The Amplifier Terms of Service

(January 2017)

Please read these Terms of Service (these “Terms”) and our Policies (as defined in Section 1.3) carefully before using any of the Services (as defined in Section 1).  By using or accessing the Services, you ("Client" or "you") agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization, and you are representing to Amplifier that you have the authority to bind that organization to these Terms (in which case, “you” or “Client” will refer to the organization).

If you do not agree to all the terms and conditions of these Terms and the applicable Policies, you should not, and are not permitted to, use the Services. These Terms and the Policies form a contract between you and Copernica, Inc. d/b/a Amplifier that defines and governs your use of and access to the Services (as defined below in Section 1).  You may use the Services only in compliance with these Terms and the Policies and only if you have the power and right to form a contract with Amplifier. You may not use the Services unless you are 18 years old or older. Amplifier will only knowingly provide the Services to parties that can lawfully enter into and form contracts under applicable law. The Services also require that you have a valid, active credit card on file with Amplifier.

 

1.  Accounts, Services, and Policies

1.1  Accounts.

As a condition to using certain of the Services, you are required to create an account (an "Account") with Amplifier, to select a password and provide identifying information about you and about your products (“Registration Information”). You agree to provide Amplifier with accurate, complete and updated Registration Information, particularly your email address. You are also responsible for maintaining the confidentiality of your Account password and for the security of your Account as well as for all activities that occur under your password(s) or Account(s) or as a result of access to the Account(s) by any other users you authorize to access your Account. You will notify Amplifier immediately of any actual or suspected loss, theft or unauthorized use of your Account or Account password. Access to, and use of, the Account is restricted to authorized users only. Amplifier shall not be liable for any unauthorized use of your Account.

 

1.2  Services.

You can select Services through your Account. Certain Services may require a particular Account Plan, and requesting these Services will automatically upgrade your Account Plan to the appropriate plan, per the Pricing page. Amplifier will perform the selected Services for Accounts in good standing. Under these Terms, “Good Standing” means that you are not in breach of these Terms and that the Account balance is equal to or greater than the Minimum.

Subject to your compliance with these Terms and all applicable Policies, Amplifier shall perform the Services as selected and authorized by you in your Account. For purposes of these Terms, “Services” means the Amplifier products and services and any other features, software, technologies and/or functionalities offered by Amplifier and ordered by you through your Account pursuant to an order placed with Amplifier (an “Amplifier Services Order”). Any and all Amplifier Services Orders are deemed incorporated into, and governed by, these Terms.

 

1.3  Client Policies and the Use of the Services. 

The Amplifier policies (collectively, the “Policies”) listed in the Support section of Amplifier.com govern your use of the Services and are hereby incorporated by reference. For clarity, these Terms shall control in the event of any conflict or inconsistency between these Terms and any of the Policies. These Policies cover topics included but not limited to Accounts; Fees; Item Eligibility; Restricted Activities; Receiving and Storage; Shipping; Order Conveyance; Production; Projects; and Customer-support Services.

Your breach of these Terms or any applicable Policy will excuse Amplifier’s performance of the Services and may result in your incurring additional fees from Amplifier or third parties.

 

2. Usage Fees and Balances.

Unless otherwise stated, Amplifier specifies all dollar amounts under these Terms in US dollars.

 

2.1 Account Balances. 

Your Account must be funded at or above the Minimum Balance (“Minimum”), which Amplifier may set, in order to receive Services. Immediately on notice to you, Amplifier may raise or lower your Account Minimum.

 

The funds you maintain in your Amplifier Account comprise your “Account Balance”. Amplifier will deduct from your Account Balance charges for Services as they are incurred. Amplifier reserves the right to request deposits and/or enforce minimum Account Balances prior to performing Services (e.g. purchasing blank inventory, receiving third-party inventory or fulfilling orders) to help cover the related costs. Amplifier reserves the right to hold the Minimum or your Account Balance for up to 90 Days in the event that your Account is closed for any reason.

 

2.2  Estimates. 

Usage Fees and final rates will be based on the actual costs of the work performed. Quotes and estimates for Services and Usage Fees (as defined in Section 2.3) are estimates based on information available at that time. They are subject to change and shall not be binding upon Amplifier. Amplifier specifically disclaims liability for any rate errors due to inaccurate or incomplete information.

 

2.3   Usage Fees. 

Usage Fees” are the fees for any Services and any third-party fees (including but not limited to merchandise production fees, fulfillment fees, shipping fees, carrier fees, customer-service fees, rates of duty, freight charges, storage charges, or other charges incurred during your use of the Services) ordered through your Account and any special or additional fees assessed against your Account as permitted in these Terms or any applicable Policy. You agree to pay Usage Fees for Services and any third-party fees (including but not limited to carrier fees, freight charges, production blanks, etc.) ordered through your Account or performed per these Terms and the Policies. Usage Fees for Services are billed to the period in which the applicable Services are performed. Usage Fees are subject to change without notice.

 

2.4   Monthly Fees. 

You agree to pay the Monthly Fees associated with your particular Account Plan, which is driven by the Services you select, per the Pricing Page. Monthly Fees and Account Plans are subject to change without notice.

 

2.5  Disputes. 

Please contact Amplifier immediately to dispute a charge or a change related to your Account Balance. If you disagree with any Usage Fees, you must submit a written dispute notice to Amplifier within 60 days of the fee being assessed. Amplifier has no obligation to review dispute notices after this 60-day period.

 

2.6  Lien. 

You agree that Amplifier has a lien against the inventory and on the proceeds thereof for all Usage Fees as well as any reasonable expenses incurred by Amplifier for the preservation of the inventory or its sale pursuant to law.  By agreeing to these Terms you hereby grant such a lien to Amplifier and authorize Amplifier to file any and all UCC-1 or other filings necessary or appropriate to perfect such a lien.

 

2.7 Abandoned Account. 

Please keep your Registration Information current. Please maintain an adequate Minimum Balance and pay Usage Fees on time to keep your Account current. Promptly share any Account questions or disputes per these Terms. If Usage Fees remain unpaid for more than 30 days, then Amplifier may at its sole discretion classify your Account as Abandoned. Any account that has unpaid Usage Fees for 60 days will automatically be classified as Abandoned. An Abandoned Account forfeits rights to inventory, which will become immediately and irrevocably unavailable to you and may be liquidated immediately, free and clear of any liability, with you having no right to any liquidation proceeds while also remaining liable for any Usage Fees in excess of the liquidation proceeds.

 

2.8  Taxes. 

You are solely responsible for identifying and resolving sales and use tax collection issues for product orders, including the necessity of charging and collecting such taxes. You agree to pay all transaction-related taxes, where applicable, charged by Amplifier to you. In addition, if you are engaged in business in Texas, you must have a Texas resale certificate on file with Amplifier.

 

3.  Closing Accounts and Termination. 

3.1   Closing Accounts

At any time you may close your Account by contacting Amplifier Client Service and following their instructions.

 

3.2   Termination with 60 days’ notice. 

Amplifier may terminate an Account for any reason upon 60 days’ notice (“Termination Notice Period”), which Amplifier shall email to you via the email address included in your Registration Information.

During the Termination Notice Period, you may have full or limited use of your Account so that you may utilize existing inventory before Amplifier ships it to you or your designated third party. If inventory remains after the Termination Notice Period, Amplifier will ship it at your expense to the address included in your Registration Information or liquidate it if no address is available.

 

3.3  Immediate termination. 

Notwithstanding the foregoing, Amplifier may, in its sole and complete discretion, immediately terminate these Terms and cease providing any or all of the Services if:

  • Amplifier concludes that Client is engaged in illegal activities or the sale of illegal goods or services;
  • Client has become the subject of a government complaint or investigation of any kind;
  • Client is in any way connected with the transmission of “junk mail,” “spam” or the unsolicited mass distribution of e-mail, or with any unethical marketing practices;
  • Client ignores a warning of misuse of the Services; or
  • Client violates these Terms, any Policy or any other condition of use.

Any termination under this Section 3.2 shall take effect immediately. In the event of immediate termination, Amplifier will immediately close your Account and at your expense ship remaining inventory to the billing address listed in your Account’s Registration Information. Inventory may be liquidated if no address is available in your Registration Information.

 

3.3   Other Rights. 

The rights of the parties to terminate these Terms are not exclusive of any other rights and remedies available at law or in equity, and such rights shall be cumulative. The exercise of any such right or remedy shall not preclude the exercise of any other rights and remedies.

 

3.4 Effects of Termination. 

If you or Amplifier terminates your use of the Service, Amplifier may delete any content or other materials relating to your use of the Services on Amplifier’s servers or otherwise in its possession, and Amplifier will have no liability to you or any third party for doing so.

 

3.5  Survival. 

This Section 3.5 and Sections 1.3, 2, 4, 6, 7, 8, 9, 10 and 12 will survive any termination of these Terms.

 

4.  Intellectual Property.

4.1 Client Property. 

No rights will be derived by Amplifier in any of Client’s patents, trademarks, designs, know-how or any other industrial right to any Client product now or in the future (collectively, “Client Property”), and any such rights shall remain the property of Client. Materials Client provides under any Amplifier Services Orders shall be deemed “Client Property” under these Terms.

 

4.2  Amplifier Property. 

No rights will be derived by Client in any of Amplifier’s patents, trademarks, trade secrets, logos, designs, ideas, web site, processes, methodology for the provision of the Services, Developer Tools (as defined in Section 5.2), know-how, materials, or any other industrial right to any Amplifier product or service now or in the future (collectively, the “Amplifier Property”), and any such rights shall remain the property of Amplifier. Any rights not expressly granted herein to the Amplifier Property shall be retained by Amplifier. You acknowledge that all right, title, and interest to the Amplifier Property is owned by Amplifier.

 

4.3  Additional Restrictions. 

Other than as permitted herein, you shall not (and you shall not permit others), directly or indirectly, to modify, translate, decompile, disassemble, or reverse engineer any part of the Amplifier Property, or otherwise to attempt to discern the functioning or operation of the website or Services; or to copy, distribute, lease, rent, or otherwise transfer any or the rights that you receive hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Amplifier and you shall not copy, imitate, or use them without our express prior written consent. You shall not (and you shall not permit others to): (i) use any robot, spider, scraper or other automated means to access the Amplifier website or Services for any purpose without Amplifier’s express written permission, (ii) interfere or attempt to interfere with the proper working of our website or any activities conducted on the website, or (iii) bypass any measures Amplifier may use to prevent or restrict access to the Amplifier website or the Services. Any action or use that indirectly or directly encourages or helps a third party to engage in the above mentioned prohibited uses also violates these Terms.

 

4.4  Trademark License. 

During the term of these Terms, Client hereby grants to Amplifier a limited, revocable, non-exclusive license to use any and all of the trademarks, logos, or artwork owned by or licensed to Client and provided by Client to Amplifier (collectively, the “Licensed Marks”) solely in conjunction with the performance of the Services. No other licenses, express or implied, under any intellectual property rights are granted by you to Amplifier under these Terms.Client further hereby grants Amplifier the right to use Client’s name and logo on Amplifier’s website and for other marketing materials.

 

4.5  Trademark Representation and Warranty.

Client represents and warrants to Amplifier that it is authorized to grant the aforementioned trademark licenses and that it shall fully indemnify and hold Amplifier and its affiliates harmless against any and all claims by a third party alleging a violation of such third party’s intellectual property or other proprietary rights in connection with Amplifier’s use of the Licensed Marks pursuant to the trademark license in Section 4.4 or these Terms or any applicable Policy. The indemnification granted under this Section 4.5 expressly includes indemnification with respect to reasonable attorneys’ fees and any and all expenses and costs incurred or amounts paid in settlement or in satisfaction of any judgment or award.

 

5.  Developers and API License.

 

5.1  Third Party Software. 

Your use of any third party software application (“Third Party Software”) related to the Services, to connect to the Services, or on the Amplifier website is solely subject to any third party software provider software licenses. Amplifier does not control, own, or have any liability or responsibility for any Third Party Software.

 

5.2 License Grant. 

If you are using an Amplifier API (application programming interface) or other Amplifier software or developer tools (“Developer Tools”), then Amplifier grants you a revocable, non-exclusive, non-transferable license to use the Developer Tools for your internal business purposes only and in accordance with any documentation. Amplifier provides the Developer Tools solely on an “AS IS” basis and disclaims all warranties and liability for your use of the Developer Tools. Amplifier may change or discontinue any Developer Tools in its reasonable discretion. You may not rent, lease or otherwise transfer your rights in the Developer Tools to any third party.

 

6.  Confidentiality.

 

6.1 General. 

As used herein,“ Confidential Information” means (i) the terms and provisions of these Terms and any related documents delivered concurrently herewith, and (ii) all computer hardware, all software, all data, reports, analyses, compilations, studies, interpretations, forecasts, records and other materials (in whatever form maintained, whether documentary, computer storage or otherwise) that contain or otherwise reflect information concerning Client, Amplifier, any of their respective subsidiaries or affiliates, or any portion thereof, that one party or its Agents may provide to the Receiving Party (as defined below) or its Agents (as defined below) in connection with these Terms (“Provided Information”), together with data, reports, analyses, compilations, studies, interpretations, forecasts, records or (iii) other materials (in whatever form maintained, whether documentary, computer storage or otherwise) prepared by the Disclosing Party (as defined below) receiving Provided Information or its Agents that contain or otherwise reflect or are based upon, in whole or in part, any Provided Information or that reflect the review of, interest in, or evaluation of all or any portion of the transactions contemplated by these Terms and any related documents delivered concurrently herewith (“Derived Information”). As used herein, “Agents” means, collectively, the respective directors, employees, controlling persons or attorneys of Client or Amplifier. As used herein, the term “person” shall be broadly interpreted to include, without limitation, any corporation, partnership, trust or individual; the term “Receiving Party” shall mean the person receiving Provided Information; and the term “Disclosing Party” shall mean the person providing Provided Information.

 

6.2 Acknowledgment. 

Client and Amplifier hereby acknowledge and agree that all Confidential Information shall be kept confidential and shall not, without the prior written consent of the Disclosing Party, be disclosed by the Receiving Party in any manner whatsoever, in whole or in part, other than to the Disclosing Party’s Agents, and shall not be used, directly or indirectly, for any purpose other than in connection with these Terms. Moreover, Client and Amplifier agree to reveal Confidential Information only to their Agents if and to the extent that such Agents (i) have a strict need to know such Confidential Information for the purpose of the Receiving Party satisfying its obligations under these Terms and (ii) are informed of the confidential nature of the Confidential Information. Client and Amplifier shall each be responsible for any breach of these Terms or any applicable Policy by their respective Agents (including Agents who, subsequent to the first date of disclosure of Confidential Information hereunder, become former Agents). Moreover, Client and Amplifier shall take all reasonably necessary measures to restrain their respective Agents (and former Agents) from unauthorized disclosure or use of the Confidential Information.

 

6.3 Exceptions. 

Notwithstanding anything in these Terms to the contrary, Confidential Information shall not include any information which:

(a) at the time of disclosure to the Receiving Party is generally available to and known by the public (other than as a result of any disclosure made directly or indirectly or other action or inaction by the Receiving Party);

(b) becomes publicly available in the future (other than as a result of a disclosure made directly or indirectly or other action or inaction by the Receiving Party);

(c) was available to the Receiving Party or its Agents on a non-confidential basis from a source other than the Disclosing Party or any of its subsidiaries or affiliates or any of their respective Agents providing such information (provided that to the Receiving Party’s knowledge, such source was not bound to maintain the confidentiality of such information); or

(d) has been independently acquired or developed by the Receiving Party without violating any of its obligations under these Terms.

 

In the event that a party or any of such party’s Agents become legally compelled to disclose any of the Confidential Information of the other party, that party or person under the legal compulsion (the “Compelled Party”) from whom such information is being sought shall, unless prohibited by law, provide the party to whom such Confidential Information belongs with prompt prior written notice of such requirement so that it may seek a protective order or other appropriate remedy, or both, or waive compliance with these Terms. In the event that such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the Compelled Party agrees to furnish only such portion of the Confidential Information that the Compelled Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding the foregoing, to the extent required under applicable state and federal securities laws, either party may file these Terms as an exhibit with federal and state securities filings, provided that each party shall use its best efforts to obtain confidential treatment of the portions of these Terms that contain Confidential Information. In this regard, the party making such filing shall obtain the prior written consent of the other party, which consent shall not be unreasonably withheld.

 

6.4 Use of Confidential Information. 

Each party shall be subject to the obligations under this Section 6 until the expiration of three years following the termination of these Terms. Other than as specifically provided in these Terms, neither party shall duplicate the Disclosing Party’s Confidential Information for any purpose other than for the performance of its obligations under these Terms and for the benefit of the Disclosing Party or use the Disclosing Party’s Confidential Information for any reason or purpose other than as expressly permitted in these Terms.

 

6.5  Return of Confidential Information. 

Upon termination of these Terms or if either party so requests, the Receiving Party shall return to the Disclosing Party or destroy all copies of the Confidential Information in its possession and the possession of its Agents and will destroy all copies of any Derived Information; provided, however, that these Terms will continue to apply to the Confidential Information and/or Derived Information contained or reflected in such copies.

 

6.6.  Remedies. 

The Parties agree that Client and Amplifier would be irreparably injured by a breach of these Terms by the other party or its Agents and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 6. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section 6 by either party or their Agents, but shall be in addition to all other remedies available at law or in equity.

 

7.  Indemnification.

Subject to the limitations specified in Sections 8 and 9 of these Terms, Client shall indemnify, hold harmless and defend Amplifier and each person or entity that is a stockholder, officer, director, partner, employee, affiliate or agent of Amplifier from and against any and all losses, claims, actions, damages, liabilities, whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement (each, a “Claim”), incurred or suffered by any such person or asserted by any federal, state, or local governmental or regulatory body arising out of or in connection with: (i) Client’s failure to comply with any applicable laws, regulations or requirements of the Federal Trade Commission, the Food and Drug Administration or any other local, state or federal agency which might have jurisdiction over Client’s products or sales transactions, (ii) Client’s obligations or dealings with or to any third party, agent or customer of Client, (iii) any Claim that the products provided to Amplifier under these Terms infringe any intellectual property right of a third party, or (iv) any Claim relating to the products provided to Amplifier under these Terms (A) involving a product liability or similar claim or (B) resulting from alleged defects or other problems with such products. To qualify for the defense and indemnification rights set forth above, Amplifier must (i) give Client notice of the relevant Claim; (ii) cooperate with the Client in the defense of such Claim; and (iii) give Client the right to control the defense and settlement of any such Claim. Amplifier may participate in the defense with counsel of its choice at its own expense.

 

8.   Disclaimer.

8.1  AS IS. 

WHILE, AMPLIFIER WILL ENDEAVOR TO PROVIDE THE SERVICES IN ACCORDANCE WITH THESE TERMS, THE SERVICES AND THE AMPLIFIER WEB SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AMPLIFIER AND AMPLIFIER’S SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT FOR THE SERVICES, THE AMPLIFIER WEB SITE AND ANY THIRD PARTY SERVICES. THE USE OF THE SERVICES, AMPLIFIER WEB SITE, OR THIRD PARTY SERVICES IS AT YOUR OWN RISK.

 

8.2  No Continuous Access. 

Amplifier does not guarantee secure, continuous, or uninterrupted access to the Amplifier Service. Many factors outside our control may interfere with the operation of the Amplifier Services. While Amplifier will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner, Amplifier makes no representations or warranties regarding the amount of time needed to complete such processing.

 

9.  Limitations on Liability.

 

9.1  LIMITATIONS ON LIABILITY. 

IN NO EVENT SHALL AMPLIFIER’S LIABILITY HEREUNDER INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF AMPLIFIER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL AMPLIFIER’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF ALL AMOUNTS ACTUALLY PAID TO AMPLIFIER BY CLIENT UNDER THESE TERMS DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF TWO OR MORE CLAIMS OR SUITS WILL NOT ENLARGE THIS LIMIT. CLIENT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THESE TERMS MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR BE FOREVER BARRED.  IN THE EVENT OF AN UNAUTHORIZED TRANSACTION BY AN AMPLIFIER EMPLOYEE OR AGENT, AMPLIFIER IS ONLY LIABLE FOR THE DAMAGES CAP. AMPLIFIER MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY CLIENT KNOW ABOUT OR REASONABLY SHOULD HAVE KNOWN ABOUT SUCH UNAUTHORIZED TRANSACTION OR YOU WAIVE ALL DAMAGES FROM AMPLIFIER. AMPLIFIER’S LIABILITY REFERRED TO BELOW SHALL BE YOUR EXCLUSIVE REMEDY AGAINST AMPLIFIER FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS YOU PROVE BY AFFIRMATIVE EVIDENCE THAT AMPLIFIER CONVERTED THE GOODS TO ITS OWN USE. YOU WAIVE ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.

 

9.2 Third Party Liability. 

By using the Services, you acknowledge and agree that Amplifier disclaims all liability for the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not retained by or selected by Amplifier.

 

9.3. Annual Goods Shrinkage Allowance. 

Handling physical inventory could result in loss or damage of items. While we operate with high standards, facilities may from time to time encounter mislabeled or mispicked items, concealed shortages, product damages, and/or cross shipments. Amplifier provides client-friendly receiving and product labeling requirements which are intended to reduce the incidence of inventory issues. You agree that Amplifier will have a 2% shrink allowance based on the value of your account’s product known to be an Amplifier facility based on the stated cost value measured on an annual basis and subject to Limitations of Liability in this Section 9. Explainable, offsetting inventory adjustments based on mis-labeled inventory or receiving inventory errors will not be deemed an inventory shrinkage event or lost inventory.

 

9.4. Maximum Liability for Loss/Damage. 

In any event, the maximum liability for Amplifier for loss or damage of any Client Inventory shall be the lower of (i) Client’s replacement cost for such Client Inventory at current prices or (ii) the fully depreciated fair market value (taking into account, among other things, condition and salability) of such Client Inventory prior to such loss or damage, less (in the case of (i) and (ii) for damaged Client Inventory) the salvage value of such damaged Client Inventory. IN NO EVENT SHALL AMPLIFIER BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY.

 

9.5. Projects and Printing. 

IN THE EVENT OF A LOSS DUE TO A PROJECT DEFINED AS AN HOURLY OR PIECE WORK DONE ON EXPECTED OR HELD INVENTORY (“PROJECT”), YOU DECLARE THAT AMPLIFIER’S LIABILITY SHALL BE LIMITED TO THE CHARGE YOU PAID TO AMPLIFIER FOR THE PROJECT. IN ADDITION, FOR ANY INVENTORY PRODUCTION JOB PERFORMED BY AMPLIFIER (INCLUDING WITHOUT LIMITATION, SCREEN PRINTING), YOU DECLARE THAT AMPLIFIER’S LIABILITY SHALL BE LIMITED TO THE PRODUCTION COSTS ASSOCIATED WITH THAT PARTICULAR PRODUCTION JOB.

 

10.Government Actions. 

Client hereby agrees to promptly provide Amplifier copies of all complaints or inquiries received by it from any governmental agency that in any way relate to or have a potential effect on the Services provided hereunder. In the event Amplifier is required, as a result of any such action, to change the manner in which it does business in any material respect, Amplifier shall negotiate in good faith with Client to amend all applicable sections and provisions of these Terms to respond to and reflect the requirements of such government directive. If such negotiation is unsuccessful after a reasonable amount of time, then these Terms and the availability of such Services shall terminate as soon as practicable. Amplifier hereby agrees that it will promptly forward to Client copies of all written complaints or written inquiries addressed to Amplifier from any governmental agency in any way relating to or having a potential effect on the Services provided hereunder.

 

 

 

 

11. Representations, Warranty, and Covenants.

 

11.1     By Amplifier. Amplifier represents, warrants, and covenants that:

 

(a) Amplifier has full authority to enter into these Terms, and the person signing on behalf of Amplifier is authorized to sign on Amplifier’s behalf;

 

(b) Amplifier is a duly organized and validly existing corporation, and has the full right to enter into these Terms and to perform its obligations as stated herein; and

 

(c) The execution, delivery, and performance of these Terms does not violate any provisions of its certificate of incorporation, any other contract to which Amplifier or its assets is bound, or any laws or regulations applicable to Amplifier’s business.

 

11.2  By Client. 

Client represents, warrants, and covenants that:

 

(a)  Client has full authority to enter into these Terms, and the person signing on behalf of Client is authorized to sign on Client’s behalf;

 

(b)  Client is a duly organized and validly existing corporation, limited liability company or other entity, and has the full right to enter into these Terms and to perform its obligations as stated herein; and

 

(c)  The execution, delivery, and performance of these Terms does not violate any provisions of its governing documents, any other contract to which Client or its assets is bound, or any laws or regulations applicable to Client’s business.

 

11.3  Warranties. 

All warranties provided in these Terms are in lieu of all other warranties. Except as expressly set forth in these Terms, each party makes no warranties, express, implied, or statutory and specifically disclaims any warranty of merchantability or fitness for a particular purpose.

 

12. General.

 

12.1 Governing law.  

These Terms and the relationship between Client and Amplifier shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. All disputes arising out of or relating to these Terms may only be brought in the state or federal courts located in Travis County, Texas, and the parties hereby agree and submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the foregoing, Amplifier may seek injunctive or other equitable relief to protect Amplifier’s intellectual property rights in any court of competent jurisdiction.

 

12.2  Headings. 

The section headings in these Terms are for convenience only and have no legal or contractual effect, and shall not be interpretive of the content of such section.

 

12.3 Waiver.  

Failure or delay of Amplifier to exercise a right or power under these Terms shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.

 

12.4  Disputes. 

The prevailing party in any legal action arising out of or related to these Terms shall be entitled, in addition to any other rights and remedies it may have, to reimbursement of expenses incurred in such action, including court costs and reasonable attorneys’ fees.

 

12.5  Severability. 

In the event that any provision of these Terms is prohibited by any law governing its construction, performance or enforcement, such provision shall be ineffective to the extent of such prohibition without invalidating thereby any of the remaining provisions of the Terms.

 

12.6  Force Majeure. 

Neither party shall be in default or otherwise liable for any delay in or failure of its performance under these Terms if the delay or failure arises by reason of any Act of God, or any governmental body, natural disasters, or other reason beyond the reasonable control of such party.

 

12.7 Notices to You. 

Amplifier may provide notice to you by emailing it to the email address listed in your Account, by posting it on our website, or by mailing it to the street address listed in your Account. All notices sent via email will be deemed received 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If the notice is sent by mail, we will consider it to have been received by you five business days after it is sent. If applicable law requires that a given communication be “in writing,” you agree that email communication will satisfy this requirement. You agree to maintain a current email address and to provide such to Amplifier.

 

12.8 Notices to Amplifier. 

Except as otherwise stated, legal notices to Amplifier must be sent by postal mail to: Amplifier, 800 Interchange Blvd., Suite 102, Austin, TX 78721, and shall not be deemed to be received until actually received.

 

12.9 Entire Agreement and Modifications to the Terms and Policies. 

These Terms, including all applicable Policies, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties. Amplifier reserves the right to modify the Services and may change, suspend or discontinue any aspect of the Services at any time without any liability to you or any third party. Amplifier shall have complete discretion over the features, functions, prices and other terms and conditions on which the Services are offered. At any time, Amplifier may change these Terms and any applicable Policies by posting updates to Amplifier.com. While Amplifier shall endeavor to notify you of any changes to these Terms or Policies, Amplifier’s failure to do so shall not remove your obligation to comply with such modified Terms or Policies. If any modification is unacceptable to you, your only recourse is to stop using the Services. If you do not stop using the Services, you shall be conclusively deemed to have accepted the modifications.

 

12.10 Assignment. 

These Terms and all applicable Policies will be binding upon and inure to the benefit of the parties and their respective successors and assigns. You may not assign these Terms or any Policies (including without limitation, by merger, operation of law or otherwise) without the prior written consent of Amplifier; provided however, that you may without such consent assign these Terms and such Policies in connection with the sale or transfer of all or substantially all of your business or in connection with a merger or other consolidation with another entity.

 

12.11  Independent Contractors. 

The relationship created under these Terms between Amplifier and Client shall be solely that of independent contractors entering into an agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment or trust relationship between the parties with respect to the subject matter of these Terms or any applicable Policy. Neither Amplifier nor Client shall have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other, to any person or entity.