ALL INDIVIDUAL USERS REGISTERING FOR OR USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY: (A) ACKNOWLEDGE AND AGREE THAT SUCH COMPANY OR OTHER LEGAL ENTITY WILL HAVE FULL ACCESS TO AND AUTHORITY OVER INFORMATION CONTAINED IN YOUR USER ACCOUNT (INCLUDING AND NOT LIMITED TO: ORDER HISTORY, CHANGE LOGS, ADDRESSES, PAYMENT DETAILS, AND OTHER INFORMATION ASSOCIATED WITH YOUR ACCOUNT) AND (B) HEREBY AGREE TO RELEASE AMAZON AD SERVER (FORMERLY KNOWN AS SIZMEK AD SERVER), FROM ANY AND ALL LIABILITY FOR ANY OF YOUR ACCOUNT INFORMATION PROVIDED TO OR USED BY YOUR ORGANIZATION, THE ADMINISTRATOR(S) OF YOUR ORGANIZATION, AND ANY OTHER USERS ASSOCIATED WITH YOUR ORGANIZATION.
A. “Ad” or “Advertisement” means a commercial notice, announcement or message made in a public medium to an advertiser’s customers or prospective customers to promote a person, entity, brand, product, service, or event.
B. “Additional Terms and Conditions” means those additional product/service terms, policies, and other conditions specified by Amazon Ad Server from time to time for certain Services, including as may be attached to an Order or posted on the System or another Amazon Ad Server site.
C. “Ad Technologies” means, collectively, digital advertising technologies that include advertising tags (such as pixels, clear GIFs and similar methods), cookies, device identifiers or other identifiers and similar technologies.
D. “Affiliate” of a party means an entity that, directly or indirectly through one or more entities, controls, is controlled by or is under common control with that party, where “control” means the possession, direct or indirect, of the power to direct the management and policies of such party.
F. “Customer”, “you” and “your” means the organization(s) identified as such in the Agreement or the applicable Order.
G. “Customer Data” means, other than Non-Proprietary Data, all campaign data collected by Amazon Ad Server hereunder on behalf of or received from Customer, its advertisers or the agencies representing Customer, including any data, information, or materials that Customer, its Affiliates, or any third-party vendors or partners on Customer’s behalf may disclose or submit to Amazon Ad Server and any and all Customer Reports; provided, Customer Data does not include Non-Proprietary Data or other data or information that Amazon Ad Server receives outside of its performance of the Services for Customer, even if such information is identical to a portion of data comprising Customer Data. References to Customer Data include Customer Personal Data (as defined in Section 6.2 (Customer Personal Data)) unless Customer Personal Data is specifically excluded.
H. “Customer Material(s)” means any Advertisement, creative, content, data, information, Customer or third-party Ad Technology, or material of any kind created, managed, or delivered by or on behalf of Customer or its Third-Party Users using the Services, and includes, without limitation, any creative works, content, data, information, media plan or material of any kind referenced by or accessed via an Advertisement, such as by a URL or other method.
I. “Customer Report” means any report or summary prepared for Customer in connection with the Services containing information—which may include IP addresses and pseudonymous data with cookie ID, advertising device ID, or other persistent identifier(s)—about Ad delivery or user activity or engagement with Advertisements or Site Content.
J. “DPA” (formerly also referred to as the “GDPR Agreement”) means (as applicable) the Data Processing Addendum or a separately executed data processing agreement between Amazon Ad Server and Customer or its Affiliates that pertains to the Services.
K. “Fees” means the fees or rates for the use of the Services as set forth in the Agreement or applicable Order.
L. “GDPR” means the European General Data Protection Regulation (Regulation (EU) 2016/679) and any implementation or successor thereof. Any reference in the Agreement to the applicable law of the European Economic Area, including the GDPR, that is directly applicable or directly effective in the United Kingdom at any time is a reference to such law as it applies in England and Wales from time to time including as retained, amended, extended, re-enacted or otherwise given effect on or after 11pm on the 31 of January 2020.
M. “Intellectual Property Rights” means all rights including future rights in inventions, patents, designs, copyrights, trademarks, service marks, databases and topography rights (whether or not any of those is registered and including applications for registration of the foregoing, renewals, extensions, continuations, divisions and reissues) together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any others which may subsist anywhere in the world.
N. “Laws” means any applicable federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any jurisdiction.
O. “LGPD” means the Brazilian Federal Law no. 13,709/2018 (Brazilian General Data Protection Law) and its regulations.
P. “MSA” means any Main or Master Services Agreement or similar contract entered into between you and Amazon Ad Server for the Services, including all schedules and attachments thereto, as amended from time to time.
Q. “Non-Proprietary Data” means any non-proprietary and anonymous or pseudonymous data that may be generated or obtained by Amazon Ad Server in connection with the Services, including data included in a HTTP(S) header or HTTP(S) response, such as user agent strings and time stamps; IP addresses; URLs not provided by or on behalf of Customer; and persistent and non-persistent identifiers, such as session IDs, cookie IDs, cache-based IDs, mobile advertising identifiers and device IDs.
R. “Order” means an order for Services that is signed by Customer or submitted to Amazon Ad Server by means of a Amazon Ad Server online click-through or similar tool and that is accepted by Amazon Ad Server, which may include, without limitation, an order, statement of work, schedule, attachment, order details provided in a user interface, or insertion order, as amended from time to time.
S. “Privacy Rules” means, collectively: (i) any applicable Laws, including privacy and data protection Laws; (ii) the following digital advertising industry rules to the extent applicable to the conduct of a party’s business in the territories where such rules apply: (a) all United States Federal Trade Commission ("FTC") rules and guidelines regarding the collection, use and/or disclosure of information from or about a unique user of a website, application and/or mobile website and/or the device associated with such user; (b) Children’s Online Privacy Protection Act and its rules and regulations; (c) enacted legislation and regulations under (1) the California Consumer Privacy Act, California Civil Code Section 1798.100 et seq., as amended, including by the California Privacy Rights Act of 2020, and its regulations ("CCPA"), (2) the Virginia Consumer Data Protection Act ("VCDPA"), as amended, and any rules and regulations promulgated thereunder, (3) the Colorado Privacy Act, and any rules and regulations promulgated thereunder, (4) the Connecticut Data Privacy Act and any rules and regulations promulgated thereunder, and (5) the Utah Consumer Privacy Act and any rules and regulations promulgated thereunder (collectively, the "U.S. State Privacy Laws"); (d) the GDPR and all enacting legislation of European Union member states of directives of the European Parliament and Council related to the processing of personal data or the storage of or access to information stored on an individual person’s computing equipment; (e) the LGPD and its regulations; and (f) the advertising industry self-regulatory codes and principles promulgated by the Digital Advertising Alliance ("DAA"), the European Interactive Digital Advertising Alliance ("EDAA"), and any other self-regulatory or similar authority of any jurisdiction applicable to Customer, as such rules, guidelines, codes or set of principles may be amended from time to time by the promulgating entity or any successor entity; and (iii) any amendments, modifications, extensions, supplements or replacements of or to any of the foregoing.
T. “Services” means, collectively, the products and services specified in the MSA or the applicable Order, which may include, without limitation: (i) provision of digital advertising solutions (e.g., ad serving and measurement, dynamic creative optimization) in or through the System enabling the creation, delivery, management, measurement, and analysis of digital advertising; (ii) professional, creative, and similar services related thereto; and (iii) other data, products and services that Amazon Ad Server may make available to Customer in connection with the foregoing from time to time.
U. “Site” means one or more websites, applications, or other digital properties on which Advertisements are displayed or measured or Ad Technologies are used pursuant to this Agreement.
V. “Site Content” means all materials, data, images, texts, sounds, information, or other content contained in or around and/or linked to any Site.
W. “Amazon Ad Server”, “we” and “us” means the Amazon Ad Server Contracting Entity as specified in Section 15.4 (Contracting Entities) and any of its applicable Affiliates.
X. “System” means the Amazon Ad Server product accessible via the Internet for the provision and use of the Services, including any website through which Amazon Ad Server provides access to such product and all software (including source and object code), updates, enhancements, documentation or other materials (excluding Customer Materials and Third- Party Offerings) in or related to the product that Amazon Ad Server makes available in the course of providing the Services.
Y. “Term” has the meaning given to such term in the MSA or the applicable Order, subject to the termination rights set forth herein. If no term is specified in the MSA or the Order or otherwise in Section 12 (Term and Termination), the Agreement continues until terminated by either party upon 30 days’ written notice to the other.
Z. “Territory of Sales” means Customer’s territory of sales, as determined by Amazon Ad Server.
AA. “Third-Party Offerings” means services, integrations, or content made available by any third party (and selected and/or engaged by you) through the System or otherwise in conjunction with the Services.
BB. “Third-Party User” means any third-party contractor, client, advertiser, agency, publisher, or API Integrator, as applicable, that accesses and uses the Services through the Customer’s Account (as defined in Section 3.1 (Account Access)).
2.1 Ordering. Customer may request Services by submitting an Order for the selected Services to Amazon Ad Server. Amazon Ad Server may reject any Order in its sole discretion. Any signature or acceptance method approved by Amazon Ad Server shall be binding upon Customer, including electronic signatures or other indications of assent to the terms, such as assent given through the use of an online ordering or campaign management process.
2.2 Terms Overview. Subject to payment by Customer to Amazon Ad Server of the Fees and Customer’s compliance with other terms of the Agreement, Amazon Ad Server will make the Services available to Customer (and its Third-Party Users, as applicable) in accordance with the terms of this Agreement. Notwithstanding the foregoing, Customer acknowledges and agrees that certain Services, including, without limitation, professional or creative services, may be subject to Additional Terms and Conditions. Third-Party Offerings may be subject to the third-party providers’ terms and licenses, and as between Amazon Ad Server and Customer, the Customer is solely responsible for compliance with such terms for any Third-Party Offerings. Without derogating from the foregoing, if any such Third-Party Offering requires Amazon Ad Server to enter into an agreement or other terms with the third-party provider on the Customer’s behalf, Customer authorizes Amazon Ad Server to do so.
3. Account Creation and Access.
3.1 Account Access. Customer may access certain Services through an administrative website or, subject to Section 3.2 (API Use), and to the extent applicable, an application programming interface (“API”) provided by Amazon Ad Server. For access to the System, Amazon Ad Server will enable Customer to set up one or more logins and passwords for access to Customer’s account (“Customer’s Account”) and corresponding administrative controls, where applicable, for access and use by authorized personnel of Customer and/or its Third-Party Users (“Customer’s Representatives”). In order to use the System, Customer will, and will ensure that Customer’s Representatives will, provide Amazon Ad Server with accurate, truthful, and complete registration information and agree to, and comply with, the terms of this Agreement and any other Additional Terms and Conditions that Amazon Ad Server may otherwise require. Customer will ensure that each of Customer’s Representatives that is provided access to the System keeps its registration information accurate and up-to- date and does not share its login information with any third party, and Customer agrees that any failure by any Customer Representative to do so will constitute a breach of this Agreement by Customer, which may result in (in addition to any other available remedies) termination of Customer’s Account. Customer authorizes Amazon Ad Server to verify Customer’s registration information from time to time, including by obtaining credit reports and references about Customer. Customer will immediately notify Amazon Ad Server in writing of any change in authorization, any unauthorized use of any Customer’s Account, or any other account-related security issue of which it becomes aware. Upon termination of this Agreement for any reason, Amazon Ad Server will have the right to disable and delete each Customer Representative’s access to Customer’s Account immediately and to delete all Customer Data thirty (30) days after termination or expiration of this Agreement.
3.2 API Use. If Customer accesses the System or Services via API (which access Amazon Ad Server may grant or deny in its sole discretion), Customer’s (and any API Integrator’s) use of the API is deemed to be a use of the System and is subject to the terms of this Agreement and any Additional Terms and Conditions regarding API use. If Customer requests Amazon Ad Server to enable API access under the Customer’s Account for a third party (each, a “API Integrator”) (which request Amazon Ad Server may grant or deny in its sole discretion), (i) Amazon Ad Server will provide access to the API in accordance with Customer’s written instructions and any additional terms as set forth in the applicable Order; (ii) Customer acknowledges and agrees that Amazon Ad Server has no responsibility or liability for Customer’s or any API Integrator’s performance or obligations under any agreement that may exist between or among Customer, any of Customer’s clients, and any API Integrator; and (iii) Customer is responsible for obtaining any API Integrator’s written agreement to any Additional Terms and Conditions required for access to the API. Amazon Ad Server may at any time suspend or terminate API access without liability to Customer or any API Integrator, or any of their respective Affiliates or clients.
3.3 Customer Affiliates. Customer Affiliates may accede to the Customer’s Agreement for the purchase of Services, subject in each case to Amazon Ad Server’s written consent (which Amazon Ad Server may grant, deny, or withdraw in its sole discretion at any time, and which may also be specified in the applicable MSA) and successful completion of Amazon Ad Server’s registration process by each such Customer Affiliate. Customer shall be (a) responsible for informing any Customer Affiliate authorized to purchase Services under the Customer’s Agreement of the rates applicable to such Customer Affiliate in accordance with such Agreement, and (b) jointly and severally liable to Amazon Ad Server for the failure of any such Customer Affiliate to pay any fees due under, or otherwise comply with, the Agreement. Each Customer Affiliate must be an Affiliate of Customer at all times when such Customer Affiliate accesses or uses the Services pursuant to the Customer’s Agreement. If a Customer Affiliate ceases to be an Affiliate of Customer, such former Customer Affiliate will promptly notify Amazon Ad Server. Upon ceasing to be an Affiliate of Customer, if such former Customer Affiliate continues to access and use the Services, Amazon Ad Server reserves the right to terminate the Services or to continue providing Services to such Customer Affiliate pursuant to Amazon Ad Server’s then-applicable standard terms.
4. Limited Rights; Ownership.
4.1 Limited License. Amazon Ad Server hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-transferable (except as expressly provided in this Agreement), limited, and revocable right for Customer to access and use the System in accordance with this Agreement solely during the Term and for the sole purpose of using the Services for its internal business purposes. Except as expressly permitted by this Agreement, Customer may not, directly or indirectly or by itself or through any other person or entity, use, rent, lease, sell, transfer (by sublicense, assignment, operation of law, change in control or otherwise), time share, modify, reproduce, copy, make derivative works from, distribute, publish, use to provide service bureau services, or publicly display the System. Moreover, Customer will not (and will ensure that Customer’s Representatives do not) reverse engineer, decompile, or otherwise attempt to discover the source code for the System or any of the Services.
4.2 Amazon Ad Server Intellectual Property. Except as expressly provided in the Agreement, Amazon Ad Server has and will have the sole and exclusive ownership of all right, title and interest in and to the System and all applicable Services and all Intellectual Property Rights in the System and applicable Services, any enhancements thereto, any documentation or other materials regarding the use thereof and related thereto, any machine learning and the results and outputs of such machine learning that occur prior to, during, or after Customer’s use of the Services, and any Amazon Ad Server proprietary data provided to Customer by Amazon Ad Server in whatever form or media (collectively, “Amazon Ad Server Intellectual Property”). Neither this Agreement, nor anything contained herein, will be construed as a sale of the System or any proprietary right or title therein or thereto, or of any other Amazon Ad Server Intellectual Property. All rights not expressly assigned or licensed in this Agreement are reserved by Amazon Ad Server in full.
4.3 Deliverables. If any deliverable to Customer produced by Amazon Ad Server’s Services includes Amazon Ad Server Intellectual Property, then Amazon Ad Server will remain the sole and exclusive owner of such included Amazon Ad Server Intellectual Property, and Amazon Ad Server grants Customer only a non-exclusive, revocable, worldwide, royalty-free license to use such Amazon Ad Server Intellectual Property, solely as incorporated into or embedded in such deliverables and not separately therefrom, and solely for use in connection with the System. Additionally, any use of a deliverable containing any trademark of Amazon Ad Server or its Affiliates will be subject to Amazon Ad Server’s prior written approval and is subject to Amazon Ad Server’s Trademark Usage Guidelines (provided separately). Subject to the preceding sentence, Customer will own all right, title and interest in and to such deliverables, including the Intellectual Property Rights therein.
4.4 Customer Materials. As between Amazon Ad Server and Customer, Customer has and will have the sole and exclusive ownership of all right, title and interest in and to the Customer Materials, Customer Data, and the Site Content where applicable, and all Intellectual Property Rights in the same, except for any Amazon Ad Server Intellectual Property embedded therein or as otherwise provided in the Agreement. Customer grants Amazon Ad Server a non-exclusive license to use, copy, modify, process, publicly display, and distribute Customer Materials and Customer Data for the purpose of providing the Services pursuant to this Agreement.
4.5 Statistics. Customer agrees that Amazon Ad Server may use and disclose certain data, including Customer Data and Non-Proprietary Data, derived from Customer’s use of the System and Services to create aggregated data and statistics about the Services and its features, which Amazon Ad Server may provide to others, including Amazon Ad Server’s customers, potential customers and the general public, provided that such aggregated data and statistics do not contain any Customer Personal Data or identify any living individual, Customer, Customer’s clients, or any of their respective products or brands.
4.6 Publicity. Customer grants Amazon Ad Server a non-exclusive license to use its (and its Third-Party Users’, as applicable) name, published Ads, and trademarks in marketing materials, including without limitation the customer ad showcase area of the System and customer lists. Customer may elect to provide suggestions, ideas, or other feedback (“Suggestions”) to Amazon Ad Server in connection with the Services or the System (including any related technology or content). Amazon Ad Server will be free to use, disclose, reproduce, modify, sublicense, transfer, distribute and exploit Suggestions in any manner and without compensating Customer.
5. Confidential Information. “Confidential Information” means all nonpublic information obtained pursuant to or in connection with this Agreement or the Services by a party from or on behalf of the other party that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, (i) nonpublic information relating to the disclosing party’s technology, products, services, processes, data, customers, business plans and methods, finances and other business affairs, (ii) third-party information that the disclosing party is obligated to keep confidential, and (iii) the nature, content and existence of the parties’ relationship, including the terms of the Agreement and any applicable rates. Confidential Information does not include any information that (a) is or becomes generally known or available to the public without breach of the Agreement (provided, however, information that is rumored or reported does not become public based only on such rumors or reports), (b) was known by the receiving party prior to its receipt from the disclosing party, (c) is disclosed to the receiving party from any third party, except where the receiving party knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act, or (d) is independently developed by the receiving party without use of any Confidential Information. Except as provided in the Agreement, the receiving party will not disclose Confidential Information without the disclosing party’s consent. The receiving party will take reasonable measures to avoid disclosure, dissemination, or unauthorized use of Confidential Information. The receiving party may disclose Confidential Information as required to comply with orders of governmental entities that have jurisdiction over it or as otherwise required by Law. The disclosing party acknowledges that the receiving party may now have, or in the future may develop or receive, information that is the same as, or similar to, Confidential Information without having breached this Agreement. Nothing in this Section (x) prevents Amazon Ad Server from using, for any purpose and without compensating the disclosing party, information retained in the memory of Amazon Ad Server’s personnel who have had access to Confidential Information or (y) obligates Amazon Ad Server to restrict the scope of employment of its personnel; provided, however, that this Section does not create a license under any copyright or patent of the disclosing party.
6.Data Protection and Privacy.
6.1 Compliance. Amazon Ad Server and Customer (for itself and for its Third-Party Users) each represents and warrants that it will at all times comply in full with the requirements of all applicable Laws, including (in Customer’s case) notifying Amazon Ad Server of requests to opt-out, delete, correct, and access Personal Data by users whose Personal Data (as defined below) is provided to Amazon Ad Server pursuant to this Agreement. Customer will not engage in any behavior that renders or is likely to render Amazon Ad Server or its Affiliates to be in breach of any applicable Laws or Privacy Rules.
6.2 Customer Personal Data. To the extent that Amazon Ad Server processes personal data about any natural person (“Personal Data”, which may also be referred to as “personally identifiable information,” “personal information,” “personally referable information,” or similar term under the Laws of some jurisdictions) supplied or collected by or on behalf of Customer (“Customer Personal Data”) in the course of providing the Services, it will do so as a data processor or service provider acting on behalf of Customer (as data controller, or as an agent or processor acting on behalf of a third- party data controller), except as set forth in Section 6.11, and in accordance with the requirements of this Agreement. The terms “data processor,” “service provider,” “data controller,” “process” and their derivatives will have the meanings ascribed to them under the Laws applicable to the relevant Personal Data, or if not so defined, they will have their plain language meanings in the territory where the processing occurs. To the extent that a DPA applies to Amazon Ad Server’s processing of Customer Personal Data, such processing is also subject to the applicable DPA, which is incorporated by reference into this Agreement.
6.3 Customer Instructions. Amazon Ad Server will process any Customer Personal Data in accordance with Customer’s lawful instructions under applicable Privacy Rules and will not: (a) assume any responsibility for determining the purposes for which or the manner in which Customer Personal Data is processed; or (b) other than certain Non-Proprietary Data that may be Personal Data under applicable Laws, process any Customer Personal Data for its own purposes.
6.5 Technical and Organizational Measures. Amazon Ad Server will have in place and maintain throughout the Term appropriate technical and organizational measures to protect against accidental or unauthorized destruction, loss, alteration, or disclosure of Customer Data. Customer acknowledges that Amazon Ad Server shall have the right to delete Customer Data in accordance with Amazon Ad Server’s data retention policies and to disclose, modify, or delete Customer Personal Data in accordance with this Agreement or as required by Privacy Rules.
6.6 Subcontractors. Customer authorizes Amazon Ad Server to subcontract processing of Customer Data under this Agreement to one or more third parties provided that Amazon Ad Server: (a) complies with applicable Laws; (b) flows down its obligations to protect the Customer Data to any subcontractor it appoints; and (c) remains responsible for any failure to comply with the applicable Laws by any subcontractor it appoints to process Customer Data.
6.7 Ad Technologies. In the course of performing the Services, Ad Technologies may be used by Amazon Ad Server in relation to websites or applications of Customer, its Third-Party Users, their respective customers, and other websites, applications, and online and mobile presences to improve, analyze, and measure the success of advertising campaigns delivered using the Services, and/or to research, augment or improve Amazon Ad Server’s own Services in a way that does not identify Customer, its Third-Party Users, or their respective customers. Customer will ensure that it (and its Third-Party Users, where applicable) obtains all appropriate and necessary consents, and provides all necessary information and opt- out choices, to enable the use of such Ad Technologies in compliance with the Privacy Rules. Customer will also ensure that individuals are informed of their ability to refuse or opt-out of Amazon Ad Server Ad Technologies at any time, e.g., by visiting Amazon Ad Server’s opt-out page available at http://www.sizmek.com/privacy-policy/ or any other location specified by Amazon Ad Server from time to time. Customer agrees that Amazon Ad Server has no responsibility or liability for any Customer Ad Technologies, third-party Ad Technologies, Third-Party Offerings, or other third-party contractors deployed or used by Customer via or in connection with the Services.
6.9 Third-Party Technologies. Customer will not append any Customer or third-party Ad Technologies (collectively “Third- Party Tags”) to Amazon Ad Server’s Ad Technologies or Ads delivered by Amazon Ad Server, nor will Customer allow any such third-party tracking or tagging through the System unless such Third-Party Tags and the provider thereof are in full compliance with Section 6 (Data Protection and Privacy), and the Privacy Rules, including, without limitation, by presenting users with notice and choice to (as applicable) consent to and/or opt-out of data collection and processing in connection with such Third-Party Tags. Customer will provide Amazon Ad Server and any client it represents, where applicable, with notice of any Third-Party Tags Customer wishes to implement via the Services. Amazon Ad Server reserves the right to validate any Third-Party Tags or provider thereof for compliance with Section 6 and the Privacy Rules, for authenticity, and otherwise, and is under no obligation to allow the implementation of Third-Party Tags and may prohibit any such implementation at any time. Amazon Ad Server may create lists of Third-Party Tags that are permitted to be implemented via the Services. Without derogating from the above, Customer will be solely responsible for any Third-Party Tags implemented via the Services or any provider or other person acting or authorized to act on Customer’s behalf, including for any damage, cost or claim resulting from appending such Third-Party Tags.
6.10 Applicable Entities. Amazon Europe Core S.à.r.l. (“AEC”) (or other duly designated Amazon Ad Server Affiliate) is the independent data controller in respect of any “personal data” within the meaning of applicable Laws of the European Economic Area and the United Kingdom that may be processed by Amazon Ad Server as a data controller. Amazon Serviços de Varejo do Brasil Ltda. (“ASVB”) (or other duly designated Amazon Ad Server Affiliate) is the independent data controller in respect of any “personal data” within the meaning of applicable Laws of Brazil that may be processed by Amazon Ad Server as a data controller. Customer acknowledges and agrees that applicable Amazon Ad Server Affiliates may act as data processors (or sub-processors) for AEC or ASVB, as applicable (or their applicable designee(s) or successor(s) in interest).
6.11 Provisions Regarding U.S. State Privacy Laws. Amazon Ad Server will act as your service provider or processor (as defined by applicable U.S. State Privacy Laws) as to any “Personal Information” or “Personal Data” (as such term is defined in the U.S. State Privacy Laws) that Amazon Ad Server processes on your behalf pursuant to the Agreement, except, where the CCPA applies, for cross-context behavioral advertising (as defined in the CCPA). Amazon Ad Server will not use or disclose such Personal Information or Personal Data for purposes other than (a) business purposes for providing the Services, to the extent Amazon Ad Server acts as your service provider, or (b) as may otherwise be permitted under the U.S. State Privacy Laws. These purposes include ad delivery, frequency capping, security and fraud detection, debugging, forecasting, reporting and measurement, and improving and developing features for the Service, but exclude cross- context behavioral advertising. Amazon Ad Server shall make available to you all information in its possession necessary to demonstrate compliance with applicable Laws and shall notify you if it determines it can no longer meet its obligations under applicable Laws. You have the right, upon notice , to the extent required by applicable Laws and using materials generally made available by Amazon Ad Server for such purposes, to (i) ensure that Amazon Ad Server uses Personal Information or Personal Data, as applicable, provided pursuant to this Agreement in a manner consistent with your obligations under the U.S. State Privacy Laws and (ii) request Amazon Ad Server to suspend or discontinue the applicable processing of the Personal Information or Personal Data, as applicable, to the extent necessary to stop or remediate unauthorized use of Personal Information or Personal Data. You are solely responsible for ensuring that Third-Party Users and Third-Party Tags process any Personal Information or Personal Data in compliance with the U.S. State Privacy Laws. This section applies solely to the extent that the U.S. State Privacy Laws apply.
7. Customer Responsibilities.
7.1 General. As between the parties, Customer is solely responsible for: (a) all aspects of any Customer Materials created, delivered, managed through, processed, or linked to the Services; (b) all campaign settings, including settings in the System designated as “Stop Serving”, as determined and inserted by or on behalf of Customer on the System; and (c) all aspects of campaign management, including data entry, ads, pricing, budget, maximum number of impressions, flight parameters, pacing, campaign set up and trafficking, targeting constraints, monitoring ad status, advertiser requirements and objectives, and campaign performance. Customer is solely responsible for any conditions, representations, or warranties it makes to its advertisers regarding actual or expected campaign performance, and for any make-goods it may issue to advertisers. Customer represents, warrants, and covenants that it will conduct (and ensure that its Third-Party Users conduct) all of its marketing, business, and other activities related to the Customer Materials, its use of the Services, and its performance of its obligations and exercise of its rights under Agreement in compliance with all applicable Laws and Privacy Rules.
7.2 Acceptable Use. Customer represents, warrants, and covenants that it will not (and will ensure that its Third-Party Users do not) use the Services in a manner that, or in connection with, or to promote campaigns, Advertisements, or other Customer Materials or Site Content (including code or links) containing content that: (a) is invasive of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, harassing, abusive, hateful, or discriminatory; (b) promotes any illegal or fraudulent activity, including, without limitation, the promotion of gambling where prohibited, illegal substances, software piracy or hacking, or invalid advertising traffic; (c) infringes the personal, intellectual property, or other rights of any third party; (d) promotes or references software piracy and/or activities generally understood as Internet abuse, including the sending of unsolicited bulk messages or the distribution or use of spyware, Malware, worms, Trojan horses, time bombs, cancelbots, bots, or other code that generates fraudulent or invalid advertising traffic, corrupted files, or similar software; (e) it knows or reasonably should have known to be false, fraudulent or misleading, including content, links or codes that facilitate the creation or use of fraudulent or invalid advertising traffic; or (f) is otherwise in violation of this Agreement or the Additional Terms and Conditions. “Malware” means software or applications, or websites associated with software or applications, that (i) may be used to disrupt, damage, take control of, misuse, or otherwise use or disable a computer or computer system or operation; (ii) impermissibly view or collect information; (iii) access computer systems to display or distribute unwanted or illicit advertising, content or software; (iv) violate the policies of any applicable advertising exchange or publisher; or (v) may otherwise be harmful or inappropriate as determined by Amazon Ad Server in its sole discretion. Without derogating from Customer’s responsibility for the foregoing, Customer shall use commercially reasonable means for preventing Malware upload or transmission to the Amazon Ad Server System or otherwise in connection with Customer’s use of the Services.
7.3 Customer Status. Customer represents and warrants that it is a business, not a consumer, and has the rights, authority, and any required permission and consent to enter into this Agreement, and if applicable that it is acting as an agent for a disclosed principal, its advertiser, and that as such, Customer has the authority as agent to incur the Fees charged by Amazon Ad Server and perform any other actions in connection with the Services on such advertiser’s behalf. To the extent Customer acts on behalf of any advertiser client under this Agreement, (i) Amazon Ad Server reserves the right to send invoices for Fees and make available Reports to the advertiser client to which they pertain, and (ii) Customer and such advertiser client will be jointly and severally responsible for the payment of Fees. Customer will, upon our request, provide Amazon Ad Server with contact information for the advertiser client on whose behalf Customer is acting. Customer represents and warrants that (a) neither it nor its Third-Party Users are currently the subject of any investigation or prosecution by any regulatory authority in connection with a matter that may have a material detrimental effect on users of Customer’s applicable products, services, or advertising, or on Amazon Ad Server, any of its Affiliates or any of their respective customers; or (b) if it or any of its Third-Party Users becomes involved or is named in any investigation or prosecution by any regulatory authority in connection with a matter that may have a material detrimental effect on Amazon Ad Server or users of Amazon Ad Server’s products, services, or advertising, then Customer will immediately provide notice to Amazon Ad Server of such action, investigation, complaint or other proceeding, in which event Amazon Ad Server may terminate this Agreement immediately.
7.4 Customer Conduct. Customer represents, warrants, and covenants that: (a) it and its Third-Party Users have or will obtain all necessary rights, licenses, consents, waivers, and permissions, including, without limitation, from advertisers, publishers, users, and other third parties, to allow Amazon Ad Server: (i) to store and deliver the Customer Materials and otherwise provide the Services and operate the System on behalf of Customer; (ii) to make any technical or other modifications that it may deem necessary to facilitate the delivery of the Advertisements and related Customer Materials; provided, that Amazon Ad Server will not make any amendments to the creative content of any Advertisements or Customer Materials except as requested or permitted by Customer; (iii) to use any Customer Data provided to or collected by Amazon Ad Server in the provision of the Services for Customer and according to Customer’s or its Third Party Users’ instructions and as otherwise permitted under this Agreement; and (iv) to receive, transfer, and process any Customer Data from or to any third party according to Customer’s or its Third-Party Users’ instructions, whether by API, FTP, or other data transfer method; (b) notify Amazon Ad Server of any errors in any Customer Materials and any complaints or claims made in respect of any Customer Materials as soon as the same comes to its attention; and (c) if Amazon Ad Server considers, in its sole discretion, that any Customer Materials breach any of the requirements set forth in Section 7 (Customer Responsibilities), or may subject Amazon Ad Server to material adverse risks, and Amazon Ad Server requests that such Customer Materials be removed or amended, then Customer will withdraw such Customer Materials from the System or amend such Customer Materials to Amazon Ad Server’s satisfaction.
7.5 Compliance Monitoring. Customer will ensure that it and any Third-Party Users comply with this Agreement. Amazon Ad Server may audit Customer’s use of the Services (including, for the avoidance of doubt, via clicks on Ads or landing pages) and observe all of Customer’s activity on the Services. Customer will promptly notify Amazon Ad Server of any suspected or alleged breach of this Agreement and will cooperate with Amazon Ad Server regarding: (a) any investigation by Amazon Ad Server of any suspected or alleged violation of this Agreement; and (b) any action by Amazon Ad Server to enforce the terms and conditions of this Agreement. Without any liability to Customer and without prejudice to Amazon Ad Server’s other rights under the Agreement, Amazon Ad Server may at any time, with or without notice, limit, suspend, or terminate Customer’s or any Third-Party User’s access to the Services and/or System or terminate any Order or the Agreement, if Amazon Ad Server considers, in its sole discretion, that Customer or Third-Party User has breached this Agreement or is otherwise using the System or the Services in a manner that may be harmful to Amazon Ad Server, its other customers, or other third parties.
7.6 Trade Law Compliance. In connection with this Agreement, Customer will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control Laws, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Customer understands that some of the software, technology or related information that Customer and its employees or contractors may have access to may be subject to export control Laws and regulations (the “Export Controlled Materials”). Customer will not, without prior written approval from Amazon Ad Server, allow any of its employees or contractors to have access to or use of any Export Controlled Materials if such access or use would require an export license.
7.7 Indemnification by Customer. Customer agrees to indemnify, defend, and hold harmless Amazon Ad Server, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all losses, costs, damages or liabilities, including, without limitation, legal fees, costs and expenses (collectively, “Losses”), arising out of any third-party claim or action related to Customer’s or any Third-Party User’s breach of any of the obligations and warranties set forth in Section 7 (Customer Responsibilities), any other representations, warranties, terms, conditions, or obligations of Customer as provided in this Agreement, or the Customer Materials. The foregoing obligations are conditioned on Amazon Ad Server: (a) notifying Customer promptly in writing of such action (provided that the failure to provide prompt notice will only relieve the Customer of its obligation to the extent that it is materially prejudiced by such failure and can demonstrate such prejudice); (b) permitting Customer to control the defense thereof and any related settlement negotiations upon Customer’s written notice to Amazon Ad Server of Customer’s intention to indemnify; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Customer will in no event agree to any settlement of any claim that involves any commitment, other than the payment of money by Customer, without Amazon Ad Server’s prior written consent. Amazon Ad Server is hereby authorized (but not obligated) prior to, during, and after the notice period to file any motion, answer or other pleading and to take any other action that Amazon Ad Server shall deem necessary or appropriate to protect its interests.
8. Amazon Ad Server Responsibilities.
8.1 Amazon Ad Server Representations. Amazon Ad Server represents and warrants that: (a) it is duly authorized to enter into this Agreement and provide the Services hereunder; and (b) its provision and operation of the Services is in compliance with all applicable Laws.
8.2 Indemnification by Amazon Ad Server. Amazon Ad Server agrees to indemnify, defend, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees and agents from and against any and all Losses, arising out of or related to any third-party action to the extent it is based upon a claim that the System or Services infringe any Intellectual Property Right of a third party. The foregoing obligations are conditioned on Customer: (a) notifying Amazon Ad Server promptly in writing of such action (provided that the failure to provide prompt notice will only relieve Amazon Ad Server of its obligation to the extent that it is materially prejudiced by such failure and can demonstrate such prejudice); (b) permitting Amazon Ad Server to control the defense thereof and any related settlement negotiations; and (c) cooperating and, at Amazon Ad Server’s request and expense, assisting in such defense. Without limitation of the foregoing, if the System or Services become, or in Amazon Ad Server’s sole opinion are likely to become, the subject of an infringement claim, Amazon Ad Server may, at its option and expense: (i) procure for Customer the right to continue using the System or Services; (ii) replace or modify the System or Services so that they become non-infringing; (iii) accept return of any deliverables provided as a result of the Services, and/or (iv) terminate this Agreement or the applicable Order, in whole or in part, as appropriate, upon written notice to Customer and refund Customer any Fees pre-paid in respect of the Services upon such termination. Notwithstanding the foregoing, Amazon Ad Server will be relieved of its obligation under this Section 8.2 to the extent that any third-party action is based upon: (A) any Customer Materials; (B) any use of the System or Services not in accordance with this Agreement; (C) any use of the Services in combination with products, equipment, software, data, or other materials not supplied by Amazon Ad Server; (D) any use of any release of the System or Services other than the most current release made available to Customer; (E) any modification of the System or Services by Customer, its agents, or subcontractors; or (F) any use of the Services or the System after Amazon Ad Server has notified Customer to discontinue such use. THIS SECTION 8.2 STATES AMAZON AD SERVER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY THIRD-PARTY CLAIMS OF INFRINGEMENT.
9. Fees; Payment.
9.1 General. All payments of Fees under this Agreement by Customer will be made in accordance with the payment terms set forth in Section 9 (Fees; Payment). All usage of Services will be determined by Amazon Ad Server metering. Customer waives all claims related to Fees, unless made within 60 days after the date charged. All amounts payable by Customer under this Agreement will be paid to Amazon Ad Server without setoff or counterclaim, and without any deduction or withholding. Customer authorizes Amazon Ad Server to verify Customer’s registration information from time to time, including by obtaining credit reports and references about Customer.
9.2 Invoicing; Payment. Unless otherwise agreed between Amazon Ad Server and Customer in an MSA or Order or provided for in Section 15.3 (Sales Partners), Amazon Ad Server shall invoice Customer on a monthly basis, and payment of Amazon Ad Server invoices shall be due to Amazon Ad Server within net thirty (30) days of the invoice date and shall be made by wire transfer or other method approved by Amazon Ad Server. Customer agrees to pay Amazon Ad Server such Fee amounts in the applicable local currency invoiced by Amazon Ad Server, or such other currencies as Customer and Amazon Ad Server may mutually agree from time to time. Customer agrees to provide Amazon Ad Server with an authorized email address so that Amazon Ad Server may transmit invoices via email delivery. Amazon Ad Server will not be required to use any online portal or electronic system provided by Customer in order to issue invoices to Customer or receive payment from Customer.
9.3 Rates. Unless otherwise agreed in an Order or MSA or provided for in Section 15.3 (Sales Partners), the Fees for the Services will be Amazon Ad Server’s then-applicable standard rates. If Customer uses any Services for which the Fees are not specified in an MSA or Order or provided for as described in Section 15.3, then the Fees for such Services will be Amazon Ad Server’s then-applicable standard rates.
9.4 Taxes. Each party will be responsible, as required under applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by Customer are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes (“Indirect Taxes”). Customer will provide such information to Amazon Ad Server as reasonably required to determine whether Amazon Ad Server is obligated to collect Indirect Taxes from Customer. Amazon Ad Server shall not collect, and Customer shall not pay, any such Indirect Tax or duty for which Customer furnishes Amazon Ad Server a properly completed exemption certificate or a direct payment permit certificate or for which Amazon Ad Server may claim an available exemption from Indirect Tax. All payments made by Customer to Amazon Ad Server under this agreement will be made free and clear of any withholding or deduction for taxes. If any such taxes (for example, international withholding taxes) are required to be withheld on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Amazon Ad Server is equal to the amount then due and payable under this Agreement. Amazon Ad Server will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
9.5 “Stop Serving” and Similar Settings. With respect to ad serving services, Customer will be billed per the following scenarios with respect to System settings: The designated ad format (e.g., video) will continue to be served until the predefined stop event (if any), after which default images will continue to be served instead, in each case as set forth in the System. Impressions served until the stop event (if any) will be billed at their applicable rate, and any impression served afterwards will be billed at the default image rate. Notwithstanding any “stop serving” settings or termination of an Order by Customer, Customer will pay Amazon Ad Server at the applicable rates for professional, creative, and other related services rendered through the date of termination, cancellation, or “stop serving” setting, regardless of the number of impressions served.
9.6 Nonpayment. If Customer fails to pay any amount payable by it under this Agreement in accordance with Section 9 (Fees; Payment), Amazon Ad Server may charge Customer interest on the overdue amount (payable by Customer immediately on demand) from the due date up to the date of actual payment, at the rate of 1.5% per month or the highest rate allowed by Law, whichever is less. Such interest will accrue on a daily basis and be compounded on a monthly basis. Customer will also be responsible for payment of all reasonable expenses (including attorneys’ fees and costs) incurred by Amazon Ad Server in collecting any overdue amounts from Customer.
10. DISCLAIMER.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SYSTEM, AND THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS AND AMAZON AD SERVER DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SYSTEM OR THE SERVICES, AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AMAZON AD SERVER DISCLAIMS ALL IMPLIED PROMISES WITH RESPECT TO THE SYSTEM AND THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR QUIET ENJOYMENT, AND ANY PROMISES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. AMAZON AD SERVER WILL NOT BE HELD RESPONSIBLE FOR: (A) ANY ERRORS OR INACCURACIES IN ANY CUSTOMER MATERIALS OR SITE CONTENT; (B) SERVICE INTERRUPTIONS DUE TO FACTORS REPRESENTING INHERENT RISKS ASSOCIATED WITH THE USE OF ELECTRONIC COMMUNICATIONS, INCLUDING NETWORK INTERRUPTIONS, COMMUNICATIONS FAILURES, THIRD-PARTY SERVER DOWNTIME, POWER OUTAGES, OR SYSTEM FAILURES; OR (C) ANY UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE OR LOSS OF CUSTOMER’S OR ANY THIRD-PARTY USER’S CUSTOMER MATERIALS, SITE CONTENT OR OTHER MATERIALS, DATA, IMAGES, SOUNDS, TEXT INFORMATION, OR CONTENT. AMAZON AD SERVER MAY DISCONTINUE ANY ASPECT OF THE SYSTEM OR THE SERVICES, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE OR OPERATION OF THE SYSTEM OR THE SERVICES, AT ANY TIME. AMAZON AD SERVER ALSO DOES NOT IN ANY WAY MAKE ANY PROMISES THAT THE SYSTEM OR THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED MANNER, ERROR-FREE, OR FREE FROM HARMFUL COMPONENTS. IN ADDITION, AMAZON AD SERVER MAKES NO PROMISES THAT THE SYSTEM OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR RESULT FROM USING THE SYSTEM OR THE SERVICES.
11. Limitation of Liability. IN NO EVENT (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) WILL (A) AMAZON AD SERVER BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR RELIANCE DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY AND (B) AMAZON AD SERVER’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO AMAZON AD SERVER UNDER THIS AGREEMENT FOR THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST OF ANY CLAIMS IS MADE IN CONNECTION WITH THIS AGREEMENT.
13. Force Majeure. Amazon Ad Server will not be responsible for any delay or failure in performing obligations under this Agreement which delay or failure results from any cause beyond its reasonable control. Such force majeure events may include acts of God, storms or other elements of nature, fires, epidemics, wars, terrorism, riots, strikes, lockouts or other labor disputes, decisions or omissions of authorities, and new legislation.
14.2 Notice. Amazon Ad Server may provide notices to Customer, at Amazon Ad Server’s option, by email to the email address provided by Customer to Amazon Ad Server, by mail to the postal address provided by Customer to Amazon Ad Server, or by posting on the System or any Amazon Ad Server website to which Customer has access in connection with this Agreement. It is Customer’s responsibility to ensure that the email address and any other contact and registration information it provides to Amazon Ad Server is updated and correct at all times during the Term. Changes to Customer’s contact information should be sent to Customer’s designated Amazon Ad Server service representative, with a copy via email to Sizmek-Collectors@amazon.com.
14.3 Relationship of the Parties. Customer and Amazon Ad Server are independent contractors and nothing in this Agreement will give Customer the right, power or authority to create any obligation or responsibility on behalf of Amazon Ad Server. Except as expressly set forth in this Agreement, neither Customer nor Amazon Ad Server will have any right, power, or authority to create any obligation or responsibility on behalf of the other and this Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that (a) Amazon Ad Server may perform any of its obligations or exercise any of its rights under this Agreement through one or more of its Affiliates and (b) AEC and ASVB are third-party beneficiaries of this Agreement, and nothing in this Agreement shall be construed to prevent the Amazon Ad Server Contracting Entities, acting on behalf of AEC or ASVB, or AEC or ASVB, acting on its own behalf, from exercising any rights or remedies granted to the Amazon Ad Server Contracting Entities under this Agreement or applicable Law.
14.4 Assignment. Customer may not assign its obligations under this Agreement without prior written consent of Amazon Ad Server. Any attempt to assign in violation of this section is void in each instance. Amazon Ad Server may assign this Agreement (or any of its rights and obligations under this Agreement) (i) to any of its Affiliates; or (ii) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction.
14.5 Waiver; Severability. No failure or delay on the part of Amazon Ad Server in exercising any right, power, condition or remedy under this Agreement will operate as a waiver by Amazon Ad Server, nor will any single or partial exercise of any such right, power, condition or remedy preclude any other or further exercise or the exercise of any other right, power, condition or remedy by Amazon Ad Server. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective only to the minimum extent necessary without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of any provision in any other jurisdiction. Notwithstanding anything to the contrary herein, nothing in the Agreement shall, or shall be interpreted or construed to, induce or require either party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. Laws, regulations, rules or requirements that apply to any party to the Agreement.
15. Contracting Entities; Governing Laws; Jurisdiction.
15.1 CIETAC Arbitration. With respect to any Customer of Amazon (China) Holding Company located in Taiwan or Hong Kong, any dispute arising out of or relating to this Agreement will be resolved by arbitration in Beijing pursuant to China International Economic Trade Arbitration Commission rules.
15.2 Other Account Types. Certain account types in the System are intended primarily for certain limited purposes, such as (i) the development, production, and management of creative assets to be incorporated into Ads (each, a “Creative Account”) or (ii) for reporting and/or payment of Fees (e.g., for Ads delivered to applicable Sites) (each, a “Paying Account”). Any such special-purpose accounts are referred to as “Other Account Types”. Customer acknowledges and agrees that such Other Account Types may have limited access, privileges, and functionality. Customer will be responsible for any Other Account Types to the extent linked to the Customer’s Account, for any Customer Materials in any such Other Account Types, and for any materials supplied by any Other Account Type to Customer’s Account. Even if an Other Account Type is (subject in each case to Amazon Ad Server’s written consent) set up for reporting and payment of Fees incurred on behalf of Customer, e.g., by an agency on behalf of Customer as its advertiser client, Customer remains responsible to Amazon Ad Server for payment of any Fees to the extent not paid by the applicable Other Account Type.
15.4 Contracting Entities. The Amazon Ad Server legal entity providing the Services, the laws governing the interpretation of this Agreement, and the jurisdiction and venue for all disputes hereunder will be determined as follows: This Agreement is between you and the Amazon Ad Server contracting entity that corresponds with your Territory of Sales, as set forth in the table below. This Agreement will be governed by the applicable Governing Laws that correspond with the Territory of Sales as specified in the table below, without regard to conflict of laws rules or principles. Customer and Amazon Ad Server consent to personal jurisdiction and venue corresponding to the Territory of Sales as specified in the table below, and each party hereby expressly waives any objection or defense thereto. Customer and Amazon Ad Server agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. With respect to any proceeding or action arising out of or in any way relating to this Agreement, the parties knowingly, intentionally and irrevocably waive any right to trial by jury. All notices to Amazon Ad Server will be made in writing to the applicable Amazon Ad Server Contracting Entity at the corresponding address specified in the table below, with a copy to: Amazon, Attn: General Counsel, 410 Terry Avenue North, Seattle WA 98109, with a required copy via email to firstname.lastname@example.org. Notices should be sent by certified first-class mail, return receipt requested, or a nationally recognized delivery service. Notices will be deemed received based on the delivery date shown on the written delivery confirmation notice.
|Amazon Ad Server Contracting Entity
|Territory of Sales
|Jurisdiction and Venue
|Amazon Advertising LLC
|410 Terry Avenue North, Seattle, WA 98109 USA
|United States, Brazil, Argentina
|The laws of the state of Washington
|State or Federal courts in King County, Washington
|Amazon Advertising Canada, Inc.
|120 Bremner Blvd, 26th Floor, Toronto, ON, M5J 0A8, Canada
|The laws of the state of Washington
|State or Federal courts in King County, Washington
|Amazon Online UK Limited
|1 Principal Place, Worship Street, EC2A 2FA, London, United Kingdom
|The laws of the Grand Duchy of Luxembourg
|The courts in the district of Luxembourg City
|Amazon (China) Holding Company Limited
|5F, Tower A, Ocean International Center N°.56 Dongshihuanzhonglu, Chaoyang District, Beijing
|Laws of the People’s Republic of China (PRC)
|The courts of PRC in Beijing, except for Customers located in Hong Kong and Taiwan (refer to Section 15.2 instead)
|Servicios Comerciales Amazon Mexico S. de R.L. de C.V.
|Juan Salvador Agraz No. 73, Piso 7, Colonia Santa Fe, Delegacion Cuajimalpa de Morelos, Mexico City
|The laws of the state of Washington
|State or Federal courts in King County, Washington
|Amazon Commercial Services Pty Ltd
|Level 20, 2 Park Street, Sydney, NSW, 2000, Australia
|The laws of New South Wales
|The courts of New South Wales, Australia
|Amazon Japan G.K.
|8-1, Shimomeguro 1-chome, Meguro-ku, Tokyo, 153-0064, Japan
|The laws of Japan
|Tokyo District Court
|Amazon Asia-Pacific Holdings Private Limited
|8 Marina View, #23-01, Asia Square Tower 1, 018960 Singapore
|The laws of Singapore
|Arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the arbitration rules of the SIAC.
|Amazon Online UK Limited
|1 Principal Place, Worship Street, EC2A 2FA, London, United Kingdom
|Any other location not otherwise listed in this chart
|Laws of England and Wales
|The courts of England and Wales located in London, England