ARCHIVED VERSION: May 31, 2017
1. SERVICE; SOFTWARE AND SUPPORT
On the terms and subject to the conditions set forth in this Master Service Agreement (“Agreement”), Amplitude will use reasonable commercial efforts to provide Customer the service pursuant to and described in one or more Order Forms to be entered into between Customer and Amplitude from time to time during the Term (as defined below) and as more fully described on the Order Form (“Service”) for the fees listed on the applicable Order Form (the “Fees”). Customer Affiliates shall be entitled to enter into one or more Order Forms with Amplitude pursuant to this Agreement and, in such circumstances, all references in this Agreement to Customer shall be deemed to be applicable to the Customer Affiliate with respect to that particular Order Form unless otherwise explicitly set forth in writing. “Customer Affiliate” shall mean any entity controlling, controlled by or under common control with Customer, where control (including “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or entity, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.
Subject to all the terms of this Agreement, Amplitude hereby grants to Customer, for the term set forth on the applicable Order Form, a non-exclusive, non-sublicensable, non-transferable, non-assignable, right to access and use the Service for Customer’s internal business purposes only. In addition, Amplitude hereby grants to Customer, for the term set forth herein, a non-exclusive, non-sublicensable, non-transferable, non-assignable license to use the Software for Customer’s internal business purposes only. For purposes of this Agreement, “Software” shall include, but not limited to, any SDKs, APIs, documentation, dashboards and report formats made available by Amplitude to Customer.
During the Term, Amplitude will make available to Customer as part of the Service, all generally available enhancements, updates and bug fixes to the Service. In addition, during the Term, Amplitude will also provide Customer with product support. Customer can submit support inquiries via email at firstname.lastname@example.org or on the Amplitude website 24 hours per day. Amplitude standard support hours are 09:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Service.
2. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES
As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Amplitude reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer shall be responsible for the acts or omissions of any person who accesses the Service using passwords or access procedures provided to or created by Customer.
Customer will not (and will not allow any third party) to directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software or Service (or any underlying software, documentation or data related to the Service); modify, translate, or create derivative works based on the Software or Service or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software or Service or any underlying software; use the Service or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Amplitude retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Software and Service and anything developed and delivered under this Agreement. Nothing in this Agreement shall be construed as granting Customer any right, title or interest in or to the Software or Service.
Customer shall be responsible for ensuring that such Equipment is compatible with the Service. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
Customer is solely responsible for ensuring that its use of the Service to collect, process, store and transmit its data including, Customer end-users’ data, (collectively, “Customer Data”) is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its end-users. Customer also maintains all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Customer’s purposes. The Service is not intended for the collection and processing of personal or sensitive data. Customer understands that Amplitude does not assume any responsibility or liability with respect to the processing and handling of this type of data and Customer agrees not to use the Service to collect and process this type of data. All Customer Data is, or shall be, and shall remain the property of Customer. Customer Data shall not be used by Amplitude or its agents other than in connection with providing the Service or support under the terms of the applicable Order Form and this Agreement. Customer hereby grants Amplitude a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, collect, transfer and process, the Customer Data for the sole purpose of Amplitude providing the Service and support to Customer under the terms of the applicable Order Form and this Agreement. In addition, Customer shall own all right, title and interest to the Results obtained by Customer through Customer’s use of the Service. For purposes of this Agreement, “Results” shall mean the data based on Customer Data resulting from Customer’s use of the Service.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party) in the course of satisfying its obligations under the terms of this Agreement. Notwithstanding the foregoing, nothing (except the Software, Service and underlying software, algorithms and information embodied therein as well as Customer Data and Results) will be considered “Confidential Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential” at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure or which a reasonable person would consider confidential.
The Receiving Party agrees to hold all Confidential Information of the Disclosing Party in strict confidence and not to disclose such information to third parties, or use such information for any purposes whatsoever other than pursuant to the terms and conditions set forth in this Agreement and to advise each of its employees and agents of their obligations to keep such information confidential. Even when disclosure is permitted, each party agrees to limit access to and disclosure of the other party’s Confidential Information to its employees and agents on a “need to know” basis only. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Software, Service and underlying software, algorithms and information embodied therein and Customer Data, which shall remain confidential indefinitely). Confidential Information shall exclude all information, which (i) is at the time of disclosure, or thereafter becomes, generally known to the public through no act or omission of the Receiving Party, its employees or agents; (ii) was in the Receiving Party’s possession as shown by written records without any obligation of confidentiality prior to the disclosure by the Disclosing Party and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; or (iii) was independently developed by the Receiving Party without use of the Confidential Information, as evidenced by contemporaneous written records. If Confidential Information is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, the Receiving Party shall promptly notify the Disclosing Party of the facts thereof to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the Disclosing Party, shall reasonably cooperate with the Disclosing Party to obtain such protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or the Disclosing Party waives compliance (in whole or in part) with the terms and conditions of this Agreement, the Receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use all reasonable efforts to ensure that all Confidential Information that is disclosed shall be accorded confidential treatment.
In the performance of the Service, Amplitude is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Service’s performance, provided that the Customer Data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. PAYMENT OF FEES
Customer will pay Amplitude the Fees for the Service as listed on the applicable Order Form. The fees for each renewal term shall automatically increase by five percent (5%) over the Fees paid by Customer for the prior Term. All Fees paid under this Agreement are denominated in US dollars and Customer shall pay Amplitude in US dollars. Unless otherwise provided in the Agreement, all Fees paid under this Agreement are nonrefundable.
If Customer believes that Amplitude has billed Customer incorrectly, Customer must contact Amplitude no later than fifteen (15) days after receipt of invoice in order to receive an adjustment or credit. Inquiries should be directed to Amplitude’s accounting department, email@example.com. Amplitude shall respond to Customer within three (3) business days after receiving such inquires.
Payment for all invoices is due within thirty (30) days of receipt of the invoice, or the Service may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes, duties and other governmental charges associated with the Software or Service other than U.S. taxes based on Amplitude’s net income.
Subject to earlier termination as provided below, the initial subscription term is as specified in the applicable Order Form (the “Initial Subscription Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Subscription Term, unless either party requests termination at least thirty (30) days prior to the end of the then current Term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) calendar days written notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within thirty (30) calendar days of notice. If this Agreement is terminated as a result of a material breach by Customer, then Customer shall pay in full all remaining Fees payable through the remainder of the Term or if Customer has prepaid any Fees, then those Fees are nonrefundable. If this Agreement is terminated by Customer due to a material breach by Amplitude, then Amplitude shall refund Customer on a pro-rata basis any prepaid Fees covering the remainder of the Term after the effective date of termination.
Termination (which includes expiration or non-renewal) of the Order Form and this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.
Upon the termination of this Agreement or the Service, Customer’s right to access or use the Software and Service shall terminate. Amplitude shall make available to Customer, Customer Data stored within the Service at the expiration or termination of this Agreement. However, thirty (30) days after the termination of this Agreement, Amplitude shall have no further obligation to Customer with respect to the storage of Customer Data and may, in its sole discretion, permanently delete Customer Data.
The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 5 (“Termination”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination of the Agreement.
Amplitude agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against any and all suits, claims, losses, costs, damages, liabilities, expenses (including reasonable attorneys’ fees and costs) or proceedings brought against Customer by a third-party alleging that the use of the Service in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Amplitude in writing of any such suit, claim or proceeding, (ii) allows Amplitude, at Amplitude’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Amplitude all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Amplitude’s written consent. The foregoing obligations do not apply with respect to the Service or portions or components thereof (x) not supplied by Amplitude, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials of Customer’s business where the alleged infringement would not have occurred without such combination. This section states Amplitude’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Amplitude against any and all suits, claims, costs, damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any third-party demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.2, 2.5, 3 or otherwise from Customer’s use of the Service excluded from Amplitude’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.
Each party’s indemnification obligations are conditioned upon the indemnified party: (a) promptly notifying the indemnifying party of any claim in writing; and (b) cooperating with the indemnifying party in the defense of any claim. The indemnified party shall have the right to participate in the defense of any third party claim with counsel selected by it subject to the indemnifying party’s right to control the defense thereof. The fees and disbursements of such counsel shall be at the expense of the indemnified party. Notwithstanding any other provision of this Agreement, the indemnifying party shall not enter into settlement of any third party claim without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
7. WARRANTY AND DISCLAIMER
Each party represents and warrants to the other that: (a) it is duly organized and a validly existing corporation, in good standing under the laws of the jurisdiction in which it was formed, and that it has the right and capacity to enter into this Agreement; (b) it has full power and authority to grant the rights granted by it under this Agreement and that there are no outstanding obligations or agreements that conflict with this Agreement; and (c) this Agreement, when signed by its duly authorized representative, constitutes a valid and legally binding obligation on that party that is enforceable in accordance with the terms of this Agreement.
Amplitude represents and warrants to Customer that the Software and the Service do not infringe or misappropriate any U.S. patents, copyright, trade secret or any other proprietary right of any third party.
Amplitude does not warrant that the Service will be uninterrupted or error free OR MEET CUSTOMER’S REQUIREMENTS; nor does it make any warranty as to the results that may be obtained from use of the Service. THE SERVICE IS PROVIDED “AS IS” AND AMPLITUDE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND ACCURACY. AMPLITUDE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. AMPLITUDE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT AMPLITUDE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AMPLITUDE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. AMPLITUDE EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF CUSTOMER’S USE OF THE SERVICE. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT (INCLUDING THE ORDER FORM) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO AMPLITUDE FOR THE APPLICABLE SERVICES UNDER THE AGREEMENT OR RELATING TO ANY SUBJECT MATTER THEREOF IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE (S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF AMPLITUDE, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY AMPLITUDE, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. If applicable law limits the application of the provisions of this section 8, a party’s liability will be limited to the maximum extent permissible.
The Parties agree that the limitations and exclusions set out in this Section 8 are reasonable, having regard to all the relevant circumstances and the levels of risk associated with each party’s obligations under this Agreement.
If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The Agreement is not assignable, transferable or sublicensable by Customer except with Amplitude’s prior written consent but may be assigned by Amplitude without restriction; provided, however, that Customer may assign the Order Form and this Agreement without such consent to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. Non-permitted assignments are void. This Agreement is binding upon, and inures to the benefit of, the parties and their respective successors and assigns. Both parties agree that the applicable Order Form and this Agreement, including all exhibits, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Amplitude in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may be executed in one or more counterparts. In the event that any part or provision of this Agreement is declared fully or partially invalid, unlawful or unenforceable by a court of competent jurisdiction, the remainder of the part or provision and the Agreement will remain in full force and effect, if the essential terms and conditions of this Agreement for each party remain valid, binding and enforceable. The parties agree that any material breach of Section 2 or 3 of this Agreement will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in additional to any other relief to which the owner of such Confidential Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. Customer must not access or use the Service in violation of any U.S. export embargo, prohibition or restriction. In addition, Customer must comply with all applicable laws and regulations governing the export, re-export and transfer of the Service and Customer is responsible for obtaining any required export or import authorizations. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Order Form and this Agreement.