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 in accordance with the termination provisions set forth in your Selling Partner Agreement. 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. Amazon will defend, indemnify, and hold harmless you and your employees, officers, and directors against any third-party claim arising from or related to: (a) Amazon’s non-compliance with applicable laws; or (b) allegations that the ABA Information infringes or misappropriates that third party’s intellectual property rights.
5. Disclaimer of Warranties.
YOU ACKNOWLEDGE AND AGREE THAT THE ABA SITE AND ANY ABA INFORMATION ARE PROVIDED ON AN “AS-IS” BASIS.
6. Limitation of Liability.
EXCEPT UNDER THE INDEMNITY IN SECTION 4(c): BOTH PARTIES ARE ONLY LIABLE FOR DAMAGES SUFFERED AS A RESULT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE IRRESPECTIVE OF THE UNDERLYING LEGAL GROUND. IN CASE OF MINOR NEGLIGENCE, THE PARTIES ARE ONLY LIABLE FOR (A) INJURY TO LIFE, BODY, OR HEALTH; OR (B) FORESEEABLE TYPICALLY OCCURRING DAMAGES RESULTING FROM THE BREACH OF A FUNDAMENTAL CONTRACTUAL OBLIGATION.
(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. This Agreement will be interpreted and enforced in accordance with the provisions set forth in your Selling Partner Agreement.
(d) Notices. Any notice or other communication under this Agreement given by us to you will be effective if: sent via email to you at any email address you have on file with us or that you have otherwise designated or posted on the ABA Site or on the applicable Amazon Store site accessible through your account, or by similar means.
(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. In the event of any conflict between this Agreement and the applicable Selling Partner Agreement, the terms of this Agreement will prevail.
(f) Amendments to these Terms. These Terms may be amended in accordance with the same modification provisions set forth in your Selling Partner Agreement.
(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.