Terms of service

These terms govern the advertising management services provided by Kovalchick Analytics, the trading name of Mathew Kovalchick, a sole proprietor based in Venice, California ("I", "me", "my"), to you, the client ("you", "your"). They apply from the date you accept a written proposal, pay a first invoice, or grant me access to an Amazon account, whichever happens first.

1. What the service is

I manage Amazon Sponsored Products advertising on your behalf, at the tier stated in your proposal. Depending on tier that means either producing written recommendations for you to apply yourself, or making changes to bids, budgets, negative keywords, campaign status and keyword state directly in your advertising account through Amazon's official API.

Work is performed on a weekly cycle unless your proposal states otherwise. The scope of each tier, including what is not included, is described at kovalchickanalytics.com/pricing and on the how it works page, and those descriptions form part of these terms.

What is not included

Unless your proposal says otherwise in writing, the service does not include Sponsored Brands, Sponsored Display, Amazon DSP, listing copy or creative, photography, product photography, brand registry work, inventory or supply chain management, account health or suspension work, or advertising on any platform other than Amazon.

2. Authority to act on your account

You authorise me to access your Amazon advertising account and, where separately granted, your Amazon selling account, and on the Execute, Growth and Continuous tiers to make changes of the kinds listed above. This authority is granted through Amazon's own permissions and consent mechanisms.

You remain the owner of your Amazon accounts and the advertiser of record at all times. You may revoke my access yourself, immediately, through Amazon's interface, without notice to me. I will not attempt to retain access after termination and I will confirm in writing when my access has been removed.

3. Automated decision making, disclosed

You should understand clearly how this service works. Changes to your account are produced by an automated software system that I built, own and operate. It runs on a schedule without a human approving each individual change, subject to the guards described on the how it works page. I review its output and its behaviour, I set its configuration, and I am accountable for it, but I do not hand approve every bid.

This is the product, not a shortcut. If you require every change to be approved by a person before it is made, the Advisory tier exists for exactly that and you should be on it.

4. Your responsibilities

• Grant and maintain the access the service needs. If access lapses, work stops and fees continue.
• Provide accurate product costs, selling prices and fulfilment costs, and tell me when they change. Every profitability calculation depends on these. If they are wrong, the output will be wrong, and that is outside my control.
• Pay Amazon directly for your ad spend. I never hold, invoice or process your advertising budget.
• Maintain your listings, inventory, pricing and account health. Advertising cannot fix a listing or a stockout.
• Comply with Amazon's policies. You are responsible for your product claims, your listing content and your intellectual property.
• Tell me promptly if you or anyone else makes significant manual changes to a campaign the service is managing.

5. Fees, billing and notice

• Fees are as stated in your proposal and published at kovalchickanalytics.com/pricing. They are flat monthly amounts. No fee is calculated as a percentage of your advertising spend or your sales.
• Billing is monthly in advance, on the 1st of the month, prorated for a partial first month. Payment is due within 7 days of invoice. Where an engagement is contracted through a third party platform such as Upwork, that platform's own payment, escrow and fee terms govern instead, and the agreed contract there controls the amount and timing.
• Tier fees are banded by your trailing three month average monthly ad spend. If you cross a band boundary I will notify you in writing before any change to your invoice takes effect.
• I may change fees on 30 days written notice. You may terminate before the change takes effect.
• Either of us may terminate for convenience on 30 days written notice. There is no minimum term, no termination fee and no clawback of fees already earned. Fees already paid for a period are not refunded except where I have failed to deliver the service for that period.
• Either of us may terminate immediately on written notice if the other materially breaches these terms and does not cure it within 10 days, or if the other becomes insolvent.
• If an invoice is 15 days overdue I may suspend the service. I will notify you before I do.

6. No guarantee of results

I do not guarantee any advertising outcome. Not a level of sales, not a return on ad spend, not an advertising cost of sales, not a rank, not a profit figure, not an improvement of any kind. Amazon's auction dynamics, its algorithm changes, your competitors' bidding, seasonality, your inventory position, your pricing and your listing quality all materially affect results and none of them is within my control.

Historical results described on this website, including results on my own brand, are specific to those accounts and time periods. They are not a prediction and they are not a representation about what your account will do.

7. Limitation of liability

To the maximum extent permitted by law:

• My total aggregate liability arising out of or relating to these terms or the service, on any theory of liability, is limited to the total fees you actually paid me in the three months immediately preceding the event giving rise to the claim.
• Neither of us is liable for indirect, incidental, special, consequential, exemplary or punitive damages, or for lost profits, lost revenue, lost sales, lost data, loss of goodwill, or business interruption, even if advised of the possibility.
• Advertising spend is not a damage recoverable from me beyond the cap above. Spend placed into the Amazon auction, whether by my changes or otherwise, is spend you authorised by engaging an advertising management service.

These limits do not apply to my gross negligence, wilful misconduct, or fraud, or to anything that cannot be limited under applicable law.

8. Indemnification

You will indemnify and hold me harmless from claims arising out of your products, your listing content, your product claims, your intellectual property, your violation of Amazon policy, or your breach of these terms. I will indemnify and hold you harmless from claims that my software, as provided by me, infringes a third party's intellectual property.

9. Confidentiality and data

Each of us will keep the other's non public business information confidential and use it only to perform or receive the service. My obligations regarding your Amazon data, its security, retention and deletion, are set out in the privacy policy and the data security page, which form part of these terms.

Your account data is yours. Your campaigns, keyword history, performance data and the full log of changes made by the service belong to you, during the engagement and after it. On termination I will provide your change log on request and will not retain access to your accounts.

I retain ownership of my software, models, methods and documentation. Nothing in these terms transfers any right in them to you, and nothing in them entitles me to use your data for any purpose other than serving you.

10. Non exclusivity and conflicts

I serve multiple clients and I operate my own Amazon brand in the physical therapy and recovery product category. I will disclose in writing, before you engage, if I believe your products compete directly with mine or with an existing client's. Client account data is never used to inform another client's account or my own.

11. Platform dependency and force majeure

Neither of us is liable for failure to perform caused by events beyond reasonable control. For this service that specifically and expressly includes: changes to, degradation of, outages in or deprecation of the Amazon Advertising API or the Amazon Selling Partner API; revocation, suspension or non renewal of my API access or developer authorisation; suspension or restriction of your Amazon selling or advertising account; and changes to Amazon's policies, reporting or advertising products. These are the most likely disruptions to this service and you should understand that they sit outside my control.

12. General

• Governing law and venue. The laws of the State of California, without regard to conflict of laws rules. Exclusive venue in the state and federal courts located in Los Angeles County, California.
• Dispute resolution. We will attempt to resolve any dispute in good faith for 30 days before commencing proceedings.
• Independent contractor. I am an independent contractor. These terms create no partnership, joint venture, employment or agency relationship beyond the limited authority to act on your advertising account described in section 2.
• Assignment. Neither of us may assign these terms without the other's written consent, except in connection with a sale of substantially all of the business.
• Entire agreement and order of precedence. These terms, your proposal, the privacy policy and the data security page are the whole agreement. If they conflict, your signed proposal controls, then these terms.
• Severability and waiver. If a provision is unenforceable the rest stands. A failure to enforce a right is not a waiver of it.
• Notices. By email, to kovalchickanalytics@gmail.com and to the address you nominate. Effective on the next business day after sending.
• Changes to these terms. I may update them on 30 days written notice to current clients. Continued use after the notice period is acceptance. You may terminate instead.