Amplespot Subscription Terms of Service
Last updated: December 22, 2017
This Amplespot Subscription Terms of Service ("Agreement") is entered into by and between the Amplespot entity set forth below ("Amplespot") and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing, using or recelling the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Amplespot pursuant to any Amplespot ordering documents, online registration, order descriptions or order confirmations referencing this Agreement and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Subscription referencing this Agreement.
As used in this Agreement, "Amplespot" means Ampletime Limited, Company registered in England and Wales, Company number 08021484.
Modifications to this Agreement: From time to time, Amplespot may modify this Agreement. Unless otherwise specified by Amplespot, changes become effective for Customer upon renewal of Customer's current Subscription (as defined below) or entry into a new Subscription. Amplespot will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription or entering into a new Subscription, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Amplespot specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"AUP" means Amplespot's Acceptable Use Policy, available at https://amplespot.com/en/aup or a successor URL.
"Contractor" means an independent contractor or consultant who is not a competitor of Amplespot.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about End Users that are collected from the Customer Properties using the Services.
"Customer Properties" means Customer's venues, websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to interact with End Users.
"WiFi Admin Portal" means Amplespot's user interface for accessing and administering the Services that Customer may access via the web.
"Specifications" means the documentation, manuals and specifications describing the operation, use, characteristics, capabilities and performance of the Services as issued by Amplespot from time to time.
"Amplespot Firmware" means certain software code, software development kits (SDKs) or other code provided by Amplespot for deployment on Customer equipment.
"Customer Equipment" means routers, WiFi access points, personal computers, servers or any other devices where Amplespot Firmware may or may not run and which are being used to authenticate the End Users in conjunction with Services provided by Amplespot.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"Splash Page" means the access page (whether or not branded by the Customer) through which Users login in order to access the Internet or other similar compatible computer network.
"End Users" (in the singular, "End User") means any individual natural person who accesses the Internet or other services by means of a Customer Equipment.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Service" or "Services" means Amplespot's proprietary software-as-a-service solution(s), including but not limited to the WiFi Admin Portal, application programming interfaces (APIs), Amplespot Code and Amplespot Firmware.
"Taxes" means any sales, use, GST, VAT, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Amplespot.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by Amplespot that are integrated with Services as described in the Specifications.
"Billable Resource" means any billable Services such as but not limited to Access Point license, Zone License, Login Session. The definitions of all billable items are set out in the Subscription Plans as accessed through the Wi-Fi Admin Portal from time to time.
"Subscription Plan" means a set of Billable Resources Customer agreed to procure from Amplespot at agreed price, as accessed through the Wi-Fi Admin Portal.
"Subscription Period" means such period as is specified in relevant Subscription Plan as accessed through the Wi-Fi Admin Portal.
"Subscription" means a non-exclusive term license in respect of provisioning of the Services for the Subscription Period.
"Partner" means Amplespot authorised distributor or authorised reseller of the Service.
2. Amplespot Services
2.1. Services Overview. Amplespot's Services are a suite of software-as-a-service solutions and deployable software (firmware) code. The Services are designed to enable Customer to provide wireless (WiFi) and wired connectivity to its End Users and manage authorization and communications through the entire lifecycle of their relationship with Customer and to provide a WiFi Admin Portal for accessing and managing devices and access Customer Data regarding those End Users. Customer may import and export Customer Data between the Services and certain Third-Party Platforms through supported integrations. The Services also include Amplespot Firmware which may be deployed on Customer Equipment to enable use of the service by the End Users.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Subscription Plan (each, a "Subscription"). Customer will purchase and Amplespot will provide the specific Services as specified in the applicable Subscription Plan.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Specifications and any scope of use restrictions designated in the applicable Subscription Plan. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on Amplespot's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy Amplespot Firmware on Customer Equipment in order to enable the use of the Services as further described below.
2.4. Deployment of Amplespot Firmware. Subject to all of the terms and conditions of this Agreement, Amplespot grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Period to copy the Amplespot Code in the form provided by Amplespot on Customer Equipment solely to support Customer's use of the Service and otherwise in accordance with the Specifications and this Agreement. Customer may install Amplespot Firmware on the Customer Equipment in order to enable features of the Services. Customer acknowledges that any changes made to the Customer Properties after initial installation of Amplespot Firmware may cause the Services to cease working or function improperly and that Amplespot will have no responsibility for the impact of any such Customer changes.
2.5. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Amplespot); (c) copy or modify the Services or any Specifications, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by Amplespot" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.7. Amplespot APIs. If Amplespot makes access to any APIs available as part of the Services, Amplespot reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Amplespot may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Amplespot believes that Customer's usage is in breach of this Agreement or may negatively affect the Services.
2.8. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Amplespot (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Plan. If Customer does not enter into a paid Subscription, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AMPLESPOT WILL HAVE NO WARRANTY, INDEMNITY, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3. Customer Data
3.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Amplespot or collected by use of Amplespot Services. Subject to the terms of this Agreement, Customer hereby grants to Amplespot a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data. Amplespot does not provide an archiving service. Amplespot agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Period. Amplespot expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations.
a) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
b) Social Media Data.
ii. Restrictions. Customer agrees not to use any Social Media Data and other data obtained via the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, sending electronic communications (including email) in violation of applicable Law, or any other activity or purpose that may be identified as prohibited by Amplespot from time to time.
3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Amplespot from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Amplespot at Customer's expense.
Notwithstanding the foregoing sentence, (a) Amplespot may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Amplespot's prior written consent, unless the settlement fully and unconditionally releases Amplespot and does not require Amplespot to pay any amount, take any action, or admit any liability.
Amplespot agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, Amplespot will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Amplespot's control.
5. Third-Party Platforms
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Amplespot to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Amplespot has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Amplespot does not guarantee that the Services will maintain integrations with any Third-Party Platform and Amplespot may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer.
6.1. Amplespot Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Amplespot or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Specifications and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing (collectively, "Amplespot Technology"). Except as expressly set forth in this Agreement, no rights in any Amplespot Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for Amplespot Firmware in the format provided by Amplespot.
7.1. Subscriptions and Renewals. Unless specified otherwise, each Subscription will automatically renew for additional Subscription Period unless either party gives the other written notice of termination prior to expiration of the then-current Subscription. The termination notice can be given via “Your Subscription” page on the WiFi Admin Portal, with termination effective at the end of the current Subscription Period.
7.2. Fees and Payment. All fees are as set forth in the applicable Subscription Plan and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Subscription Plan. Except as expressly set forth in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Subscription Plan. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Amplespot receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments may be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply:
- Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Amplespot (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Period for all fees accrued as of that date (if any) in accordance with the applicable Subscription Plan. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
- Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
- Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Amplespot and Amplespot may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
- Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Subscriptions" page on the WiFi Admin Portal.
- Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription by sending Amplespot notice of non-renewal to firstname.lastname@example.org or via the WiFi Admin Portal in accordance with Section 7.1 (Subscriptions and Renewals). As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription, Amplespot will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Period, after which Amplespot will not charge Customer's Credit Card for any additional fees.
7.4. Invoice Payments. If you are purchasing the Services by paying the invoices issued by Amplespot via the bank transfer ("Invoice Payments"), the following terms apply:
- Variable Charges. Customer acknowledges and agrees that the amount billed each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.
- Transaction Fees. Fees and charges may be applied by the banks and other institutions to the payments made by Customer to the Amplespot. Customer agrees that it is its sole responsibility to pay these fees and charges.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription, Amplespot will invoice the Customer for any outstanding fees for Customer's use of the Services during the Subscription Period, after which Amplespot will not invoice for any additional fees.
7.5. Purchasing via Partners. If you acquire access to the Services via an Amplespot’s Partner, ("Partner Payments") and paying the Subscription Plan fees to Partner bank account and not to the Amplespot bank account (via the credit card, bank transfer or any other means), then this Agreement does not apply to you but, unless specified otherwise, apply to the Partner.
7.6. Suspension of Service. Unless specified otherwise, if Customer's account is seven (7) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Amplespot reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Amplespot also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the AUP.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscriptions.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Subscriptions) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Amplespot Technology) and delete (or, at Amplespot's request, return) any and all equipment which may have been provided to Customer by Amplespot, copies of the Specifications, any Amplespot’s passwords or access codes and any other Amplespot Confidential Information and property in its possession. Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it may have no further access to any Customer Data input into any Service, and that Amplespot may delete any such data as may have been stored by Amplespot at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.6 (General Restrictions), 2.8 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 7.4 (Invoice Payments), 7.5 (Purchasing via Partners), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information) and 16 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. Amplespot warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Specifications. Amplespot's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Amplespot to use commercially reasonable efforts to correct the reported non-conformity, or if Amplespot determines such remedy to be impracticable, either party may terminate the applicable Subscription and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Period. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES ARE PROVIDED "AS IS". NEITHER AMPLESPOT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Amplespot does not warrant that Customer's use of THE Services will be uninterrupted or error-free, nor does Amplespot warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss or corruption. AMPLESPOT SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. AMPLESPOT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AMPLESPOT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
During the Subscription Period of each Service, Amplespot will provide the Customers with technical support in accordance with Amplespot’s Support Policy available at https://amplespot.com/supportpolicy or a successor URL ("Support Policy").
11. Availability and Service Credits
The Services are available subject to Amplespot’s Service Level Agreement available at https://amplespot.com/en/sla or a successor URL ("SLA").
12. Limitation of Remedies and Damages
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap. AMPLESPOT'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AMPLESPOT DURING THE PRIOR SIX (6) MONTHS UNDER THIS AGREEMENT.
12.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.6 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 14 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
12.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Amplespot will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes a UK patent, UK copyright, or UK trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Amplespot (including reasonable attorneys' fees) resulting from such claim, provided that Amplespot will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Amplespot to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer's use of a Service is (or in Amplespot's opinion is likely to be) enjoined, if required by settlement or if Amplespot determines such actions are reasonably necessary to avoid material liability, Amplespot may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Period that was paid by Customer but not rendered by Amplespot.
The foregoing indemnification obligation of Amplespot will not apply: (1) if such Service is modified by any party other than Amplespot, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Amplespot, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; or (6) if Customer settles or makes any admissions with respect to a claim without Amplespot's prior written consent. THIS SECTION 13 SETS FORTH AMPLESPOT'S AND ITS SUPPLIER'S' SOLE LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
14. Confidential Information
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.
Any Amplespot Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Amplespot without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Amplespot, the subcontractors referenced in Section 16.7 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14.
The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of Amplespot, Customer agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on Amplespot's web site and in Amplespot promotional materials. Customer agrees that Amplespot may disclose Customer as a customer of Amplespot.
16. General Terms
16.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3. Governing Law and Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute" specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Amplespot it must be emailed to email@example.com and sent via mail to:
109 Buspace Studios, Conlan Street
London, W10 5AP, United Kingdom
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved as set forth below.
b) Governing Law and Jurisdiction. Customer agrees that any claim which is now subject to the dispute resolution as set out in this section 16.3 will be governed by and construed in accordance with the laws of England and Wales. By using Amplespot Services Customer irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Services (including non-contractual disputes or claims).
16.4. Amendments and Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
16.5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Amplespot may make changes to the Services, and Amplespot will update the applicable Specifications accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Amplespot's obligations as compared to those reflected in such terms as of the Effective Date).
16.6. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
16.7. Subcontractors. Amplespot may use the services of subcontractors and permit them to exercise the rights granted to Amplespot in order to provide the Services under this Agreement, provided that Amplespot remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
16.8. Summons. Nothing in this Agreement prevents Amplespot from disclosing Customer Data to the extent required by law or court orders, but Amplespot will use commercially reasonable efforts to notify Customer where permitted to do so.
16.9. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
Previous version of these Amplespot Subscription Terms of Service