Terms and Conditions (“Terms”)

Last updated: December 31, 2018

xAmplify Terms of Service

Effective: December 31, 2018

Thanks for using xAmplify. These Terms of Service (“Terms”) govern your access and use of our websites, mobile device apps, and any other services we provide (collectively the “Service”). Please read the following information carefully. By clicking Agree or using the Service, you agree to be bound by these Terms and our Privacy Policy (defined below). “We” in these Terms refers to xAmplify, Inc. and its subsidiary companies.

The service is designed to help businesses (“Vendors”) manage and distribute their digital content. Vendors set up accounts on the Service and upload their digital content (“Content”), where it can be shared with Vendors’ marketing partners, Vendors’ internal sales force, and the like with the intent of dissemination and/or redistribution. 

If you are using the Service on behalf of an organization, you are agreeing to these Terms on behalf of that organization and promising to us that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization). However, if your account has been provided to you by an organization that has a separate contract in effect with us, the terms of that contract will govern your use of the Service. 

CHANGES TO THESE TERMS

We may update these Terms from time to time. Prior to any changes becoming effective we will update these Terms on our website and notify you of any changes by email or notices provided through the Service, or any other method reasonably designed to provide notice to users. Unless otherwise specified, changes to these Terms will be effective when they are posted on our website.

REGISTRATION

You must register in order to use the Service. When registering with us you must: (a) provide true, current and complete information about yourself on the registration form and (b) maintain such information so it continues to be true, current and complete. You may not share your account with anyone else. If you become aware of any unauthorized use of the Service or your account, or have any questions about your account please contact us as described below. 

You get to choose what email address(es) you register for an account. Please be aware, however, that if the domain of the email address associated with your account is owned or controlled by an organization (such as your work or school) and that organization establishes a direct relationship with us and wishes to add your account to such relationship, then you may be rolled into that organization’s account after notification. Following that notice, if you choose not to change the email address associated with your account, your account will be controlled by the organization.

If an organization provided you with your account (e.g., an employer or school), you understand that this organization has rights to your account and may: (a) manage your account (including suspending or canceling); (b) reset your password; (c) view your usage and profile data, including how and when your account is used; and (d) manage the Content in your account.

PROVISION OF THE SERVICE

If you subscribe to a paid version of the Service, you agree to pay the fees quoted to you when you purchase that Service. Unless otherwise stated, all fees are due in US Dollars 30 days from the date of our invoice and all fees are non-cancelable and non-refundable. If payment is not received by the due date, we may suspend your access to Service until overdue amounts are paid in full. You are responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on our net income. If you are required to pay any such taxes, you shall pay such taxes with no reduction or offset in the amounts payable to us hereunder. If an applicable tax authority requires us to pay any taxes that should have been payable by you, we will advise you in writing, and you will promptly reimburse us for the amounts paid. 

We can make changes, updates or enhancements to the Service at any time. We may also add or remove functionalities or features at any time.

We reserve the right to suspend or terminate your access to the Service in our reasonable discretion if you have breached this Agreement or we believe suspension is required to protect the Service or other users, or to comply with law. You understand that if your account is suspended or terminated, you may no longer have access to the Content stored in the Service.

FORCE MAJEURE

Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.

CONTENT

We don’t control, verify, endorse or claim ownership rights in Content that you or others upload to the Service. You are responsible for: (a) all Content you place in your account(s) and share through the Service and (b) making sure that you have all the rights you need to the Content.

You hereby grant us the right to transmit, process, use and disclose your Content: (i) as necessary for us to provide the Service, (ii) as otherwise permitted by these Terms, (iii) as otherwise required by law, regulation or order, or (iv) to respond to an emergency.

The Service is provided from the United States. By using and accessing the Service, you understand and agree to the storage of Content and any other personal information in the United States. You understand that you (or other people that you collaborate with) can access the Service (including Content) from outside of the United States (subject to applicable law) and that nothing prohibits the processing of other information outside of the United States. 

ACCEPTABLE USE POLICY

You will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover source code underlying the Service; (b) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by us in writing or authorized within the Service); (c) frame, mirror or use the Service or use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels from the Service. 

You will not, and will not permit others to:

  1. Post, upload, forward or otherwise transmit any file or software code that contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of the Service; 

 

  1. Attempt to access any other xAmplify systems that are not part of the Service;

 

  1. Use the Service to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:

 

    1. Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;

 

    1. Content or data that would impersonate someone else or falsely represent an individual’s identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);

 

    1. Any information, software or content you do not have the legal right to process or transmit.

PERSONAL DATA USE; SPAM COMPLIANCE 

When using the Service, you agree to comply with all laws, regulations, and rules that may be applicable in the jurisdictions from which, and to which, you may send communications using the Service, including without limitation the US CAN-SPAM Act of 2003 and Canada’s Anti-Spam Legislation, the EU-US Privacy Shield Principles, EU Directive 2002/58/EC (the ePrivacy Directive), the General Data Protection Regulation 2016/679 (together “European Data Privacy Law”), and comparable laws in other applicable jurisdictions.

If you upload Personal Data of residents of a country in the EEA or Switzerland, you will: (a) comply with European Data Privacy Law with respect to use, storage, transfer and other processing of such Personal Data, and (b) notify us if you determine that you can no longer comply with your obligations under European Data Privacy Law with respect to such Personal Data. If we notify you that an individual has opted-out of marketing communications from you, you must have a mechanism in place to effectuate that opt-out.

You represent, warrant and covenant to use that you: (i) have the right to provide such Personal Data to xAmplify for the Service requested; (i) has independently obtained email recipients’ express consent to receive marketing communications to the extent required by law, and (iii) will provide an opt out or unsubscribe mechanism in all communications sent through the Service, and will promptly comply with such requests. 

OWNERSHIP RIGHTS  

The Service is the proprietary intellectual property of xAmplify and our suppliers, protected by copyright and other intellectual property laws. Except for the rights granted herein, we and our suppliers retain all right, title and interest, including all intellectual property rights, in the Service (and any derivative works of or improvements to any of the foregoing created by or for us) and the Service documentation. Even if the terms “purchase” and “sale” are used, you do not receive ownership rights in the Service and have only those use rights in this Agreement. We retain all rights not explicitly granted herein.

You retain all rights to Content you upload. We disclaim all ownership and other rights as to such Content, except any limited rights granted by you to provide the Service.

CONFIDENTIAL INFORMATION

If either of us provides any information to the other that is labeled “confidential” (or something similar), or that a reasonable person should understand to be confidential, such information is to be treated as confidential information.

We both agree that we will: (a) treat each other’s information with the same degree of care that we treat our own confidential information; (b) use each other’s confidential information only in connection with these Terms and the Service; (c) only share the information with others who have a need to know and who have agreed in writing to treat it as confidential (as we’ve outlined in this section); and (d) not share the information with any third party except as allowed in these Terms or through the Service. Of course, confidential information will always remain the property of its owner.

Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.

NO WARRANTY OR CONDITIONS 

TO THE EXTENT NOT PROHIBITED BY LAW, WE: (A) PROVIDE THE SERVICE “AS IS” AND “AS AVAILABLE”, (B) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (E.G. WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT), AND (C) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE YOU MUST ADVISE XAMPLIFY. IF YOUR CONCERN CANNOT BE RESOLVED USING REASONABLE MEASURES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

We may make available to you optional third-party applications, services or products, for use in connection with the Service. We make no warranties of any kind and assume no liability of any kind for your use of such third-party products. If you have any questions or concerns regarding third-party products, then please contact the applicable provider.

INDEMNIFICATION

To the extent not prohibited by law, you will defend us against any cost, liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorneys’ fees and disbursements) arising out of claims made or brought by anyone other than us (including our affiliates, successors, assigns, members, shareholders, officers, directors and agents) alleging misappropriation, misuse or breach of applicable law related to Content. We will reasonably notify you of any such claim that is subject to your indemnification obligation.

LIMITATION OF LIABILITY    

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES, OFFICERS, RESELLERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE FEES PAID OR PAYABLE BY YOU TO US DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM; AND (B) $100 USD. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

DISPUTE RESOLUTION AND GOVERNING LAW

You must comply with all domestic and international export laws and regulations that apply to your use of the Service, such as software. These laws include restrictions on destinations, end users, and end use.

You agree that the Terms, and your relationship with us will be governed by the laws of the State of California, U.S.A. regardless of conflict of laws principles. We both agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to these Terms. We both agree that all of these claims can only be litigated in the federal or state courts in Alameda County, California, USA and we each agree to personal jurisdiction in those courts.

The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class, consolidated or representative proceeding. All disputes will be resolved only on an individual basis and not in a class, consolidated or representative action.

Notwithstanding the foregoing, nothing in this section will preclude the right and ability of either party to file and maintain at any time (a) an individual action in small claims court and (b) an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto.

GENERAL TERMS

These Terms are the complete and exclusive statement of the understanding between you and us, and supersede all previous written and oral agreements relating to the subject matter hereof. If any of these Terms are adjudicated invalid or unenforceable, the remaining provisions will remain in effect and these Terms will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by you and us.

We and you are not legal partners or agents; instead, our relationship is that of independent contractors.  These Terms are solely for your and our benefit. They are not for the benefit of any other person, except for permitted successors.

The failure of either of us to insist upon or enforce strict performance of any of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

We may assign, transfer, or otherwise dispose our rights and obligations under these Terms in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service, unless we allow you to do so in writing.

Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control. 

If you are a U.S. government entity or if these Terms otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government user as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.