© Amarki All Rights Reserved 2020
Amarki Services General Terms and Conditions
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, USING THE AMARKI SERVICES OR AMARKI SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THIS GENERAL TERMS AND CONDITIONS BY CLICK YOU ACCEPT OR OTHERWISE (the "AGREEMENT"), YOU AGREE TO THE TERMS OF THIS General Terms and Conditions ON YOUR OWN BEHALF AND ON BEHALF OF THE USER LISTED IN THE ORDER FORM. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE USER TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE AMARKI SERVICES OR AMARKI SOFTWARE.
These General Terms and Conditions ("General Terms,” and the Order Form (collectively "Terms") govern your and the entity or organization that is referenced in the Order Form’s (“you” or “your”) use of Creel Information Technology, Inc. (“us, “ours”, Amarki” or “we”) website, access to Amarki software whether downloaded or accessed by you, customer support, the Amarki marketplace (once established) and services (collectively “Amarki Services”) and software that we include as part of the Amarki Services, as well as any applications in object code form, Sample Files and Content Files (defined below), scripts, APIs, instruction sets, and related documentation (collectively “Software”). “You” or “your” includes you and any user who uses the Software or Amarki Services under your account or pursuant to your authorization (including any agents under your account). As discussed more in section 4 below, you retain all rights and ownership you have in your Content (defined below).
You must be 13 or older to register for an individual Amarki ID. Schools that participate in the primary and secondary education named user offering may issue a child under 13 an enterprise-level Amarki ID, but only after obtaining express parental consent.
1. Your Agreement with Amarki.
1.1 Choice of Law. Your relationship is with Amarki., and the Terms are governed by the law of Texas, U.S.A. We do not seek to limit those rights where it is prohibited to do so by law.
2.2 Amarki Service Usage Information. You have the option to share information with us about how you use the Amarki Services. Where permitted by law, this option is turned on by default, and the information is associated with your Amarki account. This information allows us to provide you with a more personalized experience and helps us to improve product quality and features.
2.3 Our Access to Your Content. Where permitted by law, we will only access, view, or listen to your Input Files (defined in section 4.1 below) in limited ways. For example, in order to perform the Amarki Services, we may need to access, view, or listen to your Input Files to (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, unlawful, or technical issues; and (c) enforce the Terms. Our automated systems may collect and analyze your Input Files using techniques such as machine learning and data aggregation. This analysis may occur when the Input Files is sent, received, or stored. From this collection and analysis, we are able to improve the Amarki Services. We reserve the right to access, view, or listen to any End Use or Content Files (defined in section 4.1 below) and collect and analyze such for any purpose.
3. Use of Amarki Services and Software.
3.1 License. Subject to your compliance with the Terms and the law, you may access and use the Amarki Services and Software.
3.2 Amarki Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Amarki Services and the Software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Amarki Services or Software. We reserve all rights not granted under the Terms.
3.3 Storage. When the Amarki Services provide storage, we recommend that you also back up your Content elsewhere regularly as we are not responsible for maintaining the backup. We may create reasonable technical limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Amarki Services until you are within the storage space limit associated with your account. At the end of your license Term, or other cancellation of your account or Term, we reserve the right to delete your and any of your account users, Input Files, the Content Files, and the End Use and any and all files and data.
3.4 User-Generated Content. We may host user-generated content from our users. If you access our Amarki Services, you may come across user-generated content that you find offensive or upsetting. Your sole remedy is to stop viewing the content.
3.5 Sample Files. “Sample Files” means Amarki-provided files such as content images, clip art, stock images, or sounds for use in tutorials, demonstrations, and for other trial purposes, which may be identified as sample files or “themes”. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files on a stand-alone basis (i.e., in circumstances in which the Sample Files constitute the primary value of the product being distributed), and you cannot claim any rights in the Sample Files.
3.6 Content Files. "Content Files" means Amarki assets provided as part of the Amarki Services and Software. Unless documentation or specific licenses state otherwise, we grant you a personal, non-exclusive, non-sublicensable, and non-transferable license to use the Content Files to create your end use (i.e., the derivative application or product authored by you) into which the Content Files, or derivations thereof, are embedded for your business use ("End Use"). During the license term (but not after), You may modify the Content Files prior to embedding them in the End Use. During the license Term, You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.
3.7 Other License Types.
(a) NFR Version. We may designate the Amarki Services or Software as “trial,” “evaluation,” “not for resale,” “free” or other similar designation (“NFR Version”). You may not use the NFR Version only for the period and purposes stated when we provide the NFR Version.
(b) Prerelease Version. We may designate the Amarki Services or Software, or a feature of the Amarki Services or Software, as a prerelease or beta version (“Prerelease Version”). A Prerelease Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Prerelease Version. You must promptly cease using the Prerelease Version and destroy all copies of Prerelease Version if we request you to do so, or if we release a commercial version of the Prerelease Version. Any separate agreement we enter into with you governing the Prerelease Version will supersede these provisions.
4. Your Content.
4.1 Input Files. “Input Files” means any material, files, or content including without limitation audio files, video files, electronic documents, or images, that you upload and import into the Amarki Services or Software in connection with your use of the Amarki Services.
4.2 Ownership. You retain all rights and ownership of your Input Files. We do not claim any ownership rights to your Input Files.
4.3 Licenses to Your Content in Order to Operate the Amarki Services and Software. We require certain licenses from you to your Input Files in order to operate and enable the Amarki Services and Software. When you upload Input Files to the Amarki Services and Software, you grant us a nonexclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your Input Files, for example), publicly perform, and translate the Input Files as needed in response to user driven actions (such as when you choose to privately store or share your Input Files with others). This license is only for the purpose of operating or improving the Amarki Services and Software. Some copies of your Input Files and the Content Files may be retained as part of our routine backups prior to and after termination.
4.4 Sharing Your Input Files.
(a) Sharing. Our Amarki Services and Software may provide features that allow you to Share the Content Files or End Use with other users or to make it public. “Share” means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Amarki Services and Software. Other users may use, copy, modify, or re-share the Content Files in many ways. Please carefully consider what you choose to Share or make public as you are responsible for the Content that you Share.
(b) Level of Access. We do not monitor or control what others do with your Input Files or the Content Files. You are responsible for determining the limitations that are placed on your Input Files and the Content Files and for applying the appropriate level of access with respect thereto. If you do not choose the access level to apply to your Input Files and the Content Files, the system may default to its most permissive setting. It is your responsibility to let other users know how Input Files and the Content Files may be shared and to adjust the setting related to accessing or sharing your Input Files and the Content Files.
4.6 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.
4.7 You hereby grant us a license to further sublicense our right to use, reproduce, publicly display, distribute, modify, publicly perform, and translate the End Use and Content Files in the course of your usage (including without limitation for your users within your account and for the marketplace) on a non-exclusive, worldwide, and perpetual basis in any media or embodiment. For clarity, we may allow users and other authorized third parties (such as, without limitation, marketing consultants or service providers) to post or share the End Use or Content Files onto social media sites or other third-party websites. You hereby grant us a license to use, reproduce, distribute, and modify your date relating to your use and the End Use and Content Files for the purposes of generating analytics to improve the Services.
5. Account Information.
You are responsible for all activity that occurs via your account. Please notify Customer Support at email@example.com immediately if you become aware of any unauthorized use of your account. You may not (a) share your account information (except with an authorized account administrator); or (b) use another person’s account. Your account administrator may use your account information to manage your use and access to the Amarki Services and Software. We reserve the right to monitor and enforce subscription plan limits and restrictions.
6. User Conduct.
6.1 Responsible Use. You must use the Amarki Services and Software responsibly. AMARKI IS NOT RESPONISBLE FOR YOUR USE OF THE AMARKI SERVICES.
6.2 Misuse. You must not misuse the Amarki Services or Software. For example, you must not:
(a) copy, modify, host, stream, sublicense, or resell the Amarki Services or Software; or create your own hosted or shared service using the Amarki Services or Software, whether for a third party or a user who is not registered to use the Amarki Services or Software;
(b) enable or allow others to use the Amarki Services or Software using your account information;
(c) use the Amarki Services or Software to construct any kind of database;
(d) access or attempt to access the Amarki Services or Software by any means other than the interface we provide or authorize;
(e) circumvent any access or use restrictions put into place to prevent certain uses of the Amarki Services or Software;
(f) share Content Files, End Use, or Sample Files with a third party or a user who is not registered to use the Amarki Services or Software
(g)or engage in behavior that violates anyone’s intellectual property rights (“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights);
(h) upload or share any Input Files, Content Files, or End Use that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
(i) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(j) attempt to disable, impair, or destroy the Amarki Services and Software;
(k) upload, transmit, store, or make available any Input Files or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Amarki Services or Software;
(l) disrupt, interfere with, or inhibit any other user from using the Amarki Services or Software (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);
(m) engage in pyramid schemes, phishing, chain letters, junk mails, spamming, or other unsolicited messages in violation of applicable law;
(n) place an advertisement of any products or services in the Amarki Services except with our prior written approval;
(o) use any data mining or similar data gathering and extraction methods in connection with the Amarki Services; or
(p) violate applicable law (including, but not limited to, where applicable, COPPA).
7. Fees and Payment.
7.1 Taxes and Third-Party Fees. You must pay the fees outlined on the Order Form. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
7.2 Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information. You authorize us to continue billing your account with the updated information that we obtain.
8. Your Warranty and Indemnification Obligations.
8.1 Warranty. By uploading your Input Files to the Amarki Services or Software, you agree that you have: (a) all necessary licenses and permissions to use and Share your Input Files; and (b) the rights necessary to grant the licenses in the Terms.
8.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to your Input Files, Content Files, End Use, your use or misuse of the Amarki Services or Software, or your violation of the Terms.
9. Disclaimers of Warranties.
9.1 Unless stated in the Additional Terms, the Amarki Services and Software, as well as the Content Files and Sample Files are provided “AS-IS.” To the maximum extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Amarki Services. We further disclaim any warranty that (a) the Amarki Services or Software , as well as the Content Files and Sample Files will meet your requirements or will be available, uninterrupted, timely, secure, or error-free; (b) the results obtained from the use of the Amarki Services or Software, as well as the Content Files and Sample Files will be effective, accurate, or reliable; (c) the quality of the Amarki Services or Software, as well as the Content Files and Sample Files will meet your expectations; or (d) any errors or defects in the Amarki Services or Software, as well as the Content Files and Sample Files will be corrected.
9.2 We specifically disclaim all liability for any actions resulting from your use of any Amarki Services or Software, as well as the Content Files and Sample Files. You may use and access the Amarki Services or Software, as well as the Content Files and Sample Files at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to any Amarki Service or Software, as well as the Content Files and Sample Files.
9.3 If you post your Input Files on our servers to publicly Share through the Amarki Services, we are not responsible for: (a) any loss, corruption, or damage to your Content; (b) the deletion of Input Files; or (c) the inclusion of your Input Files by third parties on other websites or other media.
10. Limitation of Liability.
10.1 To the fullest extent permitted by applicable law, we are not liable to you or anyone else for any loss of use, data, goodwill, or profits, whatsoever, and any special, incidental, indirect, consequential, or punitive damages whatsoever, regardless of cause (even if we have been advised of the possibility of the loss or damages), including losses and damages (a) resulting from loss of use, data, or profits, whether or not foreseeable; (b) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action; or (c) arising from any other claim arising out of or in connection with your use of or access to the Amarki Services or Software Input Files. Nothing in the Terms limits or excludes our liability for gross negligence, for our, or our employees’, fraud, or for death or personal injury.
10.2 Our total liability in any matter arising out of or related to the Terms is limited to US $100 or the aggregate amount that you paid for access to the Amarki Service and Software during the three-month period preceding the event giving rise to the liability, whichever is larger. This limitation will apply regardless of the form or source of claim or loss, whether the claim or loss was foreseeable, and whether a party has been advised of the possibility of the claim or loss.
10.3 The limitations and exclusions in this section 10 apply to the maximum extent permitted by law.
11.1 Termination by You. You may stop using the Amarki Services and Software at any time. Termination of your account does not relieve you of any obligation to pay any outstanding fees and you agree that you will not be entitled to nor receive a refund.
11.2 Termination by Us. If we terminate the Terms, or your use of the Amarki Service(s) for reasons other than for cause, we will make reasonable efforts to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your Content. We may, at any time, terminate your right to use and access the Amarki Services or Software immediately and without notice if:
(a) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(b) you fail to make the timely payment of fees for the Amarki Services or Software, if any;
(c) you materially breach any provision of the Terms, and (i) the breach cannot be corrected; or (ii) we notify you of the breach and you fail to correct it within 14 days of the notice;
(d) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Amarki Services or Software);
(e) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Amarki Services or Software);
(f) we are required to do so by law (for example, where the provision of the Amarki Services or Software to you is, or becomes, unlawful);
(g) we elect to discontinue the Amarki Services or Software, in whole or in part (such as if it becomes impractical for us to continue offering Amarki Services in your region due to change of law); or
(h) there has been an extended period of inactivity in your free account.
Upon termination, you may no longer be able to access Input Files, or the Content Files and Sample Files.
11.3 Termination by Group Administrator. Group administrators for the Amarki Service may terminate a user’s access to an Amarki Service at any time. If your group administrator terminates your access, then you may no longer be able to access Input Files, or the Content Files and Sample Files that you or other users of the group have shared on a shared workspace within that Amarki Service.
11.4 Survival. Upon the expiration or termination of the Terms, some or all of the Amarki Services and Software may cease to operate without prior notice. Any perpetual licenses you have will continue in full force and effect, however. Your indemnification obligations, our warranty disclaimers or limitations of liabilities, and dispute resolution provisions stated in the Terms will survive.
12.1 Screening. We do not review all content uploaded to the Amarki Services or Software, but we may use available technologies, vendors, or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
12.2 Disclosure. We may access or disclose information about you or your use of the Amarki Services or Software: (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when we, in our discretion, think it is necessary to protect the rights, property, or personal safety of us, our users, or the public.
13. Trade Control Laws.
The Amarki Services or Software and your use of the Amarki Services and Software, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Amarki Services and Software. You agree to comply with all the laws, restrictions, and regulations.
14. Dispute Resolution.
14.1 Process. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, any resulting legal actions must be resolved through final and binding arbitration, except that you may assert claims in small claims court if your claims qualify.
14.2 Rules. JAMS will administer the arbitration in Dallas Texas pursuant to its Comprehensive Arbitration Rules and Procedures. There will be one arbitrator that you and Amarki mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you and us.
14.3 No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action.
14.4 Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Amarki Services or Software in violation of the Terms, you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15. Shipping and Returns. IF YOU ORDER THROUGH THE AMARKI MARKETPLACE, DO NOT RETURN ANY ITEMS PURCHASED TO AMARKI.
On implementation of the Amarki marketplace, you will be subject to the terms and conditions of the marketplace.
17. Updates and Availability.
17.1. Updates to the General Terms and Additional Terms. We may modify these General Terms, any Additional Terms or Subscription and Cancellation terms, for example, to reflect changes to the law or changes to our Amarki Services or Software. You should look at the Terms regularly. We will post notice of modifications to these General Terms and Additional Terms on the website at www.Amarki.com/marketplace-terms. By continuing to use or access the Amarki Services or Software after the revisions are in effect, you agree to be bound by the revised Terms.
17.2. Updates to the Amarki Services and Software. We may modify, update, or discontinue the Amarki Services or Software (including any portions or features) at any time, without liability to you or anyone else. However, for changes to paid offerings, we will make reasonable efforts to notify you of the modification, update or discontinuation. If we discontinue the Amarki Services or Software in its entirety, we will also allow you a reasonable time to download your Content and we may provide you with a pro rata refund for any unused fees for that Amarki Service or Software that you prepaid.
18. No Modifications, Reverse Engineering.
19.1 English Version. The English version of the Terms will be the version used when interpreting or construing the Terms.
19.2 Notice to Amarki. You may send notices to us at the following address:
19.3 Notice to You. We may notify you by email, postal mail, postings within the Amarki Services, or other legally accepted means.
19.4 Non-Assignment. You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without our written consent, and any such attempt will be void. We may transfer our rights under the Terms to a third party.
19.5 Headings. Headings used in these General Terms or Additional Terms are provided for convenience only and will not be used to construe meaning or intent.
19.6 Severability. If any provision of these General Terms or any Additional Terms is held invalid or unenforceable for any reason, the General Terms and any Additional Terms will continue in full force and effect.
19.7 No Waiver. Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.
We respect the Intellectual Property Rights of others and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).
If you use this web-based solution, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Amarki does sell not products for personal use. This solution focuses on business needs and services. The owner and/or broker of the office or company will designate who has access rights to the system. Those with access must be licensed brokers, agents or those professionals that represent them or employed by them. Amarki reserves the right to refuse service, terminate accounts, remove or edit content or cancel orders at their sole discretion.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Amarki copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Amarki that your copyrighted material has been infringed.
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
Amarki’s Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows: