This page contains the most up-to-date Amazon Advertising Agreement. To view a list of changes that have been made to the Agreement and announced upcoming changes, please see the Changes to the Amazon Advertising Agreement.
AMAZON ADVERTISING AGREEMENT
Posted: January 2, 2020
Welcome to Amazon Sponsored Ads. This Amazon Advertising Agreement (“Agreement”), formerly known as the Sponsored Ads Agreement, governs Customer’s access to and use of the Ad Services, including the Advertising Console, and is made among Amazon, Customer, and each Advertiser (as defined in Section 8.B), if any. This Agreement includes any insertion orders between Customer and Amazon that incorporate this Agreement by reference (“IO”). BY REGISTERING FOR OR USING THE AD SERVICES, CUSTOMER (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING THE AD POLICIES. “We,” “us,” “our,” and “Amazon” means the applicable Amazon Contracting Party and any of its applicable Affiliates. Subject to Section 8.B, “Customer,” “you,” or “your” means the applicant (if registering for or using the Ad Services as an individual) or the business employing the applicant (if registering for or using the Ad Services as a business).
1. Ad Services Generally. During the Term and subject to the terms of this Agreement, Amazon will make available to Customer a variety of tools and services, including as may be provided through the Advertising Console, that enable Customer to place Ads on Publisher Properties and to manage and receive reporting on the foregoing (the “Ad Services”). We reserve the right to determine all aspects of the Ad Services, and may modify, restrict, or discontinue any services and tools offered through the Ad Services at any time without notice. We may charge for any service or tool of the Ad Service at any time upon notice to Customer (e.g., via the user interface of the Advertising Console). In connection with the management or operation of the Ad Services, Amazon may reject or remove any Customer Materials, or suspend any Campaign if: (a) the Customer Materials or Campaign violates the Ad Policies or this Agreement; (b) your account has been, or our controls identify that it may be used for deceptive or fraudulent or illegal activity; (c) Amazon believes the Customer Materials or Campaign would expose Amazon to liability; or (d) for other risk management reasons. Except as expressly provided in writing by Amazon, we do not guarantee that Customer’s Ads will be displayed on or made available through any Publisher Property, nor do we guarantee Customer’s Ads will appear in any particular position or rank. Amazon and Publishers may reject or remove any Customer Materials without notice for any reason. Amazon will have no liability for any such action. Customer acknowledges that we and any of our Affiliates may participate in the Ad Services to market any of our or our Affiliates’ products and services.
2. Customer’s Obligations.
A. Advertising Console Account. Customer is solely responsible for its Advertising Console account, including all activity that occurs under its Advertising Console account (including incurred Fees) regardless of whether the activities are authorized or undertaken by Customer.
B. Ad Policies. Customer’s use of the Ad Services will comply with the Ad Policies, which Customer accepts and are incorporated into this Agreement. Amazon may make changes to Ad Policies at any time at our sole discretion. Changes to Ad Policies are effective upon their posting or upon notice as otherwise set forth in Section 13.G.
C. Responsibility for Customer Materials, Use of Ad Services, and Contractors. Customer is solely responsible for all Customer Materials and its use of the Ad Services. Customer agrees that nothing in the Customer Materials or its use of the Ad Services will be false, misleading, defamatory, harassing, or threatening, will constitute unfair competition or unfair commercial practice, will violate any applicable Law, or will infringe or misappropriate the Intellectual Property Rights of any third party. Customer is solely responsible for the activities of any contractor, representative, or any of Customer’s agents or other persons acting on Customer’s behalf (e.g., third-party campaign management service) in connection with this Agreement (collectively, “Contractors”). Customer will ensure that its Contractors comply with all applicable Law, including Law related to data protection and privacy.
D. Prohibited Activities. In connection with the Ad Services, Customer agrees that: (a) the Ads, and Customer and Advertiser’s use of the Ad Services and Advertising Console, will comply with all applicable Law; (b) Ads will not contain, include, or link to content that violates the Ad Policies; (c) Customer will not, nor will Customer permit or encourage any third party to, use any means to generate fraudulent or invalid clicks or impressions; (d) Customer will not knowingly target Ads to children under age 13 (or any other applicable age threshold as defined by applicable Law, such as under age 16 in the European Economic Area) in connection with the Ad Services, and Customer will not knowingly collect, use, or disclose (or enable any third party to collect, use, or disclose) PII or EU Data from children under age 13 (or any other applicable age threshold as defined by applicable Law, such as under age 16 in the European Economic Area) in connection with the Ad Services; (e) Customer will not, as a result of its actions or inactions, deliver malware to the Advertising Console or to Users or devices through the Ad Services or on or through any Publisher Property or Destination; (f) Customer will not copy, modify, damage, translate, reverse engineer, decompile, disassemble, reconstruct, or create derivative works of the Ad Services; and (g) Customer will not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Ad Services, including the Advertising Console’s security measures and any activities conducted on our servers.
3. License to Customer Materials. Customer grants us a worldwide, non-exclusive, royalty-free, fully-paid, and sublicensable right and license to use the Customer Materials for the Ad Services; provided, however, that we will not alter any trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, or other source or business identifier protected or protectable under any laws that Customer provides to us via the Ad Services in non-text form and separate from any product-specific information or materials (“Customer Trademarks”) from the form provided by Customer (except to re-size to the extent necessary for presentation, so long as the relative proportions of such Customer Trademarks remain the same) and will comply with Customer’s removal requests as to specific uses of Customer Trademarks on the Amazon Site (provided Customer is unable to do so using standard functionality made available to it).
A. Fees. Customer agrees to pay us all applicable fees and charges we calculate for Customer’s use of the Ad Services (collectively, “Fees”). Customer agrees to and will comply with the Fees Policy. Fees are based solely on our measurements for the Ad Services and the applicable billing metrics (e.g., impressions or clicks). Customer understands that third parties may generate impressions or clicks on Ads for improper purposes, and Customer accepts this risk. We may require payment of (a) interest at the rate of 1.5% per month compounded monthly (19.56% compounded annually) or the highest legally permissible rate, whichever is lower, on all amounts not paid when due until all amounts are paid in full and (b) reasonable expenses and attorneys’ fees we incur in collecting late payments that are not disputed in good faith. For any past due amounts, we may seek payment or reimbursement from Customer by any lawful means. Customer waives all claims related to the Fees, unless made within 60 days after the date charged.
B. Fee Liability and Advertisers. Regarding Fees incurred on behalf of an Advertiser, Customer will be jointly and severally liable for payments of such Fees solely to the extent proceeds have cleared from Advertiser to Customer; provided that Customer is responsible for and will pay to us all Fees incurred as a result of Customer’s user error or exceeding Advertiser authority, including in specifying the Campaign Details. Customer will make every reasonable effort to collect and clear payment of Fees from Advertiser on a timely basis. Upon our request, Customer will confirm whether Advertiser has paid to Customer funds sufficient to make payments pursuant to this Agreement.
C. Agency Relationships. If Customer requests that Amazon invoice Customer, Customer represents and warrants that it acts as principal in purchasing Ad Services under this Agreement. To the extent that Customer acts on behalf of any advertiser client or Advertiser under this Agreement, Amazon may send invoices for Fees and make available any applicable Performance Data, Campaign Details, and Fee Data to the Advertiser or advertiser client to which it pertains. Customer will, upon our request, provide Amazon with contact information (including, legal name, address, phone number, and e-mail address) for the advertiser client or Advertiser on whose behalf Customer is acting.
5. Taxes. Customer agrees to and will comply with the Tax Policy.
6. Data; Privacy.
A. Ad Services Data. Customer may use Ad Services Data solely: (a) to plan and manage Campaigns exclusively through the Ad Services, (b) to evaluate the performance of the Ad Services only for its internal purposes, and (c) subject to Section 6.B, to provide Performance Data to the applicable Advertiser who purchased such Campaign. Customer may use and disclose Ad Services Data only as expressly permitted in this Section 6.A, and Customer will not, and will not permit any of its Affiliates, Contractors, or agents to, use or disclose (or enable any other third party to use or disclose) any Ad Services Data (including Performance Data) in any other way or for any other purpose, including for Repurposing. Notwithstanding the foregoing, Customer may disclose Ad Services Data to the extent required to comply with a valid and binding court order, law, or direction by a governmental or regulatory agency; provided, Customer must notify us prior to any such disclosure. All Ad Services Data is Amazon’s exclusive property.
B. Disclosed Data. Customer will ensure any Advertiser or Contractor or other third party to which Customer discloses or which otherwise receives or collects Ad Services Data is bound and abides by confidentiality obligations and use and disclosure restrictions at least as restrictive as those on Customer under this Agreement.
C. Injunctive Relief. Customer agrees that in the event of its breach of this Section 6 damages suffered by us will not be fully compensated in money damages alone and, accordingly, we will, in addition to all other available remedies, be entitled to injunctive relief against such breach without any requirement for posting any bond or undertaking.
D. EU Data. Customer agrees to and will comply with the EU Data Program Policy to the extent applicable.
7. Confidentiality. Customer will comply with the terms of any applicable nondisclosure agreement between Customer and Amazon (or an Amazon Affiliate) (“Customer NDA”). To the extent of any conflict between the Customer NDA and Section 6 of this Agreement, the provisions of Section 6 will govern. If no such nondisclosure agreement exists, for the term of the Agreement and 5 years after termination, Customer and its representatives will protect and keep confidential, except as otherwise expressly permitted under this Agreement, any information obtained from Amazon in connection with this Agreement or related to the Ad Services that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including all information relating to Amazon’s technology, Ad inventory availability, and targeting, audience, and pricing data).
8. Representations and Warranties.
A. By Customer Generally. Customer represents and warrants that: (i) if it is a business, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which the business is organized; (ii) it has all necessary rights, licenses, consents, and authorizations to enter into this Agreement on behalf of itself, to use the content contained in the Ads subject to this Agreement, including the Ad Policies, and to perform its obligations, exercise its rights, and grant the licenses granted under this Agreement; (iii) it and all of its subcontractors, agents, and suppliers will at all times comply with all Laws applicable to the performance of its obligations and exercise of its rights under this Agreement; (iv) it and its financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; (v) it will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported, or transmitted, any commodities, software, or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury, or Commerce, the European Union, or any other applicable government authority; and (vi) all information it provides to Amazon is true, accurate, and complete, and you will promptly update or correct that information if it changes.
B. By Customer Regarding Advertisers. Customer represents and warrants that: (i) it is authorized to act on behalf of, and has bound to this Agreement, each third party, if any, for which Customer advertises in connection with the Ad Services (“Advertiser”); (ii) this Agreement is enforceable against such Advertiser in accordance with its terms; and (iii) any references to Customer in this Agreement will also apply to Advertiser, as applicable. Customer will, upon our request, provide us written confirmation of the relationship between it and such Advertiser. If for any reason this Agreement is not enforceable against Advertiser, Customer is liable for performing any obligation that the Advertiser would have if this Agreement were enforceable against Advertiser. If Customer is using the Ad Services on its own behalf, Customer is deemed to be both Customer and Advertiser for such use.
C. By Amazon. The applicable Amazon Contracting Party represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which the Amazon Contracting Party is organized; (ii) it is lawfully able to enter into contracts.
A. By Customer. To the fullest extent permissible by Law, Customer will indemnify, defend, and hold harmless us, our Affiliates and Publishers, and each of our and their directors, officers, employees, agents, successors, and assigns against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) in connection with any third party claim, suit, action, demand, or judgment (“Claim”) arising from or in connection with: (a) Customer’s use of the Ad Services; (b) Customer’s actual or alleged breach of the Agreement, including the Ad Policies; (c) any Customer Materials, including any actual or alleged infringement or misappropriation of any Intellectual Property Right by any Customer Materials; or (d) fraud, intentional misconduct, gross negligence, or violation of publicity or privacy rights by Customer or its Contractors, subcontractors, agents, or suppliers in connection with this Agreement. Publishers are intended third-party beneficiaries of this Section 9.A to the extent permitted under applicable Law.
B. By Amazon. 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 in connection with delivery of Ad Services to you under this Agreement; or (b) allegations that the Advertising Console infringes or misappropriates that third party’s intellectual property rights.
C. Process. In connection with any Claim described in this Section 9, the indemnified party will (a) give the indemnifying party prompt written notice of the Claim (provided that any delay in notification will not relieve the indemnifying party of its indemnity obligations except to the extent that the delay impairs its ability to defend), (b) cooperate reasonably with the indemnifying party (at the indemnifying party's expense) in connection with the defense and settlement of the Claim, and (c) permit the indemnifying party to control the defense and settlement of the Claim to the extent permitted by applicable Law, provided that the indemnifying party may not settle the Claim without the indemnified party's prior written consent (which will not be unreasonably withheld or delayed), and provided further that the indemnified party (at its cost) may participate in the defense and settlement of the Claim with counsel of its own choosing. A party's duty to indemnify under this Section 9 is independent from its other obligations under this Agreement.
A. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CUSTOMER ACKNOWLEDGEs AND AGREEs THAT THE AD SERVICES, INCLUDING ALL TECHNOLOGY, TOOLS, SERVICES, SOFTWARE, FUNCTIONALITY, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE AD SERVICES, AND THE PUBLISHER PROPERTIES ARE PROVIDED “AS-IS.” CUSTOMER’S USE OF THE AD SERVICES IS AT ITS OWN OPTION AND RISK. WE DO NOT WARRANT THAT ANY PUBLISHER PROPERTY, THE ADVERTISING CONSOLE, OR ANY TECHNOLOGY, TOOLS, SERVICES, SOFTWARE, FUNCTIONALITY, MATERIALS, OR INFORMATION PROVIDED IN CONNECTION WITH THE AD SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE AVAILABLE, UNINTERRUPTED, DEFECT FREE, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
B. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM, AND CUSTOMER WAIVES ALL CLAIMS REGARDING, ANY GUARANTEES ABOUT TIMING, POSITIONING, ADJACENCY, PERFORMANCE, QUANTITY, OR QUALITY OF (AS APPLICABLE): THE AD SERVICES (INCLUDING RELATED TECHNOLOGY), ADS, Campaigns, AD PERFORMANCE, AD SERVICES DATA, TARGETING, REPORTING, AUDIENCE, OR FEES.
C. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NO PARTY MAKES, EACH PARTY AND ITS AFFILIATES DISCLAIM, AND THE OTHER PARTIES WAIVE ALL CLAIMS REGARDING: (A) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE AD SERVICES, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE.
11. LIMITATIONS OF LIABILITY.
A. EXCEPT WITH RESPECT TO ANY BREACH OR ALLEGED BREACH OF SECTION 6, AND TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER PARTY IS LIABLE, BASED ON CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY, TO THE OTHER PARTY OR ANY OTHER PERSON FOR (A) INDIRECT DAMAGES SUCH AS COST OF COVER, OR RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT; (B) ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA; OR (C) ANY PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.
B. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE, RESTRICT, OR MODIFY ANY RIGHT OR REMEDY CUSTOMER HAS IN STATUTE OR OTHERWISE TO THE EXTENT THAT RIGHT OR REMEDY CANNOT BE EXCLUDED, RESTRICTED, OR MODIFIED UNDER APPLICABLE LAW. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE AD SERVICES WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO AMAZON UNDER THIS AGREEMENT DURING THE 6-MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY FIRST AROSE.
12. Term and Termination; Survival.
A. The term of this Agreement begins upon Customer’s registration or use of the Ad Services and will end when terminated by any party (the “Term”). An Advertiser may only terminate the Agreement as it applies to them. Termination of the Agreement by or in respect of a Customer will however terminate the Agreement as it applies to all Advertisers the Customer represents.
B. Customer may terminate this Agreement immediately upon notice to us at any time. Amazon may terminate this Agreement for convenience with 15 days’ advance notice.
C. Without limiting Amazon’s right under Section 1, Amazon may suspend or terminate Customer’s use of the Ad Services if: (a) Customer materially breached the Agreement and failed to cure within 7 days of a cure notice unless we consider that your breach could expose us to risk or liability towards a third party, in which case we are entitled to reduce, or waive the aforementioned cure period at our reasonable discretion; (b) Customer’s Advertising Console account has been, or our controls identify that it might be used for deceptive, fraudulent, or illegal activity; or (c) Customer’s use of the Ad Services has harmed or, our controls identify that it might harm other customers or advertisers, or Amazon.
D. This Agreement will terminate immediately upon (a) termination of the Ad Services in accordance with Subsections B or C; (b) the institution by or against Customer of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of its debts, (c) Customer’s making an assignment for the benefit of creditors, or (d) Customer’s dissolution or ceasing to do business. For avoidance of doubt, termination or cancellation of an IO does not terminate this Agreement. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will end; provided that Customer will promptly pay us any unpaid Fees accrued in connection with the Ad Services as of the date of termination and, if any, all interest thereon and costs of collection. Sections 2, 3, 4.A-B (including the Fees Policy) (until all Fees incurred prior to the effective date of termination are paid), 4.C, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of this Agreement will survive termination or expiration of this Agreement for any reason; provided, further, that the terms of this Agreement shall survive and apply to any IOs outstanding as of the effective date of termination (and which will terminate in accordance with their own terms). Any Ad Policies that expressly survive by their terms will also survive termination of this Agreement.
A. Entire Agreement; Severability. This Agreement, together with the Ad Policies, any IO, and any Customer NDA, represents the entire agreement among the parties with respect to the subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings; provided, however, if Customer has entered into a separate agreement with Amazon regarding Customer’s use of a particular Amazon ad product (e.g., an insertion order subject to IAB 3.0 for a display ad buy) that has not been replaced by this Agreement, the terms of that separate agreement will govern Customer’s use of that Amazon ad product (and such use of that Amazon ad product only) for the specific purchase described in such agreement unless and until replaced by this Agreement. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
B. Modification. We will provide at least 15 days’ advance notice in accordance with Section 13.G for changes to this Agreement. However, we may change or modify this Agreement at any time with immediate effect (a) for legal, regulatory, fraud, and abuse prevention or security reasons; (b) to change existing features or add additional features to the Ad Services or Advertising Console. We will notify you about any change or modification in accordance with Section 13.G. Your continued use of the Ad Services or Advertising Console after the effective date of any change to this Agreement will constitute your acceptance of that change. If any change or modification is unacceptable to you, your only recourse is to terminate this Agreement in accordance with Section 12.
C. Waiver. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
D. Governing Law; Disputes; Venue.
The Governing Laws, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between Amazon and Customer or Advertiser in connection with the Ad Services. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. If the Elected Country is United Kingdom, France, Germany, Spain, or Italy, Amazon, Customer, and Advertiser each submit to the non-exclusive jurisdiction of the Governing Courts. If the Elected Country is Japan, Amazon, Customer, and Advertiser each consent that any dispute or claim relating in any way to this Agreement or the Ad Services will be adjudicated in the Governing Courts, and Amazon, Customer, and Advertiser each consent to exclusive jurisdiction and venue in the Governing Courts. If the Elected Country is India, Amazon, Customer, and Advertiser each consent that any dispute or claim (including differences or questions of any nature) relating in any way to this Agreement (including its construction, meaning, interpretation, or effect hereof or as to rights or liabilities of the parties) or the Ad Services will be referred to the sole arbitrator appointed by Amazon. Such arbitration will be conducted in accordance with the provisions of the India Arbitration and Conciliation Act, 1996 (“Arbitration Act”). The parties agree to have their disputes resolved by the fast track procedure specified in the section 29 B of the Arbitration Act. Such arbitration proceedings will be conducted in English; the venue of the arbitration will be in Delhi, India; and the courts at Delhi, India shall have the exclusive jurisdiction for all such arbitral application. If the Elected Country is United Arab Emirates, Amazon, Customer, and Advertiser each consent that any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement with Amazon or its Affiliates, including your use of the Ad Services, any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it, shall be referred to and finally resolved by arbitration under the Dubai International Financial Centre – London Court of International Arbitration (“DIFC-LCIA”) Arbitration Rules as amended from time to time. The number of arbitrators shall be one, to be appointed in accordance with the DIFC-LCIA Arbitration Rules. The seat or legal place of arbitration shall be the Dubai International Financial Centre. The language used in the arbitral proceedings shall be English. If the Elected Country is any country other than United Kingdom, France, Germany, Spain, Italy, India, Japan or United Arab Emirates, Amazon, Customer, and Advertiser each consent that any dispute or claim relating in any way to this Agreement or the Ad Services will be resolved by binding arbitration as described below in this paragraph, rather than in court, except that (i) Customer and Advertiser may assert claims in a small claims court that is a Governing Court if such claims qualify and (ii) any party may bring suit in the Governing Courts, submitting to the jurisdiction of the Governing Courts and waiving all parties’ respective rights to any other jurisdiction, to enjoin infringement or other misuse of Intellectual Property Rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, Customer or Advertiser, as applicable, must send a letter requesting arbitration and describing its claim to our registered agent, Corporation Service Company, 2711 Centreville Road, Suite 400, Wilmington, DE 19809. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees (but not attorneys’ fees) for claims seeking exclusively monetary relief of less than $10,000, unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The expedited procedures of the AAA’s rules will apply only in cases where the claimant seeks exclusively monetary relief of less than $50,000, and such procedures will not apply in any case where any party seeks injunctive or nonmonetary relief; in expedited cases, the hearing must be scheduled to occur within 90 days of the arbitrator’s appointment. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at a mutually agreed location in the Elected Country. Amazon, Customer, and Advertiser each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration Amazon, Customer, and Advertiser each waive any right to a jury trial. Amazon, Customer, and Advertiser all agree that any party may bring suit in court to enjoin infringement of intellectual property rights; the parties also agree that we may bring suit in court to enjoin your fraudulent or illegal activity.
E. Assignment; Successors. Customer may not assign this Agreement without our prior written consent. We may (a) perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates and (b) assign this Agreement to an Affiliate or in connection with any merger, reorganization, sale of all or substantially all of Amazon’s assets, or any similar transaction. Subject to the limitations in this paragraph, this Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns.
F. Relationship of Parties; Non-Exclusivity; Reservation of Rights. Each party is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship among the parties. Customer will not have any authority to make or accept any offers or representations on our behalf. Except as expressly set forth in this Agreement, nothing in this Agreement or the performance thereof, or that might otherwise be implied by Law, will grant Customer any right, title, or interest, implied or otherwise, in or to the Intellectual Property Rights of Amazon. Amazon expressly reserves all Intellectual Property Rights not expressly granted hereunder. Without limiting the generality of the foregoing, Amazon retains ownership of the Ad Services. Nothing in this Agreement will prevent or impair Amazon’s right to use Customer Materials without Customer’s consent to the extent that such use is allowable without a license from Customer under applicable Law (e.g., fair use under United States copyright law or referential use under trademark law) or is allowable under a valid license from Customer under a separate agreement or from a third party.
G. Notices. We may provide any notice under this Agreement to Customer by (i) posting a notice on the Advertising Console, (ii) sending a message to the email address then associated with Customer’s Advertising Console account, (iii) mailing a notice to the address as provided in the applicable IO, or (iv) by other similar means. It is Customer’s responsibility to keep its email address current. We may also communicate with Customer electronically and in other media, and Customer consents to such communications regardless of any “E-mail Preferences” (or similar preferences or requests) Customer may have indicated on the Amazon Site or by any other means. Customer must send us all notices under this Agreement by using the tools Amazon makes available to Customer on the Advertising Console (e.g., “Contact Us”) or by certified mail to the address as provided in the applicable IO.
H. Interpretation. Whenever used in this Agreement, unless otherwise specified: (a) the terms “includes,” “including,” “e.g.,” “for example,” “for instance,” “such as,” and other similar terms are deemed to include the term “without limitation” immediately thereafter; (b) the phrases “we may,” “we will determine,” and other similar terms mean Amazon may decide the applicable matter in its sole discretion; and (c) any websites referred to will be deemed to also refer to any successor or replacement websites. The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement. In the event of any conflict among the Ad Policies, an IO, and this Agreement, (i) to the extent of the conflict, the IO will prevail over the Agreement and the Ad Policies solely with respect to the Campaigns included on the IO; and (ii) to the extent of the conflict, the Ad Policies will prevail over the Agreement. It is the express wish of the parties that this Agreement, including the Ad Policies, have been drafted in English. (The following is a French translation of the preceding sentence: À la demande expresse des parties, la présente convention et les politiques relative à la plateforme ont été rédigées en anglais.) The English-language version of this Agreement, including the Ad Policies, is the definitive legal version. Translations may be available for ease of reference only.
I. Suggestions and Other Information; Force Majeure. Customer may elect to provide suggestions, ideas, or other feedback (“Suggestions”) to us in connection with the Ad Services (including any related technology or content). We will be free to exercise all rights in such Suggestions without restriction and without compensating Customer. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity of our business and systems, we may access and disclose any information we consider appropriate, including User contact details, IP addresses and traffic information, usage history, and posted content. From time to time, we may make suggestions on using the Advertising Console or for Customer’s Ads or Campaigns; Customer is solely responsible for any actions it takes based on our suggestions. We will not be liable for any delay or failure to perform any of our obligations under this Agreement where the delay or failure results from any cause beyond our reasonable control.
J. Conflict of Laws. To the extent that the Elected Country is the United Arab Emirates, notwithstanding anything to the contrary herein, nothing in this Agreement shall, or shall be interpreted or construed to, induce or require any 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 this Agreement.
Definitions. As used in this Agreement, the following terms have the following meanings:
“Ad” means any advertisement or promotional content in any form, including text-based, graphical, interactive, mobile, video, audio, or rich media, and all included copy and creative content, trademarks contained therein, and related technology.
“Ad Policies” means the policies, guidelines, specifications, and other information regarding use of the Ad Services (including creative acceptance policies, product terms, technical specifications, and policies regarding technology providers) made available by Amazon on the Advertising Console (as updated from time to time).
“Ad Services Data” means Performance Data, Site Data, and all other data provided, made available, or collected (including by Contractors) in connection with the Ad Services, excluding Campaign Details, Fee Data, and any data that Customer would have lawfully had without its participation in the Ad Services.
“Advertising Console” means our online user interfaces and related tools and systems we make available to Customer in connection with the Ad Services.
“Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity.
“Amazon Contracting Party” means (a) Amazon Advertising LLC, or, if Customer is a seller under the Amazon Services Business Solutions Agreement, Amazon.com Services LLC, as applicable, to the extent the Elected Country is the United States, (b) Amazon Online France SAS, to the extent the Elected Country is France, (c) Amazon Online Germany GmbH, to the extent the Elected Country is Germany, (d) Amazon Online Italy S.r.l., to the extent the Elected Country is Italy, (e) Amazon Online Spain S.L.U., to the extent the Elected Country is Spain, (f) Amazon Online UK Limited, to the extent the Elected Country is the United Kingdom or any other country located in Europe, except France, Germany, Italy, or Spain, (g) Amazon Japan G.K., to the extent the Elected Country is Japan, (h) Amazon Advertising Canada, Inc., or, if Customer is a seller under the Amazon Services Business Solutions Agreement, Amazon Services International, Inc., as applicable, to the extent the Elected Country is Canada, (i) Amazon Seller Services Private Limited, to the extent the Elected Country is India, (j) Servicios Comerciales Amazon México, S. de R.L. de C.V, to the extent the Elected Country is Mexico, and (k) Souq.com FZ LLC, to the extent that the Elected Country is the United Arab Emirates.
“Amazon EU Data” means EU Data that Amazon collects, uses, or otherwise “processes” (as defined in the GDPR) pursuant to this Agreement.
“Amazon Site” means the applicable Amazon website, the primary home page of which is identified by the url: www.amazon.com, www.amazon.ca, www.amazon.com.mx, www.amazon.co.uk, www.amazon.de, www.amazon.fr, www.amazon.es, www.amazon.it, www.amazon.in, www.amazon.co.jp, or www.amazon.ae, including any subdomain of such website.
“Campaign” means any Ad campaign or other promotional activity purchased or managed by Customer through the Ad Services.
“Campaign Details” means details entered into or provided by Customer through the Advertising Console or an IO regarding a Campaign, including the types and amounts of deliverables (e.g., impressions or clicks), Campaign date information, Campaign budget information, Ad description, Ad placement information, Ad targeting information, and other Ad trafficking or bidding information.
“COPPA” means the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506), as amended, and any rules and regulations promulgated thereunder.
“Customer Materials” means all Ads, Campaign Details, Fee Data, technology, any Customer Trademarks or other trademarks, copyrightable works under applicable Law, information, data, photographs, images, videos, and any other materials and items provided or made available by Customer or its Affiliates to Amazon or its Affiliates under this Agreement or through the Advertising Console. For avoidance of doubt, the term “technology” as used in this definition does not include the product or service being advertised or promoted through the Ad Services.
“Destination” means the content or properties to which an Ad links or directs a viewer (e.g., landing pages).
“Elected Country” means a country for which Customer registers for or uses the Ad Services.
“EU Data” means “personal data” within the meaning of applicable Laws of the European Economic Area, including the GDPR.
“Fee Data” means any data regarding the fees Customer may charge Advertisers.
“GDPR” means the European General Data Protection Regulation (Regulation (EU) 2016/79) and any implementation or successor thereof.
“Governing Courts” means the applicable one of the following: (i) the state or Federal courts in King County, Washington, United States if the Elected Country is the United States, Canada, Mexico, or any other country other than United Kingdom, France, Germany, Spain, Italy, India, or Japan; (ii) the courts of the district of Luxembourg City, Luxembourg if the Elected Country is United Kingdom, France, Germany, Spain, or Italy; or (iii) the Tokyo District Court if the Elected Country is Japan.
“Governing Laws” means the applicable one of the following: (i) the laws of the State of Washington, United States, together with the U.S. Federal Arbitration Act and other applicable U.S. federal law if the Elected Country is the United States, Canada, Mexico, or any other country other than United Kingdom, France, Germany, Spain, Italy, India, Japan, or United Arab Emirates; (ii) the laws of the Grand Duchy of Luxembourg if the Elected Country is United Kingdom, France, Germany, Spain, or Italy; or (iii) the laws of India if the Elected Country is India; (iv) the laws of Japan if the Elected Country is Japan; or (v) the laws of the Dubai International Financial Centre if the Elected Country is the United Arab Emirates.
“Intellectual Property Rights” means any patent, copyright, trademark (and the goodwill represented thereby), moral right, trade secret right, and any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation, or infringement of any of the foregoing.
“Laws” means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or provincial level, as applicable) of competent jurisdiction, including laws relating to advertising, the Internet, privacy (including COPPA, Consumer Protection Act (Quebec), the Personal Information Protection and Electronic Documents Act and any EU privacy/data protection directives and regulations of the European Parliament (including the GDPR and Directive 2002/58/EC of the European Parliament) and any implementation of such directives by any member state of the European Union into national law), The Act against Unjustifiable Premiums and Misleading Representations of Japan, Mexican data privacy law, and unfair business practices.
“Performance Data” means any data regarding the performance of an Ad or Campaign under this Agreement, gathered during delivery of such Ad or Campaign, or provided by the Advertising Console in connection with delivery of an Ad or Campaign (including the total number of impressions served, the total number of clicks on such impressions, and whether a User viewed or clicked on an Ad (i.e., User-level data)), but excluding Site Data and Campaign Details.
“PII” means data which, alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, can be used to identify, contact, or precisely locate an individual, including the individual’s name, initials, date of birth, address, telephone number, e-mail address, financial account number, or government-issued identifier. In the context of Ads directed to Users located in Japan, “PII” also includes personal information within the meaning of Articles 2.1 and 2.2 of the Personal Information Protection Law of Japan, as amended, and any implementation of such laws in guidelines, orders, or directives issued by applicable competent authority including the Personal Information Protection Committee. In the context of Ads directed to Users located in Canada, “PII” means “personal information” as defined under the Personal Information Protection and Electronic Documents Act and substantially similar provincial legislation. PII does not include EU Data.
“Publisher” means an entity or person that has Ad placements available through the Ad Services, which may include Amazon or its Affiliates.
“Publisher Property” means a website, application, device, or other online point of presence or physical point of presence containing Ad placements made available by a Publisher for purchase or delivery through the Ad Services.
“Repurposing” means (a) retargeting a User or device, (b) creating, supplementing, or appending to a profile of a User or device, or (c) identifying any User or device, except in each case for purposes of frequency capping or geo-targeting.
“Site Data” means any data that is (a) our preexisting data used or made available by us or our Affiliates through the Ad Services, including our Ad pricing information, Ad placement supply cost and inventory data, and targeting and audience data, (b) gathered during delivery of an Ad or Campaign that identifies or allows identification of us, any User or device, our Affiliates, any Publisher Property, or a Publisher Property’s brand, content, context, or Users as such, or (c) collected regarding Users or devices on any Publisher Property other than Performance Data.
“User” means a user of any website, portal, browser, device, application, or other online service.