TERMS AND CONDITIONS
IMPORTANT – READ CAREFULLY. THESE TERMS AND CONDITIONS DEFINE THE RELATIONSHIP BETWEEN THE AMHERST GROUP LLC AND ITS SUBSIDIARIES (“AMHERST,” “WE,” “OUR,” OR “US”) AND THE PERSON (“USER” OR “YOU”) ACCESSING THE AMHERST WEBSITE AT THIS URL, INCLUDING ALL ASSOCIATED WEBPAGES AND ANY AMHERST MOBILE APPLICATIONS (EACH AND COLLECTIVELY, THE “SITE”).
- Your Agreement to Terms and Conditions
These Terms and Conditions (“Terms”) constitute a legally binding agreement between Amherst and you. YOU ACKNOWLEDGE AND AGREE THAT BY USING THE SITE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT. YOU WILL NOT BE PERMITTED TO USE THE SITE UNLESS AND UNTIL YOU ACCEPT THESE TERMS AND ANY OTHER RULES OR POLICIES THAT AMHERST MAY CREATE AND MAKE AVAILABLE ON THE SITE FROM TIME TO TIME.
You acknowledge that you have read these Terms and accept, understand, and will be bound by them. You further acknowledge that these Terms, together with Amherst’s additional Online Privacy Statement, which is incorporated herein by reference, represent the complete and exclusive statement of the agreement between Amherst and you relating to your access or use of the Site and supersede any proposal or prior agreement, oral or written, and any other communications between the parties regarding such matters.
If you are accepting these terms and conditions on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. If you cannot confirm the foregoing, then you must not agree to these terms and conditions and may not use the site.
2. Amendments to Terms
We post the effective date of these Terms above. Amherst may amend these Terms at any time by posting the revised Terms on the Site with an updated effective date. You are responsible for regularly reviewing these Terms. You can review the most current version of the Terms at any time at [URL].
We may terminate these Terms at any time by suspending or terminating access to the Site and/or otherwise notifying you of our decision. Your continued use of the Site after we have posted revised Terms signifies your acceptance of such revised Terms. No amendment or modification of these Terms will be binding unless in writing and signed by Amherst’s duly authorized representative or posted to the Site by such representative.
3. Use of the Site
Amherst provides you with access to and use of the Site subject to your compliance with the Terms and all applicable laws and regulations. No material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way, except for as specifically allowed in the Terms.
User Eligibility. Use of the Site is restricted to eligible users. You must be 18 years of age or older and, have the capacity to form a binding contract to be eligible to use the Site. In addition, you cannot be a person barred from accessing the Site under the laws of the United States or any other jurisdiction. Further, you must not be a competitor of Amherst in the real estate or financial services industries or their employees, agents or contractors as use of the Site by such persons is strictly prohibited. Employees of competitors may use this Site for their persona non-commercial use so long as information is not disclosed to a competitor business, used for a commercial purpose or used for any purpose of competing with Amherst.
Registered Users. We reserve the right to restrict access to the Site (or portions thereof) to registered users. In order to register you must create a user account by selecting a user name and password and providing information such as your name, address, company information, telephone number and email address. In the event that any area of the Site requires you to register with us prior to our granting you access to such areas of the Site, you agree to provide truthful information and to keep that information up to date. Registered users are responsible for the security of their user name and password which cannot be shared or transferred; any instructions or communications using the user name and password will be considered authorized by the registered user.
User Representations. By using the Site you represent that that you are 18 years of age or older, have the legal capacity to contract, are not barred from accessing the Site by law and are not a competitor of Amherst in the real estate or financial services industry or an employee, agent or contractor of such a competitor.
All Users represent and warrant to Amherst that (a) all information that they provide to Amherst is accurate and truthful; (b) acceptance and use of the Site pursuant to these Terms and Conditions does not violate any applicable law or other contract or obligation to which they are a party or are otherwise bound; (c) they will not use the Site in connection with any fraudulent or illegal activity or in any manner which interferes with the operations of the Site; and (d) they have the right, power, and authority to enter into these Terms.
The Site and all of its contents, including without limitation text, images, videos, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, artwork, algorithms, functionalities, features and computer code, design, structure, “look and feel” and arrangement of the content available on the Site, (“Content”), are our property or that of our suppliers or licensors and are protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from this Site in whole or in part, for any public or commercial purpose without our specific written permission. All text,
The Site is licensed, not sold, to User for use only under these Terms, unless a specific Amherst product or service is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to User’s acceptance of that separate license agreement. Amherst reserves all rights not expressly granted to User. This agreement is subject to occasional amendment in accordance with the provisions above.
Amherst’s License to You. Amherst grants to you a limited, personal, nontransferable, nonexclusive, non-sublicensable license to use the Site and to use the information and services contained in the Site on any supported computing and/or mobile device that User owns or controls. This license does not allow User to use the Site on any device that User does not own or control.
User may not distribute or make the Site available over a network where it could be used by multiple devices at the same time. User may not rent, lease, lend, sell, redistribute or sublicense the Site. User may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Site, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Site). Any attempt to do so is a violation of the rights of Amherst and its licensors. If User breaches this restriction, User may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Amherst that replace and/or supplement the original Site, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
We do not grant any license or other authorization to any user to use our trademarks registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on this Site.
The license granted pursuant to these Terms and Conditions is solely for your personal use (but not for resale or redistribution) and may not be used for any other purposes. You have no right or claim of right to any Site content or any unique ideas found on the Site. No ownership rights are granted to you hereunder and no title is transferred hereby.
Your License to Amherst. You shall be solely responsible for your own submissions and the consequences of posting or publishing them. You grant Amherst a non-exclusive, royalty-free perpetual license to use any content you post on the Site for any purpose to the fullest extent permitted by applicable law, subject only to the express provisions of these Terms.
The Site may enable access to Amherst’s and third party services and web sites (collectively and individually, the “Services”). Use of the Services requires Internet access. Some Services may require that you register and create an account. Other Services may only require that you provide certain personal information without creating an account.
The Site may allow you to make payments online for certain Services. Payments may be made by bank transfer or credit or debit card and are processed by a third party payment processor. You may be required to register and create an account in order to be able to make a payment online.
The Site may allow you to transmit applications and other documents to us online in connection with the Services. You may be required to register and create an account to be able to use this feature. In some cases third parties assist us with providing these Services.
6. Information, Products and Services Offered are Subject to Our Acceptance
Information on this Site is not intended for distribution to, or use by, any persons or entities in any jurisdictions or countries where such distribution or use are not authorized or licensed, or where any content of or transaction on this Site is unlawful. Users of this Site use the Site on their own initiative and are responsible for compliance with local laws; nothing offered on this Site is offered exclusively on this Site, except these disclosures. None of the products or Services referenced on this Site shall constitute an offer to contract or an offer of credit.
This Site may provide general information about Amherst and the products or Services offered by Amherst. Information on the Site does not constitute an offer to sell or a solicitation of any particular product or Service. Some products or Services are not available in all states, and the products and Services are generally not available for purchase outside the United States. Your eligibility for any particular products and Services referenced on this Site is subject to final determination, restrictions and acceptance by us or the affiliate that issues the product or Service.
Amherst may discontinue or make changes to the information, products, licenses or Services described herein at any time. Any dated information is published as of its publication date only. Amherst does not undertake any obligation or responsibility to update or amend any such information. Amherst reserves the right to terminate any or all offerings without prior notice to the user. Furthermore, by offering information, products or Services via this Site, no solicitation is made by Amherst to any person to use such information, products or Services in jurisdictions where the provision of information, products or services is prohibited by law.
Unless otherwise addressed in these Terms, your use of the Site is subject to Amherst’s additional Online Privacy Statement. It is important that you read and understand the terms of the Online Privacy Statement. By entering into these Terms and Conditions, you represent that you have read, understood and accepted the Online Privacy Statement. Amherst may cooperate with and disclose information (including your personal information) to any authority, government official or third party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement, whether related or unrelated to your use or misuse of this Site as more particularly described in the Online Privacy Statement.
You also agree that Amherst may collect and use technical data and related information, including but not limited to, technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of product support and other services (if any) related to the Site as more particularly described in the Online Privacy Statement.
8. Consent to be Contacted
If you provide, or have provided, a telephone number or email address to us (either through the Site or by other means), you expressly agree that we (or an agent on our behalf) may contact you at that number and/or address in order to provide you with informational and service messages, including via text message, push notification and/or by using automated telephone technology or artificial or prerecorded voice messages. You represent and warrant that you are the authorized subscriber for the telephone number(s) or email addresses you have provided. You may revoke your consent to be contacted at such email address by emailing us at Compliance@amherst.com.
We may provide you with the opportunity to interact with us via text messages including receiving messages about events, special offers, special discounts, your transactions, or other information. Mobile subscribers can enroll through the website, at checkout, or through their mobile device. By opting in, you agree to receive our updates and offers via text from us and our SMS service provider, and to be bound by these Terms and our Online Privacy Statement. If your mobile operator is not participating, you will not receive a reply to your messages. Some operators may not support some services at the process offered. Pre-paid users may not be able to participate. Check with your mobile operator.
By opting in to receiving text messages you agree that you:
- are the authorized user of the mobile device and owner of the mobile phone number provided in the enrollment process;
- give us and our agents express permission to send text messages (including auto-dialed, pre-recorded and/or promotional texts) to the mobile number you provide until you tell us to stop;
- agree to receive text messages from us even if the registered mobile number is on a Do-Not-Call list.
Participation is voluntary. You are not required to participate in order to purchase products or Services from us. Message frequency may vary. Standard message and data rates apply.
If you change carriers or change or deactivate your mobile number it is your responsibility to opt out of our text messaging program before making any such change. Failing to do so will be a material breach of these program terms.
How to cancel. To stop receiving promotional updates and offers please reply STOP to any text at any time and receive one final text acknowledging receipt of your STOP request
To get help with text messages. Reply HELP to any text at any time. We do not charge any fee for your participation in the text message program. Check with your wireless carrier for details regarding message or data rates or charges that may apply.
Please see our Online Privacy Statement for additional information. We do not share mobile information outside of our corporate group, our affiliates and their authorized service providers.
9. Security of Account Credentials
You are solely responsible for maintaining the confidentiality of your Site log-in credentials. You agree to notify us immediately if you have reason to believe that someone is using the Site or your account without your permission. Except to the extent required by law, Amherst will not be responsible for any losses arising out of your failure to notify us of unauthorized use, or any loss or damage you may incur as a result of someone else using your account, either with or without your knowledge. You agree to indemnify and hold harmless Amherst and its managers, officers, equity holders, employees, partners, parents, subsidiaries, agents, and licensors, as applicable, for any improper, unauthorized or illegal uses of your log-in credentials.
10. Modifications to the Site and Content
The Site is operated and maintained by Amherst and/or its licensors and suppliers (collectively, “Licensors and Suppliers”). Subject to the limited rights to use the Site pursuant to these Terms, Amherst retains all right, title and interest in and to the Site, including all related intellectual property contained therein. You acknowledge that Amherst may enhance, supplement, terminate, modify, suspend, discontinue or remove Content, features, and/or hours of availability on the Site at any time for any reason without notice to you, without liability to you or any third party for doing so, and that Amherst shall have no duty to update any such Content.
You acknowledge that there may be inaccuracies or typographical errors in Content on the Site from time to time. Amherst specifically disclaims all liability for such inaccuracies or errors.
All rights, title and interest in and to the user interface and Content on or through the Site shall belong to Amherst or its Licensors and Suppliers, including all modifications thereof and enhancements thereto.
Unpublished rights reserved under the copyright laws of the United States.
11. User Submissions
Any information submitted to Amherst via this Site shall become and remain the property of Amherst and its affiliates. Amherst and its affiliates shall be free to use such information and any idea, concepts, know-how or techniques contained in that information for any purpose. All ideas, expressions and inventions (excluding any nonpublic personal information) submitted to the Amherst via this Site shall be deemed and remain the property of Amherst. By submitting any content to Amherst you represent and warrant that:
- you are the sole author and owner of the intellectual property rights thereto;
- all “moral rights” that you may have in such content have been voluntarily waived by you;
- all content that you post is accurate;
- you are at least 18 years old; and that
- use of the content you supply does not violate these Terms and will not cause injury to any person or entity.
Amherst shall not be subject to any obligations of confidentiality regarding such information, except as required by law, as agreed in a writing executed by all parties, or as set forth in the privacy practices or policies applicable to your relationship with us.
Users should be aware that information sent by e-mail may not be secure and may be intercepted by third parties. Please do not use e-mail to send Amherst any confidential information or information which will need immediate attention. Confidential information and matters needing immediate attention may be addressed by contacting us at Compliance@amherst.com or calling 1-833-496-0298.
12. Exclusivity; Third-Party Content
AMHERST HAS NO CONTROL OVER THIRD PARTY MATERIALS, THIRD PARTY SITES, OR THE CONTENT, TRANSACTIONS OR SERVICES ASSOCIATED WITH THEM. AMHERST CANNOT AND DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT THE CONTENT CONTAINED IN THIRD PARTY MATERIALS OR THIRD PARTY SITES, INCLUDING OTHER LINKS, IS ACCURATE, LEGAL OR INOFFENSIVE. AMHERST HAS NO LIABILITY FOR THIRD PARTY SITES’ FAILURE TO PERFORM OR ANY ERRORS IN OR OMISSIONS REGARDING ANY INFORMATION WITHIN THIRD PARTY SITES. AMHERST DOES NOT REPRESENT OR WARRANT THAT A THIRD PARTY SITE WILL NOT CONTAIN COMPUTER VIRUSES OR OTHER HARMFUL CODE THAT COULD IMPACT YOUR COMPUTER OR OTHER WEB ACCESS DEVICE. AMHERST DISCLAIMS ANY AND ALL LIABILITY FOR, OR IN CONNECTION WITH, ANY TRANSACTION OR ACTIVITY RELATED TO THIRD PARTY SITES. If you have a specific dispute or concern related to the content, product or services that needs to be addressed by a Third Party Site, you should contact the Third Party Site and not Amherst.
In addition, Third Party Materials and Third Party Sites that may be accessed from, displayed on or linked to from the Site may not be not available in all languages or in all countries. Amherst makes no representation that such materials or sites are appropriate or available for use in any particular location. To the extent you choose to access such materials or sites, you do so at your own initiative and you are responsible for compliance with any applicable laws, including but not limited to, applicable local laws.
11. Prohibited Uses
Except as expressly provided in these Terms, no part of the Site may be copied, reproduced, republished, posted, publicly displayed, translated, or distributed in any way. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site or any Content, in any manner.
Unauthorized use of Amherst’s Site, including but not limited to unauthorized entry into Amherst’s systems, misuse of passwords, or misuse of any information posted on the Site is strictly prohibited.
Except as expressly provided in these Terms, no part of the Site may be copied, reproduced, republished, posted, publicly displayed, translated, or distributed in any way. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Site or any Content as defined above in any manner.
You may not transfer or copy, without permission, any Content from the computing device on which you originally received Content to any other device, including, without limitation, any computer or another wireless device.
You may not use the Site for illegal or unlawful or malicious activities, or for activities that Amherst deems improper for any reason whatsoever in its sole judgment, including, without limitation, by trespass or burdening network capacity. In addition to the foregoing, while using the Site, you may not: (a) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (b) defame, abuse, harass, stalk, intimidate, bully, threaten, defame, or otherwise infringe or violate the rights of any other party, including without limitation others’ privacy rights or rights of publicity; (c) access or use (or attempt to access or use) another person’s account or data without permission, or solicit another’s log-in information; (d) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (e) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site; (f) “frame” or “mirror” any portion of the Site; (g) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site; (h) harvest or collect information about or from other users of the Site; (i) send or otherwise post unauthorized commercial communications (such as spam); (j) engage in unlawful multi-level marketing, such as a pyramid scheme; (k) post content that is hateful, threatening or pornographic, incites violence, or contains nudity or graphic or gratuitous violence; (l) use the Site for any illegal activity; (m) probe, scan or test the vulnerability of the Site, nor breach the security or authentication measures on the Site or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site; (n) access or use any portion of the Content if you are a direct or indirect competitor of Amherst, or provide, disclose or transmit any portion of the Content to any direct or indirect competitor of Amherst; (o) use or distribute any Content, including Content that has been verified or confirmed by you or anyone else, to directly or indirectly create or contribute to the development of any database or product; or (p) facilitate or encourage any violations of these Terms.
Amherst reserves the right to take preventative or corrective actions to protect itself and its users. Your use of the Site is conditioned in part on your compliance with the rules of conduct provided herein, and your failure to comply may result in termination of your access to and use of the Site and liability for damages caused by your noncompliance. Amherst is not in any way responsible for any non-conforming use by you.
12. Proprietary Rights
As between you and Amherst, (or other company whose marks appear on the Site), Amherst (or the respective company) is the owner and/or authorized user of any trademark, registered trademark and/or service mark appearing on the Site and is the copyright owner or licensee of the Content and/or information on the Site, unless otherwise indicated.
Except as otherwise provided herein, use of the Site does not grant you a license to any Content, features or materials you may access on the Site and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Content, features or materials, in whole or in part. Any commercial use of the Site is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Content or screens for any purpose except as otherwise provided by Amherst. If you make use of the Site, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material or any other intellectual property by including them on the Site.
The information on the Site including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including copyright law.
Product names, logos, designs, titles, words or phrases may be protected under law as the trademarks, service mark or trade names of Amherst or other entities. Such trademarks, service marks and trade names may be registered in the United States and internationally.
The Amherst logos and service names are trademarks of Amherst (the “Amherst Marks”). Without our prior permission, you agree not to display or use Amherst Marks in any manner. Nothing on the Site should be construed to grant any license or right to use any Amherst Mark without our prior written consent.
13. Copyright Complaints
We respect the intellectual property rights of others and prohibit users from uploading and posting materials that infringes another party’s intellectual property rights. If you believe that your material has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following written information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed upon; (iii) a description of where the material that you claim is infringing is located on the Site; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner of authorized to act on the copyright owner’s behalf. Our copyright agent for notice of claims of copyright infringement on the Site can be reached as follows:
Copyright Agent: Copyright@amherst.com
It is often difficult to determine if your intellectual property rights have been violated or if the Digital Millennium Copyright Act (DMCA) requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove or disable access to the allegedly infringing material pending resolution of the matter. We will terminate the accounts of users that we determine are repeat infringers.
Please note that under Section 512(f) of the Copyright Act any person who makes false claims that material or an activity is infringing may be subject to liability for damages.
14. Disclaimer of Warranties
USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SITE IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH USER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND ANY SERVICES ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. AMHERST AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AND THIRD PARTY SUPPLIERS (COLLECTIVELY, THE “COMPANY PARTIES”) HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, or GUARANTEES WITH RESPECT TO THE SITE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; (B) THE QUALITY, ACCURACY, TIMELINESS, or COMPLETENESS OF THE SITE; (C) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; or (d) CONFORMITY TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY COMPANY PARTY. THE COMPANY PARTIES DO NOT WARRANT AGAINST INTERFERENCE WITH USER ENJOYMENT OF THE SITE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SITE WILL MEET USER REQUIREMENTS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY COMPANY PARTY OR THEIR REPRESENTATIVES SHALL CREATE A WARRANTY. SHOULD THE SITE OR SERVICES PROVE DEFECTIVE, USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
THESE DISCLAIMERS ARE INDEPENDENT OF ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS.
15. Limitations on Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AMHERST BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO ACCESS OR USE THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF OR ACCESS TO THE SITE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF AMHERST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY SERVICES OR CONTENT MADE AVAILABLE OR OBTAINED THROUGH THE USE OF THE SITE, AND ALL USE OF the SITE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS THEREFROM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Amherst’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
If you are dissatisfied with any portion of the Site or the Services, or with any of these Terms and Conditions, your sole and exclusive remedy is to discontinue using the Site and the Services.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD AMHERST, ITS THIRD PARTY VENDORS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM ANY AND ALL LIABILITY, LOSS, CLAIMS, EXPENSES, AND DEMANDS, INCLUDING, BUT NOT LIMITED TO REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY RELATED TO YOUR VIOLATION OF THESE TERMS AND CONDITIONS OR YOUR USE OF THE SERVICES AND INFORMATION PROVIDED AT THIS SITE. Without limiting the foregoing, you will indemnify and hold Amherst harmless with respect to any suits or claims arising out of: (a) your breach of these Terms and Conditions, including, but not limited to, any infringement by you of the copyright or intellectual property rights of any third party; (ii) your fraudulent or malicious use of the Site, or your misuse or abuse of the Site; or (ii) your violation of applicable laws, rules or regulations in connection with your use of the Site.
17. Interpretation; Notices
If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations contained herein, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of the Terms shall continue in effect. A printed version of these Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Except as otherwise specified in these Terms, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email. Except as otherwise expressly provided herein, or as updated from time to time by written notice to you, notices to us must be sent via email Compliance@amherst.com.
Amherst may send notices to you with respect to your use of the Site by sending an email message to the email address provided to us or by sending a letter via U.S. mail to any contact address provided to us. You agree that we may provide notice to you through such means.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise. Amherst may assign its rights and privileges under these Terms, without your consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, or to an affiliate, or in connection with a change in control. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18. Special Notice to Mobile Application Users
With respect to each mobile application we may make available for downloading (each an “App”), by taking the required steps to download the App or create an Account on the App, you are expressly agreeing that you have read, understand and agree to be bound by these Terms and any updates or amendments to these Terms. Check these Terms in the App or online periodically to access our most current Terms. To use the App you must have a mobile device that is compatible with the mobile service. We do not warrant that the App will be compatible with your mobile device. In addition, the App requires the Internet to function properly. We are not responsible for the availability or quality of Internet service during your use of the App. With respect to each instance in which you download an App, we hereby grant you a non-exclusive, non-transferable, non-assignable, revocable license to use an object code copy of the App for one registered Account owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile, reverse engineer or create derivative works of the App, except to the extent that the law expressly prohibits such a limitation on you; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) copy, reproduce, republish, upload, post, transmit or distribute the App in any way, unless specifically allowed in these Terms; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; (v) delete the copyright, trademark and other proprietary rights notices on the App; or (vi) create another app to sniff, phish, scrape, or otherwise monitor the App unless allowed by the platform for all apps on the Android and iOS platforms. You acknowledge that we may, from time to time, issue upgraded versions of the App, and may, depending on your device settings, automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that the terms and conditions of these Terms, as may be revised from time to time, will apply to all such upgrades. You further understand and agree that, if the App on your mobile device is not upgraded, either automatically or manually by you, following the release of an upgraded version of the App, you may be unable to access, utilize or otherwise take full advantage of features, functionality, patches, offers, discounts or rewards enabled by the upgraded version of the App. Similarly, you acknowledge and agree that some updates may not support older model devices resulting in the App no longer working on your device. We shall have no liability to you with respect to your continued use of the App if not upgraded upon release of a new version or your inability to use the App following such an upgrade. The foregoing license grant is not a sale of the App or any copy thereof, and we and our third party licensors or suppliers retain all rights, title, and interest in and to the App (and any copy of the App). Standard carrier data charges may apply to your use of the App. Your use of any App may also be governed by the terms and policies of your mobile network provider, the app store from which you download the App, your device manufacturer or operating system/software provider, and credit card or third party payment provider. Use of an App may transmit data concerning your use of the App to Amherst or to third parties such as your payment provider. This information may include geolocation data or payment data.
Special Terms for Apple Users. Users of our Apps acknowledge that they have reviewed and agree to the terms of the online app marketplace from which they have downloaded the App. The following additional terms and conditions apply with respect to any App that Company provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and us only, and not with Apple, Inc. (“Apple”).
- Your use of our iOS App must comply with Apple’s then-current App Store Terms of Service.
- We, and not Apple, are solely responsible for our iOS App and the services and Content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that we, and not Apple, are responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims pertaining to our iOS App; (ii) any claim that our iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of our iOS App.
- You agree that we, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using our iOS App).
- You and we agree that Apple and Apple’s subsidiaries are third party beneficiaries to these Terms as they relate to your license of our iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of our iOS App as a third party beneficiary thereof.
Amherst, and its Licensors and Suppliers, reserve the right to change, suspend, remove, or disable access to the Site and/or any Services at any time without notice. In no event will Amherst be liable for the removal of or disabling of access to the Site or any such Services. Amherst may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
These Terms and Conditions will continue to be in effect for as long as we allow you access to and use of the Site and the Services, subject to any updates or revisions which we may make from time to time. User rights under these Terms and Conditions will terminate automatically without notice from Amherst if you fail to comply with any term(s) of this agreement, but Amherst reserves the right to terminate your participation privileges at any time, with or without cause.
Upon termination of this agreement, you shall cease all use of the Site.
20. Entire Agreement
These Terms comprise the entire agreement between you and Amherst relating to your access or use of the Site and supersede any proposal or prior agreement oral or written, and any other communications between the parties regarding such matters. There are no agreements, understandings, promises or conditions, oral or written, express or implied, concerning the subject matter of these Terms or in consideration hereof that are not merged herein or superseded hereby, but additional terms may be required in connection with some of the Services. These Terms shall not be modified, terminated, or discharged except by written instrument signed by authorized representatives of the parties hereto.
21. Governing Law
This agreement will be governed by the laws of the state of Texas. The exclusive jurisdiction for any claim, action or dispute with Amherst or relating in any way to your use of the Site will be in the state and federal courts of the state of Texas and the venue for the adjudication or disposition of any such claim, action or dispute will be in Travis County, Texas. Your use of the Site also may be subject to other local, state, national, or international laws.
You may not use or otherwise export or re-export the Site except as authorized by United States law and the laws of the jurisdiction in which the Site was obtained. In particular, but without limitation, the Site may not be exported or re-exported: (i) into any U.S. embargoed countries; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Site, User represents and warrants that User is not located in any such country or on any such list.
The Site and related documentation may be “Commercial Items”, as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users: (i) only as Commercial Items; and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
22. Contacting Us
To contact us with any questions or concerns in connection with these Terms or the Site, or to provide any notice under this Agreement to us please go to Contact Us, send an email to Compliance@amherst.com, or write to us at 5001 Plaza on the Lake, Ste 200, Austin, TX 78746.
Effective as of November 11, 2021.