1. How the ABA Service works.
Through the ABA Service you may have access to data (“ABA Information”) relating to the sales and promotion of products through the applicable Amazon website. ABA Information may be available via a website or other online channel (“ABA Site”). We may change the content, format or update frequency of the ABA Information or the ABA Site at any time for any reason.
Either party has the right to terminate this Agreement immediately by giving notice to the other. Your license to use the ABA Information or access the ABA Site is revoked immediately upon termination of this Agreement.
3. Ownership and Use Rights and Obligations.
We own all right, title and interest in and to the ABA Information. We grant to you a limited, revocable, non-transferable, non-exclusive, license during the term to use any ABA Information solely for your internal business purposes (the “Permitted Business Purposes”). You will comply with all technical requirements and security measures required by us. You will promptly notify us if you become aware of any improper use, security risk or breach related to the ABA Site.
(a) Restricted use and disclosure. In addition to any confidentiality obligations you may have in your Selling Partner Agreement or any other Nondisclosure Agreement with Amazon, You will: (i) keep the ABA Information confidential, (ii) use the ABA Information only for the Permitted Business Purposes, and (iii) take all reasonable measures to avoid disclosure or unauthorized use of the ABA Information, including, at a minimum, those measures you take to protect your own confidential information. You acknowledge that disclosure or use of any ABA Information in violation of this Agreement could cause irreparable harm to us for which monetary damages may be an inadequate remedy, and therefore agree that Amazon will have the right to seek injunctive relief for any violation of this Agreement.
(b) Personnel. You will restrict access to and use of the ABA Site and ABA Information to Authorized Users. “Authorized User” means your employee or agent who has a need to access the ABA Site and know ABA Information for a Permitted Business Purpose and who agrees to act in accordance with this Agreement. “Authorized User” will not include any individual who we deem to be inappropriate for access to the ABA Site. You will ensure that all Authorized Users comply with the requirements of this Agreement. You will immediately terminate an Authorized User’s access to the ABA Site and use of ABA Information if they cease to qualify as an Authorized User.
(c) Indemnity. You will defend, indemnify and hold harmless Amazon and its affiliates (and the directors, officers, employees, agents and other representatives of Amazon and its affiliates) from and against all claims, damages, liabilities, losses, judgments, settlements, costs and expenses (including legal fees) arising from or relating to your or an Authorized User’s disclosure or use of any ABA Information for a purpose other than a Permitted Business Purpose.
5. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT THE ABA SITE AND ANY ABA INFORMATION ARE PROVIDED ON AN “AS-IS” BASIS. AMAZON AND ITS AFFILIATES DISCLAIM ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED.
6. Limitation of Liability.
EXCEPT UNDER THE INDEMNITY IN SECTION 4(c): A) IN NO EVENT WILL WE OR YOU BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR BUSINESS OPPORTUNITIES OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER WE OR YOU KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND B) IN NO EVENT WILL YOUR OR OUR LIABILITY ARISING UNDER THIS AGREEMENT EXCEED ONE THOUSAND THREE HUNDRED AUSTRALIAN DOLLARS.
(a) Assignment. You may not assign any part or all of this Agreement without our prior written consent.
(b) Survival. With the exception of the second sentence of section 3, Sections 3 through 7 of this Agreement shall survive termination of this Agreement.
(c) Governing Law; Venue. The laws of New South Wales govern this Agreement and any dispute of any sort that might arise between the parties. Any dispute relating in any way to this Agreement will only be adjudicated in the courts of New South Wales. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights. The United Nations Convention on Contracts for the International Sale of Goods, and any local laws implementing the Convention on Contracts for the International Sale of Goods, do not apply to this Agreement. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE ANY RIGHTS THAT YOU MAY HAVE TO BRING DISPUTES FOR RESOLUTION BEFORE ANY OTHER COURT, TRIBUNAL OR FORUM. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. We each waive any right to a jury trial.
(d) Notices. Any notice or other communication under this Agreement given by us to you will be effective if: (a) sent via email to you at any email address you have on file with us or that you have otherwise designated or (b) posted on the ABA Site.
(e) Entire Agreement. This Agreement, along with the applicable Selling Partner Agreement, constitutes the entire agreement relating to its subject matter and, except as otherwise set forth in this Agreement, may be amended or modified only with the mutual written consent of the parties.
(f) Amendments to these Terms. We may change any of the terms and conditions contained in this Agreement at any time. Any changes will be effective upon the earlier to occur of: (a) emailing the revised terms and conditions, or notice of such changes, to you at your e-mail address; or (b) posting the revised terms and conditions on the ABA Site. You are responsible for reviewing any such revised terms and conditions and notices of revisions. YOUR CONTINUED USE OF THE ABA SERVICE FOLLOWING OUR EMAILING AND/OR POSTING OF ANY REVISED TERMS AND CONDITIONS WILL CONSTITUTE YOUR ACCEPTANCE OF THE REVISIONS. IF YOU DO NOT AGREE TO ANY OF THE REVISED TERMS AND CONDITIONS, YOU MUST NOT CONTINUE TO USE THE ABA SERVICE.
(g) Validity. If any of these terms is deemed invalid, void, or unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining term.
(h) No waiver. Either party's failure to enforce any provision of this Agreement will not be a waiver of the party's rights to subsequently enforce the provision.