TERMS OF SERVICE

This Agreement is for the use of MediaGamma’s Nozzle Audit Tool (“Audit Tool”) by You (the organisation or individual identified on the Landing Page).

The parties to this Agreement are:

  1. MediaGamma Limited of Innovation Warehouse, 1 East Poultry Avenue, London EC1A 9PT (“MediaGamma”); and
  2. The organisation or individual identified on the Landing Page.

This Agreement is made up of the following:

  1. The Landing Page;
  2. These Terms of Use and
  3. MediaGamma’s Privacy Policy https://www.nozzle.ai/privacy-policy

In this Agreement the following terms have the meanings set out below:

Amazon Account: Your account on Amazon Seller Central, Amazon Vendor Central and/or Amazon Advertising;
Audit Data: the data relating to views, clicks, ad spend, purchases, responses to Your advertising and other interactions with Your Amazon Account by Shoppers;
Audit Tool: the software tool provided by MediaGamma that analyses activity on Your Amazon Account including the effectiveness of your advertising spend and campaigns;
Data Protection Laws: all laws and regulations that apply to or govern the processing of personal data, including, but not limited to the EU General Data Protection Regulation ((EU) 2016/679) and any national data protection laws and regulations implementing the EU Electronic Communications Privacy Directive (2002/58/EC), as well as any amendments to or replacements of such laws and regulations (controller, processor, data subject, data concerning health, personal data, personal data breach, processing and appropriate technical and organisational measures shall have the meanings given to them in the Data Protection Laws);
Privacy Policy: MediaGamma’s privacy policy that can be found at https://www.nozzle.ai/privacy-policy;
Reports: the reports generated by the Audit Tool from time to time;
Shoppers: the customers and potential customers visiting Your Amazon Account and responding to Your advertising;
Software Services: the supply of the Audit Tool as a service by MediaGamma.

 

1. Use of the audit tool

  1. To use the Audit Tool, You must complete the registration process by providing MediaGamma with the information requested on the Landing Page, including Your e-mail address. You agree to provide accurate and up to date information.

  2. You will be required to connect Your Amazon Account to Nozzle.ai. MediaGamma will provide you with instructions about how to connect.

  3. The Audit Tool accesses and copies the Audit Data on Your Amazon Account and You give permission to MediaGamma to access and copy the Audit Data. MediaGamma does not access any other aspect of Your Amazon Account and You are solely responsible for any and all activities that occur under or in relation to Your Amazon Account.

  4. When requested by You, the Audit Tool will generate a Report or series of Reports detailing activity on Your Amazon Account over a defined time period or in relation to a specified activity.

  5. The Audit Tool software is hosted by MediaGamma on a third party platform (such as Google cloud) and a copy of the Audit Data is processed by MediaGamma. These Use Terms set out the terms that apply to the use of the software and Audit Data.

  6. The Audit Tool and Software Services are provided ‘as is’ with no warranty as to availability or as to accuracy of the contents of Reports. Your use of the Reports and actions taken in response to the Reports are for You to determine and MediaGamma accepts no responsibility or liability for Your use of the Reports. All implied warranties, including as to fitness for use, merchantability and ownership of the Audit Tool are hereby excluded to the maximum extent permitted by applicable law.

2. License to use the audit tool

  1. In consideration for Your compliance with these Terms of Use and/ or payment of the Fees (if applicable), MediaGamma hereby agrees to provide the Software Services and grants You a limited, revocable, non-exclusive, non-transferrable license to access and use the Audit Tool and Reports for the purposes of analyzing Your Amazon Account.

  2. The Audit Tool is owned by MediaGamma and is subject to intellectual property rights. You will not attempt to copy, reverse engineer, duplicate, modify, create derivative works from or distribute all or any portion of the Audit Tool except if allowed by these Use Terms or as may be allowed by any applicable law which is incapable of exclusion by agreement. You may not remove any proprietary labels or notices on the software or use any device, software or routine that interferes with the operation of the Audit Tool.

  3. You may only use Your own Audit Data for generating and viewing Reports

  4. You must use reasonable efforts to prevent unauthorized access to the Audit Tool or use of the Audit Tool by others in a manner that is not in accordance with these Terms of Use.

  5. MediaGamma may prohibit access to the Audit Tool to users it suspects are not authorised or any person who it suspects is mis-using the Audit Tool.

3. Data

  1. The Audit Tool relies on Account Data generated by Amazon and stored on Your Amazon Account.

  2. You own all rights, title and interest in and to all of the Account Data.

  3. In order to provide the Software Services, MediaGamma will process the Account Data and You give permission to such processing. The Account Data does not include any personal data.

  4. MediaGamma will process the personal data of Your staff provided to MediaGamma on the Landing Page. Such personal data will be used by MediaGamma for the purposes of performing this Agreement, as may be required by law and to pursue the legitimate interests of MediaGamma. purposes. MediaGamma will comply with its Privacy Policy in relation to such use.

4. Fees and payment

  1. You shall pay the monthly amounts set out on the Landing Page (“Fees”), if applicable, for use of the Audit Tool and the Software Services.

  2. The Fees will either be invoiced by MediaGamma monthly in advance starting on the date you activate the Software Service and shall be paid by You within 30 days of the date of the invoice or will be collected via an automated payment system as agreed with You. The date you are invoiced or the payment is collected (as the case may be) is the “Billing Date”.

  3. If MediaGamma has not received the payment within 30 days of the Billing Date , MediaGamma

    1. will not be obliged to provide the Software Services and
    2. may charge interest of 12% per annum on the unpaid Fees.
  4. MediaGamma may adjust the Fees at any time by providing at least one month’s prior notice of its intention to adjust the Fees.

5. Confidentiality

  1. Each party may be given access to information of the other party that is confidential in nature. Confidential Information includes information relating to the Audit Tool, the Audit Data and the Amazon Account. Confidential Information does not include information that:

    1. is or becomes publicly known other than through any act or omission of the receiving party; or
    2. was in the other party’s lawful possession before the disclosure; or
    3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
    4. is independently developed by the receiving party, which independent development can be shown by written evidence.
  2. Subject to clause 5.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than performance of its obligations under this Agreement.

  3. A party may disclose Confidential Information if it is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction; provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 5.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

  4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

6. Limitation of liability

  1. This clause 6 sets out the entire financial liability of MediaGamma (including any liability for the acts or omissions of its employees, agents and subcontractors) to You:

    1. arising under or in connection with this Agreement;
    2. in respect of any use made by You of the Software Services, the Audit Tool, the Reports or any part of them; and
    3. in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
  2. Except as expressly and specifically stated in this Agreement:

    1. You assume sole responsibility for Reports and results obtained from the use of the Audit Tool and the Software Services and for conclusions drawn from such use.
    2. MediaGamma shall have no liability for any damage caused by errors or omissions in any information or instructions provided to MediaGamma by You in connection with the Software Services or any actions taken by MediaGamma at Your direction;
    3. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
    4. MediaGamma shall not be liable for any liability caused by third party service providers;
    5. MediaGamma shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement, whether or not such damages were reasonably foreseeable or actually foreseen.
  3. MediaGamma’s aggregated liability under this Agreement shall in no event exceed the Fee paid by You in the year preceding any claim

  4. MediaGamma’s aggregated liability under this Agreement shall in no event exceed the Fee paid by You in the year preceding any claim

    1. for death or personal injury caused by the party’s negligence;
    2. for fraud or fraudulent misrepresentation; or
    3. for other liability that cannot be excluded by applicable law.

7. Term and termination

  1. This Agreement shall commence on the date You activate the Software Service by completing the steps indicated by MediaGamma. It shall automatically renew for monthly periods but may be terminated by either party by giving 60 days’ written notice. Termination will be effective on the first Billing Date following expiry of the notice.

  2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

    1. the other party fails to perform its obligations under this Agreement and remains in default 30 days after being notified in writing of the failure;
    2. the other party suspends its payments, becomes bankrupt or insolvent or enters into liquidation or otherwise can be regarded as insolvent.
  3. Upon termination of this Agreement, all licenses granted under this Agreement and the supply of the Software Services shall immediately terminate.

  4. Sixty days after termination of the Agreement, MediaGamma may destroy or otherwise dispose of any of the Audit Data in its possession.

  5. No compensation is payable for termination by either party but this does not affect the rights or remedies of a party in the case of a breach of obligations under this Agreement.

8. Force majeure

  1. Each party shall be excused from performing any obligation under this Agreement to the extent that and for so long as such performance is prevented or delayed by any other cause beyond its reasonable control such as, but not limited to, riots; an industrial dispute; floods; war; warlike hostilities; fires; embargo; shortage of labour, power, fuel, means of transportation or common lack of other necessities. In such event, the affected party shall promptly notify the other party who may extend the time for performance of such obligation by a reasonable period.

9. Variation

  1. MediaGamma may need to alter the Terms of Use or the terms of any policy that these Terms of Use refer to. If MediaGamma wishes to make such an alteration, it will give at least 30 days’ notice of the alteration to You. In the event MediaGamma makes alterations to Your detriment which are not acceptable to You, You may terminate the Agreement by giving written notice to MediaGamma within thirty (30) days from the date of the notification of such alteration. If You do not give written notice of termination of the Agreement within thirty days, You shall be deemed to have accepted the alteration(s).

10. General terms

  1. MediaGamma shall acquire no rights over or interest in the Audit Data; however, MediaGamma may use learnings, findings or intelligence acquired or assimilated by it as a result of providing the Software Services for the purposes of enhancing the Audit Tool and/or other services and products provided by MediaGamma.

  2. The Audit Tool is subject to export, re-export, and import regulations in any applicable country, and You hereby agree the Audit Tool is not intended to be shipped, either directly or indirectly to any embargoed countries nor used for or in support of any prohibited activities. In the event You use the Audit Tool in, or accesses it from, a country than the country in which You are domiciled, You assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be.

  3. MediaGamma shall be entitled to assign this Agreement in whole or in part to a company owned by or affiliated with MediaGamma or a company to which MediaGamma’s business relating to the Audit Tool is assigned or transferred. Otherwise, neither party may assign this Agreement without the consent of the other party.

  4. Any notice under this Agreement shall be in writing and delivered to the address or e-mail address given by the other party for that purpose.

  5. This Agreement and the documents and policies referred to in it are the entire understanding between the parties on the use of the Audit Tool and Software Services. Any communications outside of those documents and policies are excluded.

  6. This Agreement shall be governed by and construed in accordance with the laws of England and the parties agree that any dispute or claim relating to it shall be settled by the courts of England.