third Party Content or the fulfillment of promises or incentives to be unreliable, poorly administered, or dishonored, or you may find the content to be biased, unrepresentative, offensive or objectionable on other grounds. The third party from whom or which any such Third Party Content originates is solely responsible for it and AMP assumes no responsibility to verify, has no control or influence over, and makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, AMP has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any disappointment, loss, or damage of any kind incurred as a result of the use of any Third Party Content. No information posted by AMP or by third parties should be regarded as legal or financial advice. AMP is not responsible for and makes no warranty or representation regarding and does not endorse any linked website that may be found in the Application or Website or any service, product or information provided on or through the linked website.
15. AMP’s Commitment to Avoid Intellectual Property Infringement.
If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide AMP’s Agent for Notice with the following information (Your “Notice”):
- A description of the copyrighted property that You believe to have been infringed;
- A designation of the AMP owned Application or Website and description of where on that site the material that You claim is infringing is located on the Website or within the Application;
- Your name, entity name, mailing address, phone number, fax number, and email address;
- A statement by You that you have a good faith belief that the use of the material in the Application or Website is not authorized by the copyright or intellectual property owner, its agent, or the law;
- A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner’s behalf;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property.
AMP respects the property rights of others and will appropriately respond to such notices. AMP’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Copyright Notice Agent
American Marketing & Publishing, LLC
P.O. Box 801
DeKalb, IL 60115
Telephone: (815) 756-2840
Facsimile: (815) 756-1821
16. Disputes and Venue Designation.
Any dispute arising out of or relating to this agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by binding arbitration administered by JAMS in accordance with its Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator, and shall be conducted in DeKalb County, Illinois. Each party shall bear its own costs relating to such arbitration, and the parties shall equally share the arbitrator’s fees. Judgment on any award resulting from such arbitration may be entered in any court having jurisdiction. This clause shall not preclude AMP from seeking injunctive relief in aid of arbitration, or pending the outcome of arbitration, from a court of competent jurisdiction. If this arbitration provision is deemed invalid, the parties agree that the court of proper and exclusive jurisdiction to resolve any action arising out of this agreement shall be the 16th Judicial Circuit Court in DeKalb County, Illinois. Each party hereby waives any right it may have to participate in any class actions or class arbitrations. Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Illinois, without reference to conflict of law principles. You hereby consent to exclusive jurisdiction in DeKalb County, Illinois, and agree not to raise any defense of forum non conviens or any similar defense. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is contrary to public policy or otherwise unenforceable, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
Merchant Terms and Conditions of Use
The Merchant Agreement executed separately by You or your authorized representative, the End User Terms and Conditions of Use and these Merchant Terms and Conditions, and those terms and conditions incorporated by those documents by reference represent the legally binding terms of an Agreement (collectively “Agreement”) governing the business relationship between You and AMP as it relates to the HomeTown Mobile Rewards App™ (also referred to herin as “HomeTown Rewards App” or “HRA”) and the rights, duties, and obligations undertaken by You and AMP related to the Application and the Website. During the length of the Merchant Agreement, AMP will provide the AMP services and/or programs (collectively, “AMP Programs”) described in the Merchant Agreement separately executed by you. In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the “Agreement”), the order of control shall be: (i) the Merchant Agreement, (ii) these Terms and Conditions and (iii) End User Terms and Conditions of Use and (iv) any other Terms and Conditions that are or become incorporated by reference in the Merchant Agreement or these Terms. Any capitalized terms that are not defined in the Merchant Agreement have the meanings ascribed to them in these Terms and Conditions. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Merchant Agreement executed by you, and, together with the Merchant Agreement and all attachments thereto and the End User Terms and Conditions of Use, govern your use of the Application, Website and all services related to the HomeTown Mobile Rewards App™.
2. Data Ownership and Other Intellectual Property Rights.
AMP is the sole and exclusive owner of all right, title and interest in and to any data provided to AMP by Your customers or any end user to AMP in connection with the AMP Programs, including without limitation all e-mail, telephonic, IP address, and/or other contact information or identifying information including all transactional data collected through the Application or Website that you may have access to during the period in which AMP provides You services related to the Application or the Website (“Customer Data”). As such, your access to such Customer Data may be shared with you, limited, suspended, or terminated in the sole discretion of AMP.
AMP owns all right, title and interest in and to the AMP Programs including, without limitation, all intellectual property rights. Except as set forth in the Agreement, all rights not expressly granted to You are reserved by AMP. You agree not to copy, duplicate, recreate, disassemble, reconstruct, or reverse engineer the AMP Programs and AMP’s other intellectual property, expressed concepts and ideas, or interoperability interfaces underlying such intellectual property.
AMP hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use AMP’s Application, Website, and those non public portions of the Application or Website that are accessible to you as a commercial customer (“Merchant Portal”) in furtherance of the services that are the subject of the Merchant Agreement with AMP that has been executed by You. The Merchant Portal and other AMP Programs are for internal business purposes so long as your account with AMP remains current and active. You are solely responsible for protecting the access passwords required to use the AMP Programs and for any authorized or unauthorized use made of any such passwords. The AMP Programs and all source code, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of AMP. You shall refrain from permitting any third party to use your password or otherwise access the AMP Programs. AMP shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in this Agreement, the Merchant Agreement or any other terms and conditions incorporated by reference.
You agree that You will use the AMP Programs solely for your internal business purposes. You will not (a) sell, rent, lease, license, copy, or transfer the AMP Programs, (b) modify, create derivative works of, reconstruct, reverse engineer, or attempt to discover any source code of the underlying ideas, algorithms, programming, or interoperability interfaces of the AMP Programs, (c) or remove from any of the AMP Programs designations showing the confidential nature thereof or the proprietary rights of AMP. You are subject to the same export restrictions as end users, and you agree that the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law. AMP retains the right, in its sole discretion, to approve, modify or refuse any AMP related communications or proposed communications or messages to your customers or any AMP end users.
4. Pricing; Adjustments to Pricing; Authorization for all charges; Taxes.
AMP’s current payment terms and the fees it charges for the AMP Programs and related services are set forth in Your signed Merchant Agreement. AMP reserves the right to modify the fees charged and the method of billing or payment for the AMP Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such modifications of the fees will not be applicable until the beginning of the next annual period coinciding with the next upcoming 12 month anniversary of the date You originally executed the Merchant Agreement.
When you provide your payment information to AMP, you are providing AMP with an authorization to process any and all payments outlined in the Merchant Agreement and this Agreement, as well as any other payments owed to AMP for other products or services that are the subject of any validly executed agreement for goods or services that you have contracted for with AMP. You acknowledge that you shall be solely responsible for any sales, use, value-added taxes, and duties or taxes of any nature assessed in accordance with applicable law related to your purchase of or use of the AMP Programs and you agree to pay or immediately reimburse AMP if AMP in its sole discretion pays the same on your behalf.
5. Term; Termination; Survival.
The term of this Agreement and renewal periods that extend the term are described in the Merchant Agreement. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the filing of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. In addition, AMP may cancel and terminate the Application, the Website and related AMP Programs and services for convenience upon notice and subject only to a return of a ratable portion of the fees paid by You corresponding to that percentage of the term described in the Merchant Agreement and paid for by You but not yet fulfilled by AMP as of the date of AMP’s unilateral cancellation. Notwithstanding the foregoing, in addition to all other rights available to AMP at law or in equity, in the event that you have not paid all amounts due within 30 days of invoicing or such other date that has been explicitly contracted for in a signed writing describing when payment for services are to be paid, AMP, in its sole discretion, may suspend or terminate the services outlined in the Merchant Agreement and herein, or deny You access to use all or any portion of the AMP Programs.
Similarly, in addition to all other rights available to AMP at law or in equity, AMP, in its sole discretion may suspend or terminate the services outlined in the Merchant Agreement and herein, and deny you access to use all or any portion of the AMP Programs. Upon suspension or termination of services due to delinquency in payment or to Your breach of obligations under this Agreement or the Merchant Agreement, You shall remain responsible for amounts that remain outstanding as of the date of such termination, including early cancellation fees, if any. You agree to pay reasonable attorneys’ fees and court costs incurred by AMP to collect any unpaid amounts owed by you.
6. Confidential Information.
Any confidential information that a receiving party knows or has reason to know is confidential because it is marked “Confidential Information” will remain the sole property of the disclosing party. In addition, such Confidential Information of AMP includes without limitation data regarding Application usage and redemption rates, AMP performance projections, marketing data that is designated as confidential or proprietary, and other similar information provided by a party. For avoidance of doubt, all Customer Data shall be deemed Confidential Information of AMP. Your confidential information includes your written business or marketing plans when they are clearly marked as confidential, and other nonpublic, valuable commercial information made available to us in a fixed medium and marked confidential. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement.
The prohibitions contained in this Section will not apply to information already lawfully known to the receiving party prior to such disclosure by the disclosing party or information independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information. In addition, information that is generally known to the public lawfully obtained from any third party not in violation of this Agreement shall not be considered Confidential Information. A party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
7. Representations and Warranties; Disclaimer.
AMP warrants that AMP has the authority to enter into this Agreement. You represent and warrant to AMP that you have the authority to enter into this Agreement; that You and your agents will honor all discounts, deals, special offers, incentives, rewards and similar commercial inducements that you submit to the Application or the Website strictly in conformance with any of the conditions or restrictions that attend the same in the Application or on the Website; and that you will not publicly disparage AMP, the Application, or members of the general public using the AMP Programs. You agree to use the AMP Programs only for lawful purposes and not to violate or infringe the rights or intellectual property of AMP or any third party.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, AMP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT OF USING ANY AMP PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF AMP PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. AMP PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE AMP PROGRAMS ARE TO OPERATE.
8. Limitation of Liability.
AMP’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to AMP under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will AMP be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. This limitation will apply even if such damages were foreseeable and AMP has been advised or is aware of the possibility of such damages.
You will defend, indemnify, and hold AMP and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred or arising from your use of the AMP Programs or Services or the breach of this Agreement, or from any failure or alleged failure by You to honor deals, discounts, special offers, incentives or rewards submitted by you for inclusion on the Application or Websites or for any other misuse of AMP Programs.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be deemed delivered to You if sent by first class or certified US Mail to the contact person and address listed on the Merchant Agreement and will be deemed delivered to AMP by certified US Mail at the address provided on the Merchant Agreement.
11. No Third Party Beneficiaries.
The Agreement is solely for the benefit of You and your successors and permitted assigns, and for AMP, it’s equity holders, directors, officers, employees, agents, vendors (including without limitation the Apple Store) and AMP’s successors and assigns. It does not confer any rights or remedies on any other person or entity.
12. Amendment and Waiver.
These Terms and Conditions (this Agreement) may be modified in a manner not inconsistent with the Merchant Agreement from time to time in the sole discretion of AMP. Your continuing use of the AMP Programs 24 hours after the modified terms and conditions have been posted to the Website constitutes your acceptance of the modified and most current terms and conditions. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
You may not, without the prior written consent of AMP, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns. AMP may assign the Agreement upon notice by certified or first class US Mail, or by the delivery of an email including the words “Assignment Notice” in the subject line sent to the attention to Your authorized party.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
15. Force Majeure.
Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, failure of electrical service, HVAC systems, transmitters, providers, or acts of vandals, or hackers.
16. No Agency.
Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
17. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
18. Entire Agreement.
The Agreement will constitute the entire agreement between AMP and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.