AMP Text Marketing
American Marketing & Publishing, L.L.C. (“AMP”, “we”, “us”, or “our”) provides the CloseBy® Text Marketing service and associated services (the “Services”) through its SMS text messaging platform, websites, and other online hosted portals that support the Services (including, without limitation, the websites located at https://www.ampcorporatetest.com/solutions/closeby-text/ and www.closeby.com) (collectively, the “Platform”). Your access to and use of the Platform and Services is subject to these Terms of Service (these “Terms”).
PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION SET FORTH IN SECTION 17 BELOW (“ARBITRATION AND DISPUTE RESOLUTION AGREEMENT”), AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR USE OF THE PLATFORM AND SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THE ARBITRATION AND DISPUTE RESOLUTION AGREEMENT, AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE PLATFORM AND SERVICES. BY CLICKING “AGREE”, REGISTERING AN ACCOUNT WITH US, OR OTHERWISE ACCESSING OR USING THE PLATFORM AND SERVICES, YOU ARE AGREEING TO COMPLY WITH THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT USE THE PLATFORM OR SERVICES.
- THE SERVICES
The Services enable businesses, companies, civic organizations, units of government, nonprofit organizations, clubs, and similar senders (“Senders”) to create and send text marketing messages to groups of individual consumers and/or other members of the general public who have subscribed to receive such messages from the Sender(s) by opting in (“Subscribers”, and together with Senders, “Users”). Messages may consist of updates, news, announcements, invitations, offers, or other information. The Services permit Subscribers to choose what group text programs they want to be a part of and which Senders they want to receive messages from by facilitating the capture and storage of mobile phone numbers that have opted into the Sender’s list via text of the Sender’s keyword. The Service also permits Subscribers to opt out of a Sender’s text list by providing automatic removal of mobile phone numbers that have asked to be removed from the Sender’s list. In addition, the Services provide access to a gateway for distribution of text 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 vary according to the specific route.
- CHANGES TO THE SERVICES AND THESE TERMS
We expressly reserve the right to make any changes that we deem appropriate from time to time to the Platform and/or Services. We reserve the right at any time to modify or discontinue the Platform or Services (or any part thereof) without notice. To the maximum extent permitted under applicable law, we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Platform or Services.
In addition, we may change these Terms at any time, and all such changes are effective immediately upon notice, which we may give by any means, including, but not limited to, by sending a message to the email address or mobile phone number that we have on file for you or posting a revised version of these Terms or other notice on the Platform. You should view these Terms often to stay informed of changes that may affect you. Your use of the Platform and Services constitutes your continuing agreement to be bound by these Terms, as they are amended from time to time.
- TEXT MESSAGING
- As a Subscriber, you may opt in to subscribe to the text messages sent by a Sender by delivering a text message in the form of that Sender’s opt-in code or keyword from your mobile phone or mobile device to the Sender’s ten-digit long code number or the short code 36000, and by assenting in writing or by replying “YES” via text or email to an automatically generated confirmation message. The Sender that you have opted in to receive messages from will then be able to use the Platform to send you their messages at the times and with the frequency that they choose. Depending on the text marketing list(s) that you opt in to, you may receive as many as 30 text messages per month from Senders(s) for each keyword list that you opt in to receive messages from, or possibly even more messages if you explicitly agree to receive more.
- You may opt out of a text program and cease receiving unwelcome texts from a Sender at any time by replying to a received text message from the Sender’s ten-digit long code number or short code with one of the following words: “STOP”, “END”, “CANCEL”, or “UNSUBSCRIBE”. After you send the text message “STOP”, “END”, “CANCEL”, or “UNSUBSCRIBE” to the Sender’s ten-digit long code number or short code, we may send you a text message to confirm that you have been unsubscribed. After this, you will no longer receive text messages from that Sender.If you want to join that Sender’s list again, just subscribe as you did the first time and the Sender will confirm your desire to receive messages and upon you replying “yes” will start sending text messages to you again. For help, text “HELP” to the Sender’s ten-digit long code number or short code from which you received a message, or email us at textsupport@ampcorporate.com, or call us at (800) 807-6870 and follow the menu options provided. For clarity, opting out of an individual Sender’s text program does not constitute an opt-out from any other Sender’s text program to which you may have subscribed.
- Message and data rates may apply.Messages are sent from an automated system, and message frequency depends on your use of the Services. If you have any questions about your text plan or data plan, please contact your wireless provider. The Services are available for Subscribers on many but not all wireless telecommunication carriers serving the continental United States. Carriers are not liable for delayed or undelivered messages. Your consent to receive messages is not required for the purchase of goods or services.
- PRIVACY POLICY
Information that you provide to us or that we collect about you through your access to and use of the Platform or Services is subject to our Privacy Policy, which appears at www.closeby.com/privacypolicy the terms of which are hereby incorporated by reference into these Terms. We encourage you to read and become familiar with our Privacy Policy.
- AGE REQUIREMENTS
No one under the age of 18 may access or use the Platform or Services unless supervised by a parent or legal guardian who is bound by these Terms. By accessing or using, or attempting to access or use, the Platform or Services, you represent that you are at least 18 years of age and that you are able to enter into legally binding contracts, including, without limitation, these Terms (or, if you are under 18 years of age, that your parent or legal guardian has reviewed and agrees to be bound by these Terms on your behalf).
- CONTENT AND INTELLECTUAL PROPERTY
- The content and other materials displayed or made available on or through the Platform and Services, including, without limitation, text, information, data, content, articles, photos, images, graphics, and illustrations (collectively, the “Content”), are protected by copyright and/or other intellectual property laws. You agree to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Platform and Services, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including, but not limited to, our or any other User’s) rights.
- You understand and agree that we and/or our licensors own all right, title, and interest in and to the Platform, Services, and all Content. You acknowledge and agree that the Content may constitute valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws, and treaties of the United States and other countries, and that you acquire no ownership interest by accessing or using the Platform, Services, or Content. Such intellectual property and proprietary rights may include, but are not limited to, copyrights, trademarks and service marks, trade dress, and trade secrets, and all such rights are the property of AMP or its licensors and Content-providers.
- As a Sender, you are responsible for all Content you provide or submit, in any manner, to the Platform or Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you provide or submit it. You may not upload, distribute, or otherwise publish any Content that is invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, threatening, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful or otherwise objectionable, including, but not limited to, any Content that encourages conduct that would constitute a criminal offense or otherwise violate any applicable U.S. or foreign laws. By providing or submitting any Content to the Platform or Services, you hereby grant AMP a license to use, reproduce, modify, display, perform, distribute, and otherwise act with respect to such Content, in each case to enable us to operate and provide the Platform and Services. We have the right, but do not assume the obligation or responsibility, to monitor Content you provide or submit for compliance with applicable laws and these Terms. We have the right in our sole discretion and for any reason whatsoever to edit, refuse to store, remove, or disable access to any of your Content, including without limitation any Content that constitutes, or is likely to constitute, an infringement, misappropriation, or other violation of the rights of any third party.
- Without limiting any of the foregoing, if you are a Subscriber, you expressly acknowledge and agree that AMP shall not be responsible for any Content provided or otherwise made available by any Senders (including, without limitation, the content of any messages sent by or on behalf of any Senders). The Sender is the issuer of the message and is solely responsible for the information contained in its messages, as well as for all products, services, and offers it provides to a Subscriber via the Platform or Services (“Sender Offerings”) and for the fulfillment and/or redemption of the same. AMP merely maintains the Platform and Services to enable Senders to run their own messaging campaigns. AMP does not verify, validate, endorse offers, or guarantee that any offer sent by any Sender will be honored by the Sender. As a Subscriber, you agree that AMP expressly disclaims any warranty related to the accuracy of Content or information sent to you by Senders, the validity of any offers you receive from any Sender, or any Sender’s compliance with applicable law.
- By submitting suggestions or other feedback regarding the Platform or Services, you agree that we can use and share (with no obligation to do so) such feedback for any purpose without compensation to you. You agree to only provide content or information that does not violate the law nor anyone’s rights (including, without limitation, intellectual property rights).
- USER CONDUCT
You may access and use the Platform only in connection with your use of the Services and Content as permitted herein and only for your personal use (or, if accessing the Platform on behalf of your company, only for your company’s internal business use as permitted herein). Any other access to or use of the Platform constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws.
In accessing and using the Platform, Services, or any Content, you agree that you will comply with all applicable federal, state, and local laws, including, without limitation, data privacy laws, copyright and other intellectual property laws, cyber harassment, anti-spam laws, and other regulatory requirements. If you are a Sender, you agree that you will not send, or attempt to send, any messages using the Platform or Services to any Subscriber or other individual who has not affirmatively opted in to receive messages from you through the Platform or who has unsubscribed from your text list or otherwise opted out of receiving messages from you.
In addition, in accessing and using the Platform, Services, or any Content, you agree that you will NOT:
- Circumvent, disable, or otherwise interfere with any security-related features of the Platform or Services, including, without limitation, any features that enforce limitations on the use of the Platform, Services, or any Content;
- Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform, Services, or Content;
- Copy, modify, adapt, translate, or create derivative works based on the Platform, Services, or Content;
- Reproduce, redistribute, duplicate, sell, resell, lease, sublicense, time-share, or exploit for any commercial purpose any portion of the Platform, Services, or Content, except as permitted hereunder or otherwise expressly authorized by us in writing;
- Remove, alter, cover, or distort any copyright notice or trademark legend, author attribution, or other notice placed on or contained within the Platform, Services, or any Content;
- Access, use, or copy any portion of the Platform, Services, or Content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms;
- Use the Platform or Services to store or transmit viruses, worms, time bombs, Trojan horses, or other malicious code, or any unsolicited messages, “spam” or any other content or material in violation of applicable law;
- Attempt to interfere with the proper working of the Platform or Services or otherwise impairing, overburdening, or disabling the same; or
- Otherwise engage in any conduct that restricts or inhibits any other User from using or enjoying the Platform or Services.
You agree to contact us by phone at (815) 756-2840 or via e-mail at abuse@ampcorporate.com immediately in the event that you become aware that any other User is accessing or using the Platform or Services in violation of these Terms.
- SENDER ACCOUNTS
- In order to access and use the Services as a Sender, you must register and maintain an active Services account (“Account”). To set up an Account with us, you will be asked to provide certain information about yourself, such as your first and last name, company name, physical address, business characteristics, e-mail address, phone number, and payment card and billing information. You must also create a username and password for your Account and acknowledge and agree to these Terms and the terms of our Privacy Policy. You must provide complete and accurate information when setting up an Account. Once we validate your Account and Account information, we will provide you with a ten-digit long code number or a unique keyword on a shared short code that will identify you as the Sender of your text messages to your Subscribers.
- You are responsible for maintaining the confidentiality of your password and Account. You agree to: (a) use a strong password and keep your password confidential and not share it with anyone else; (b) not transfer any part of your Account to anyone else; and (c) immediately notify us of any unauthorized use of your username, password, or Account.
- You agree at all times to keep current and promptly update your Account information, including, but not limited to, your email address, phone number, and billing information, so that we can complete your transactions and contact you as necessary. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services and/or suspension or termination of your Account.
- You acknowledge and agree that we are authorized to act on instructions received through use of your username, password, and/or Account, and that we may, but are not obligated to, deny access or block any transaction made through use of your username, password, and/or Account without prior notice if we believe your username, password, and/or Account are being used by someone other than you, or for any other reason. You are solely responsible for all activity that occurs under your Account unless you close it or report misuse.
- FEES AND PAYMENT
- If you are a Sender, you agree to pay the full amount of the fees charged to you for the specific Services that you select. We may modify our fees effective prospectively, upon reasonable notice, to the extent allowed under applicable law. You expressly authorize AMP, or a third-party payment processor on our behalf, to charge the method of payment that you have provided to us (whether through your Account or otherwise) and to collect the full amount of the total fees for the Services you select, including any related charges and taxes. We may calculate taxes payable by you (if any) based on the billing information that you have provided to us at the time of purchase. All purchases are non-refundable and non-cancellable unless expressly indicated otherwise.
- You acknowledge and agree that we may use a third-party payment processor to charge you for Services purchased through your Account. By submitting your payment card information, you grant us the right to process and store your information, including with any such third-party payment processor, which we may change from time to time. You agree that we will not be responsible for any failures of the third-party payment processor to adequately protect such information. The processing of payments will be subject to the terms, conditions, and privacy policies of the payment processor in addition to these Terms. You acknowledge that we may change the third-party payment processor at any time, with or without notice to you, and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security.
- TERMINATION OF ACCESS
- We may, in our sole discretion, without liability, and without notice to you, immediately suspend, limit, and/or terminate your access to the Platform, the Services, and/or your Account for any reason, including, without limitation: (i) if we believe in our sole discretion that you have violated these Terms or any applicable laws or regulations; (ii) at the request of law enforcement, government agencies, or courts; (iii) if you ask us to close your Account; (iv) if we discontinue or materially modify the Platform or the Services (or any part thereof); or (v) if we believe in our sole discretion that your use or access to the Platform, the Services or your Account may create risk (including, but not limited to, legal risk) for us, our affiliates, contractual partners, or users. Upon any termination, you will lose the right to access and use the Platform and Services and, if you are a Sender, your Account will be closed.
- Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your access to or use of the Platform, Services, and/or your Account, shall survive including, but not limited to, the “Content and Intellectual Property”, “Fees and Payment”, “Indemnification”, “Disclaimers”, “Limitation of Liability”, “Arbitration and Dispute Resolution Agreement”, and “Miscellaneous” sections of these Terms.
- SENDER OFFERINGS AND THIRD-PARTY SERVICES
The Services may be made available or accessed in connection with third-party services and content that we do not control, including, without limitation, Sender Offerings and other third-party products, services, programs, and offerings. You acknowledge that different terms of use and privacy policies may apply to your use of Sender Offerings and other third-party services and content. We have no control over and do not endorse any Sender, Sender Offerings, or other third-party services or content, and in no event shall we be responsible or liable for any conduct of or interactions you may have with any Sender or other third-party provider (whether or not related to the Services) or for your use of any Sender Offerings or any other third-party products or services.
- SECURITY
AMP takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from the Platform. Nevertheless, we cannot and do not guarantee that any such transmissions are or will be totally secure. You are responsible for maintaining the confidentiality of any information about you, including, without limitation, any username and password used in connection with your use of the Platform. You agree to notify us immediately if you discover loss of or access to such information by another party not under your control or supervision.
- DEVICES AND NETWORK ACCESS
Your mobile phone must have text messaging capability to access and use the Services, and you are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply when using the Services from a mobile and/or wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and the Platform and any updates thereto. We do not guarantee that the Platform or Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Platform and Services may be subject to malfunctions and delays inherent in the use of the Internet and cellular and electronic communications.
- INDEMNIFICATION AND RELEASE
You agree to indemnify and hold harmless AMP and its officers, directors, owners, employees, contractors, and agents (collectively, the “Indemnified Parties”) from and against any and all claims, demands, losses, liabilities, damages, costs, and expenses (including attorneys’ fees and costs) arising out of or relating to: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) your violation of the rights of any other User or any third party (including, without limitation, violation of any privacy or intellectual property or other proprietary rights); (iv) your violation of any applicable law or regulation; (v) any data or information that you submit to or transmit using the Platform or Services; or (vi) any relationship, transaction, interaction, or dispute that you have with any other User.
Without limiting any of the foregoing, if you are a Subscriber, you acknowledge and agree that, as between you and AMP, you are solely responsible for your interactions with any Sender. To the maximum extent permitted under applicable law, you hereby release the Indemnified Parties from any and all claims or liability related to any Sender Offering, any action or inaction by a Sender, including, without limitation, any harm caused to you by any action or inaction of a Sender, any Sender’s failure to comply with applicable law, and/or any other product or service purchased or obtained by you from any Sender or other third party.
- DISCLAIMERS
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PLATFORM, SERVICES, AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY: (A) WARRANTIES THAT THE PLATFORM, SERVICES, AND/OR CONTENT WILL MEET YOUR REQUIREMENTS OR SATISFACTION; (B) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE PLATFORM, SERVICES, AND/OR CONTENT; (C) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (D) WARRANTIES FOR PRODUCTS OR SERVICES RECEIVED THROUGH OR ADVERTISED ON THE PLATFORM OR SERVICES; (E) WARRANTIES CONCERNING THE CAPACITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE INFORMATION OR RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, SERVICES, AND/OR ANY CONTENT; (F) WARRANTIES THAT YOUR USE OF THE PLATFORM, SERVICES, AND/OR ANY CONTENT WILL BE SECURE OR UNINTERRUPTED; AND (G) WARRANTIES THAT THE PLATFORM, SERVICES, AND/OR ANY CONTENT WILL BE ERROR-FREE OR THAT ERRORS IN THE PLATFORM, SERVICES, AND/OR ANY CONTENT WILL BE CORRECTED.
- ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PLATFORM OR SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE PLATFORM OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DISCONTINUATION OF USE OF THE PLATFORM AND SERVICES IS YOUR SOLE RIGHT AND REMEDY FOR ANY DISSATISFACTION WITH THE PLATFORM, SERVICES, OR ANY OF THE CONTENT.
- LIMITATION OF LIABILITY
- We may use third parties to provide certain products and services accessible through the Platform and Services. WE WILL NOT BE LIABLE TO YOU FOR THEIR ACTS OR OMISSIONS. IN ADDITION, IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT OR INDIRECT DAMAGES ARISING OUT OF RELATING TO ANY SENDER OFFERINGS, THE CONDUCT OF ANY OTHER USER, OR YOUR RELATIONSHIP, TRANSACTIONS, INTERACTIONS, OR DISPUTES THAT YOU MAY HAVE WITH ANY OTHER USER.
- TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OF ANY PARTY, WILL THE INDEMNIFIED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, DATA LOSS, OR OTHER INTANGIBLE LOSSES (EVEN IF THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM, ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR YOUR INABILITY TO USE, THE PLATFORM, SERVICES, OR ANY CONTENT UNDER ANY THEORY OF LIABILITY. YOUR SOLE REMEDY, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE PLATFORM, SERVICES, AND ANY CONTENT, SHALL IN ALL EVENTS BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU TO AMP FOR THE SERVICES IN THE PRECEDING THREE (3) MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY THE LAW.
- ARBITRATION AND DISPUTE RESOLUTION AGREEMENT
PLEASE READ THIS FOLLOWING CLAUSES CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO FILE A LAWSUIT IN COURT.
- You agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes“) will be settled by binding arbitration between you and AMP, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and AMP are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and AMP otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Arbitration and Dispute Resolution Agreement section will be deemed void. Except as provided in the preceding sentence, this Arbitration and Dispute Resolution Agreement section will survive any termination of these Terms.
- The arbitration will be administered by the Judicial Arbitration & Mediation Services (“JAMS“) in accordance with the Arbitration Rules and Procedures then in effect (the “JAMS Rules”), except as modified by this Arbitration and Dispute Resolution Agreement section. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
- A party who desires to initiate arbitration must provide the other party with a written demand for arbitration. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Illinois and will be selected by the parties from the JAMS’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS.
- Unless you and AMP otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and AMP submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to the JAMS Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. AMP will not seek, and hereby waives all rights AMP may have under applicable law to recover, attorneys’ fees and expenses if AMP prevails in arbitration.
- Your responsibility to pay any JAMS filing, administrative, and arbitrator fees will be solely as set forth in the JAMS Rules. However, if your claim for damages does not exceed $75,000, AMP will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
- MISCELLANEOUS
- These Terms and the Privacy Policy (as each may be revised and amended from time to time according to their respective terms) collectively constitute the entire agreement with respect to your access to and use of the Platform, Services, and Content.
- Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.
- These Terms shall be construed in accordance with the laws of the State of Illinois without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of Illinois. If for any reason a Dispute proceeds in court, you and AMP: (i) agree that any such Dispute may only be instituted in a state or federal court located in DeKalb County, Illinois and waive any defenses or objections based on the jurisdiction, venue, or convenience of this exclusive venue; (ii) irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (iii) AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
- These Terms do not confer any rights, remedies, or benefits upon any person other than AMP and you.
- We may assign our rights and obligations under these Terms, in whole or in part, at any time to any third party without notice. You may not assign these Terms or any rights or obligations hereunder without our prior written consent.
- Our waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.
- If any provision of these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions of these Terms will not be affected, and the invalid, illegal, or unenforceable provision will be replaced by such valid and enforceable provision as comes closest to the intention underlying the invalid or enforceable provision.
- Possible evidence of use of the Platform or Services for illegal purposes will be provided to law enforcement authorities.
- Discontinuation of use of the Platform and Services is your sole right and remedy for any dissatisfaction with the Platform, Services, or any of the Content.
- QUESTIONS AND REPORTING ABUSE
Please contact us with any questions regarding the Platform, Services, or these Terms at textsupport@ampcorporate.com or:
American Marketing & Publishing, L.L.C.
915 East Lincoln Hwy.
DeKalb, IL 60115
You agree to immediately contact us by phone at (815) 756-2840 or via e-mail at abuse@ampcorporate.com in the event that you receive offensive messages or materials from a Sender or if you believe that you have received or are receiving unsolicited messages from a Sender’s ten-digit long code number or from short code 36000 which you either have not subscribed to via opt-in or have already unsubscribed from, or which you otherwise believe are not intended to be sent to you.
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.ampcorporatetest.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.
By making use of or submitting any content (“Submissions” or “Submitted Information”) to the Application or Websites, You (a) accept this Agreement and agree to be bound by its terms and conditions. You warrant that You are at least 13 years old and have the authority to enter into this Agreement on your own behalf or by having a parent or legal guardian agree on your behalf to the terms set forth herein. You furthermore agree that this Agreement is binding and enforceable against You and that to the extent You are accepting this Agreement on behalf of an entity, You warrant that You have authority to give consent on behalf of that entity to the terms set forth in this agreement. You agree that You have read, understand, and agree to AMP’s Privacy Policy (“Privacy Policy”), the terms of which are posted at the Websites or linked to through the Application and are incorporated herein by reference. You acknowledge and agree that AMP may amend this Agreement from time to time, each of which amendments shall be deemed to be effective 2 days after posting the updated Agreement at the Website or within the Application. You agree, as a condition of using the Application or the Website to check the Website and/or the Application and this Agreement regularly to ensure You maintain a current awareness and understanding of the terms and conditions set forth herein.
1. Purpose
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.
2. License.
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.
4. Restrictions.
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.
6. Termination.
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.
8. Disclaimers.
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.
9. Confidentiality.
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
Email: support@www.ampcorporatetest.com
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
1. General
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.
3. Restrictions.
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.
9. Indemnification.
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.
10. Notice.
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.
13. Assignment.
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.
14. Severability.
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.
