TERMS AND CONDITIONS FOR OUR RETAILERS AND ORIGINATORS

1.      PURPOSE AND AUTHORIZATION

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT APPLY TO YOU AS A RETAILER (AS DEFINED BELOW) (EACH DEFINED AS "YOU" OR "YOUR" AS THE CONTEXT MAY REQUIRE). PLEASE READ THESE TERMS CAREFULLY.

AS A RETAILER, AND BY USING THE SERVICES PROVIDED BY AMBER ENGINE, YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.

AS A GATING ITEM, YOU MAY NOT ORDER OR OBTAIN SERVICES FROM AMBER ENGINE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH AMBER ENGINE LLC ("AMBER ENGINE"), OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS OR SERVICES BY APPLICABLE LAW.

These terms and conditions (these "Terms") apply to the purchase, sale, and use of all services (the "Services") through Amber Engine and *.amberengine.com (the "Site"). These Terms govern your use of the Site and Services, and are subject to change by Amber Engine, (referred to as "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms prior to using the Services or purchasing any product or services that are available through this Site. Your continued use of this Site or Services after a posted change in these Terms will constitute your acceptance of, and agreement to, such changes.

These Terms are an integral part of the Website Terms of Use that apply generally to the use of the Services. You should also carefully review our Privacy Policy before placing an order for Services or utilizing any of the Services (see Section 9).

2.      Your Use of the Services

Among other things, the Services may include a B2B cloud-based commerce platform for connecting product originators (e.g., manufacturers, suppliers, wholesalers, distributors, importers, and the like) ("Originators") with retailers (e.g., retailers (online or otherwise), distributors, resellers, marketplaces, and the like) ("Retailers") of home furnishings and décor; specializing in the collection, augmentation, enhancement and distribution of product data and related imagery. You agree and acknowledge that Amber Engine is simply an enterprise content management platform that utilizes technologies, methods, and tools for gathering, imaging, storing, archiving and providing electronic product data and related content and imagery.

The Services provide a platform for our users who sign up as Retailers to (i) access data that our Originators have provided (e.g., manufacturer product data, brand imagery, and the like) ("Originator Data"). For certainty, Amber Engine does not own the Originator Data. It is each Retailer’s sole responsibility to utilize the Originator Data appropriately to ensure that all representations of the Originator Data by such Retailer are accurate and correct. During the Term, we hereby grant you a limited, non- sublicensable, non-transferable, and non-exclusive license to use the Site and Services to access Originator Data (i) accessible by you pursuant to these Terms and your agreement with the owner of such Originator Data, and (ii) only in connection with the Services offered to you.

We will use reasonable efforts to allow you to export the Originator Data that (i) is permissibly stored in supported export formats, and (ii) to which you are permitted to export pursuant to your agreement with the owner of such Originator Data, but you agree that we are not responsible or liable for any issues or mistakes associated with such export formats, and we expressly waive all liability related thereto.

You agree that any permitted use of any particular Originator's Data is limited to exclusive use by you, or by third parties working on your behalf, to support the resale of products and services by you pursuant to your agreement with the particular Originator. For certainty, sharing, distributing, or syndicating Originator Data is expressly prohibited.

You acknowledge and agree to the following:

(a)     you are solely responsible for your use or provision of any and all Originator Data (whether erroneous or inaccurate) and you hereby agree to indemnify, protect, defend, and hold harmless Amber Engine, its shareholders, agents, representatives, and employees, from any liability whatsoever (including without limitation attorney's fees and court costs), including any claim or suit, threatened or actual, arising from any Originator Data or your usage of any Originator Data or the Services; and

(b)     any access, use, or distribution of any Originator Data in any form or by any means, other than in accordance with these Terms, constitutes a material breach of these Terms.

Rights in the Data:

By using the Site or the Services, you agree and acknowledge that all right, title, and interest in and to all Originator Data is not owned by you, and that such Originator Data is owned by Originator and that any enhancements, improvements, derivative works, or modifications that you make to any such Originator Data is owned by Originator, and you agree that any distribution of any Originator Data outside of the Site, in any form or by any means, constitutes a material breach of these Terms.

3.      Order Acceptance and Cancellation.

You agree that your order is an offer to buy, under these Terms, all services listed in your order. Unless an order is accepted by us, we are not obligated to provide any services to you. We may choose not to accept any orders in our sole discretion. After receiving your order, we will send you a confirmation e-mail with details of your order. Acceptance of your order and the formation of the contract of sale between Amber Engine and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your order at any time before we have sent your order confirmation e-mail by contacting us at: support@amberengine.com.

4.      Prices and Payment Terms.

(a)     All of our prices, services, and offerings are subject to change without notice. The price charged for a service, and the underlying commitments, will be the price and commitments that are in effect at the time the order is placed and will be included in your order confirmation e-mail. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes, including, without limitation, sales and use taxes. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical, or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.

(b)     Terms of payment are set by us in our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept MasterCard, Visa, American Express, JCB, Discover, and Diners Club for all purchases. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.

5.      Returns and Refunds.

As previously stated, Amber Engine does not own the Originator Data. Accordingly, all orders are final. WE OFFER NO REFUNDS OR RETURNS OF ANY TYPE ON ANY SERVICES, INCLUDING SERVICES DESIGNATED ON THE SITE AS NON- RETURNABLE.

6.      NO WARRANTY. THE SERVICES ARE PROVIDED ON AN AS-IS, WHEREIS BASIS. YOU ACKNOWLEDGE THAT THERE IS NOT A WARRANTY OF ANY KIND. AMBER ENGINE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DATA MANAGEMENT AND ASSUMES ALL RISKS ASSOCIATED WITH THE USE WITHIN THE SITE, INCLUDING BUT NOT LIMITED TO THE RISKS OF PROGRAM ERRORS, DAMAGE TO OR LOSS OF DATA, PROGRAMS OR EQUIPMENT, AND UNAVAILABILITY OR INTERRUPTION OF OPERATIONS. AMBER ENGINE WILL NOT BE LIABLE FOR ANY DIRECT DAMAGES OR FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF AMBER ENGINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY CUSTOMER. AMBER ENGINE WILL NOT BE LIABLE FOR THE LOSS OF, OR DAMAGE TO, YOUR RECORDS OR DATA, OR ANY DAMAGES CLAIMED BY YOU BASED ON A THIRD-PARTY CLAIM.

7.      LIMITATION OF LIABILITY. THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE SERVICE THAT YOU HAVE PURCHASED THROUGH THE SITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

8.      Intellectual Property Use and Ownership. You acknowledge and agree that: (a) all uses on this Site of the terms "sell," "sale," "resell," "resale," "purchase," "price" and the like mean the purchase or sale of a license. Each product and service made available is made available solely for license, not sale, to you and other prospective customers subject to your agreement to these Terms and to any specific terms, conditions and restrictions that may accompany, or be related to, that specific product or service; (b) in addition to these Terms, you will comply with all terms and conditions of the specific license agreement for any product or service, including, but not limited to, all confidentiality obligations and restrictions on resale, use, reverse engineering, copying, making, modifying, improving, sublicensing and transfer of those licensed products and services; (c) you will not cause, induce or permit others' noncompliance with the terms and conditions of any of these product and service license agreements. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products or services made available, or of any intellectual property rights relating to those products or services.

a.      You represent and warrant that that (i) to your knowledge, the Originator Data does not and will not infringe upon or violate the intellectual property rights of any third party; (ii) you shall use reasonable efforts to ensure that Originator Data does not include or transmit any viruses, Trojan Horses, worms, spyware, or other similarly destructive or malicious code; and (iii) to your knowledge, the Originator Data complies with all existing federal, state and local laws.

9.      Privacy. We respect your privacy and are committed to protecting it. Our Privacy Policy, https://www.amberengine.com/privacy-policy, governs the processing of all personal data collected from you in connection with your purchase of products or services.

10.      Indemnity. You agree to hold harmless, indemnify, and defend us, and (as applicable) our subsidiaries, affiliates, officers, agents, and employees, from and against any third party claim, action, proceeding liability, loss, damage, cost or expense, including without limitation, attorneys’ fees, experts’ fees and court costs as provided herein, arising from or in any way related to (a) any breach of the provisions of Sections 2 or 8 or (b) any breach (or claim or threat thereof that, if true, would be a breach) of any of your representations or obligations under either these Terms, including the payment of all amounts that a court or arbitrator awards or that you agree to in settlement of any of the foregoing, as well as any and all reasonable expenses or charges as they are incurred by us or any other party indemnified under this Section 10 in cooperating with the defense of any of the foregoing. In such a case, we will provide you with prompt written notice of such claim, suit or action.

11.      Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

12.      Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.

13.      Dispute Resolution and Binding Arbitration.
(a)      YOU AND AMBER ENGINE ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b)      The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this Section 13. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
(c)      You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR AMBER ENGINE WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.

14.      Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 14 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.

15.      No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Amber Engine.

16.      No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.

17.      Notices.
(a)     To You. We may provide any notice to you under these Terms by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current.

(b)     To Us. To give us notice under these Terms, you must contact us as follows: support@amberengine.com. We may update the contact information for notices to us by posting a notice on the Site.

18.      Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.

19.      Entire Agreement. These Terms, the license agreement relating to any product or service you obtain on or through this Site, our Website and Service Terms of Use (https://www.amberengine.com/retailer-terms) and our Privacy Policy (https://www.amberengine.com/privacy-policy) will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.