Amplitude, Inc. Master Service Agreement
ARCHIVED VERSION: November 1, 2021
1. Amplitude Responsibilities
1.1 – Provision of Amplitude Services
Subject to the terms set forth in this Master Service Agreement ("MSA") and the applicable Order Form (defined below), Amplitude will provide Customer the Services (defined below) for the fees listed on the applicable Order Form ("Fees"). "Amplitude Services" means the software-as-a-service product(s) specified in the applicable Order Form, but for clarity excludes Third-Party Products. "Third-Party Products" mean a non-Amplitude product or Web-based, mobile, offline or other software application or service that Customer chooses to integrate with or use in connection with the Amplitude Services. "Order Form" means an order form or other similar document specifying the Services to be provided hereunder and the Fees to be paid by Customer. "Agreement" means, collectively, the MSA, DPA (defined below), Order Forms, SOWs (defined below) and amendments to any of the foregoing. "Services" mean, collectively, the Amplitude Services and Professional Services (defined below).
1.2 – Customer Affiliates
The rights granted under this MSA apply only to the Customer entity that enters into the applicable Order Form or SOW. Customer may not extend its rights to any Customer Affiliate (defined below) under any Order Form or SOW. However, Customer Affiliates shall be entitled to enter into one or more Order Forms or SOWs with Amplitude pursuant to this MSA and, in such circumstances, all references in this MSA to Customer shall be deemed to be applicable to the Customer Affiliate with respect to that particular Order Form or SOW, unless otherwise set forth in writing. With respect to each such Order Form or SOW, such Customer Affiliate becomes a party to this MSA and references to Customer in this MSA are deemed to be references to such Customer Affiliate. Each Order Form or SOW is a separate obligation of the Customer entity that enters into such Order Form or SOW, and the rights granted in connection with such Order Form or SOW are solely for the benefit of such Customer entity that enters into such Order Form or SOW, and no other Customer entity has any liability, obligation or rights under such Order Form or SOW. "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.
1.3 – Support
During the term of the applicable Order Form, Amplitude will make available to Customer as part of the Amplitude Services, all updates and provide Customer with product support, as follows: 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 Amplitude Services.
1.4 – Data Privacy and Protection of Customer Data
The Amplitude Data Processing Addendum ("DPA") (located at the following URL: http://www.amplitude.com/dpa) is incorporated by reference into this MSA. The parties agree that the provisions contained in the DPA govern the processing of personal data in connection with this MSA. As set forth in the DPA, Amplitude will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data (defined below), including measures designed to prevent unauthorized access to or use or disclosure of Customer Data. "Customer Data" means data and other content submitted by or for Customer to the Amplitude Services, including Customer’s end user data. For the avoidance of doubt, Customer Data does not include System Data (defined below) or any dashboards, report templates or any other technology or components of the Amplitude Services created, developed, used or provided by Amplitude.
1.5 – Professional Services
From time to time, the parties may enter into a Statement of Work ("SOW") that describes the consulting and/or training services to be performed by Amplitude (the "Professional Services"). Each SOW will be subject to the terms of this MSA. Amplitude will perform the Professional Services specified in the SOW in a professional and workmanlike manner in accordance with the SOW and this MSA. No changes to a SOW will be effective without the written agreement of each party. If Customer purchases Professional Services, Amplitude may share documentation and training materials (collectively, the "Amplitude Professional Services Materials") with Customer. If Amplitude Professional Services Materials are provided to Customer in connection with the Professional Services, Amplitude grants Customer, during the term of the applicable SOW, a non-exclusive, non-transferable, non-sublicensable right and license to use the Amplitude Professional Services Materials internally in connection with the Professional Services and to support Customer’s permitted use of the Amplitude Services. Notwithstanding anything to the contrary in the Agreement, Amplitude Professional Services Materials are the sole and exclusive property of Amplitude.
1.6 – Beta Services
From time to time, Amplitude may provide Customer with access to "alpha," "beta" or other "early-stage" Amplitude services, products, integrations, functionality or features (collectively, "Beta Services"), which are optional for Customer to use. The Beta Services are not generally available and may contain bugs, errors, defects or harmful components. Amplitude does not provide any indemnities, security commitments, service level commitments or warranties, express or implied, including warranties of merchantability, title, non-infringement, and fitness for a particular purpose, in relation to the Beta Services. Amplitude shall have no liability for any harm or damage arising out of or in connection with the Beta Services. Beta Services may be subject to additional terms which may supplement, but not supersede the terms in the MSA. Customer or Amplitude may terminate Customer’s access to Beta Services at any time. The Beta Services, including without limitation Customer’s assessment or Feedback (defined below) of any Beta Services, are the Confidential Information of Amplitude.
2. Proprietary Rights
2.1 – Access to Amplitude Services
Subject to the terms of the Agreement, Amplitude hereby grants to Customer, for the term set forth in the applicable Order Form or SOW, a non-exclusive, non-sublicensable, non-transferable, non-assignable right to access and use the Amplitude Services for Customer’s internal business purposes only.
2.2 – Reservation of Rights
Amplitude retains all right, title, and interest (including, but not limited, to intellectual property rights) in and to the Amplitude Professional Services Materials, Beta Services, and Amplitude Services, and all improvements, enhancements or modifications to the foregoing, and anything developed and delivered under the Agreement, including System Data. "System Data" means data and information collected, derived, or otherwise generated by the Amplitude Services that has been anonymized, de-identified, and/or aggregated so as not to identify or permit identification of an individual. For the avoidance of doubt, Amplitude may use, modify, and display System Data, provided, however, Amplitude will not publicly disclose or distribute System Data unless it is aggregated in a manner that does not permit the identification of Customer. No rights are granted to Customer hereunder except as expressly set forth in the Agreement.
2.3 – Customer Data License
Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants Amplitude a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to host, copy, use, transfer and process the Customer Data as necessary in order for Amplitude to provide the Services and to support Customer under the terms of the Agreement.
2.4 – Feedback
Customer may from time to time provide Amplitude suggestions or comments for enhancements or improvements, new features or functionality or other feedback (collectively, "Feedback") with respect to the Services and/or Beta Services. Amplitude will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Customer hereby grants Amplitude an unlimited, irrevocable, perpetual, sublicensable, royalty-free license, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback without restriction.
3. Customer Restrictions And Responsibilities
3.1 – Administration of Customer’s Account
As part of the registration process, Customer will identify an administrative username and password ("Administrator Credentials"). Customer may use the Administrative Credentials to create standard Users (each with their own separate usernames and passwords) ("User(s)"), in accordance with the provisions of the applicable Order Form or SOW. Customer is responsible for maintaining the security of the Administrator Credentials and the usernames and passwords for all of its Users. Customer may permit its Users to use the Amplitude Services, provided their use is for Customer’s benefit only and they remain in compliance with the Agreement. Customer shall be responsible for all acts or omissions taken under the Administrator Credentials and those taken under the usernames and passwords of all Users. "User" means an individual Customer invites to use the Amplitude Services pursuant to the Agreement, including employees, contractors, agents and consultants of Customer.
3.2 – License Restrictions
Customer will not (and will not allow any User or third party to) directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Amplitude Services (or any underlying software, documentation or data related to the Amplitude Services); (b) modify, translate, or create derivative works based on the Amplitude Services or any underlying software; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Amplitude Services or any underlying software; (d) use the Amplitude Services or any underlying software for the benefit of a third party, in violation of any applicable laws or regulations or outside the scope expressly permitted hereunder (including in violation of the usage restrictions set forth in the applicable Order Form or SOW); (e) collect, process, store or transmit any Customer Data in violation of any applicable laws, regulations, privacy policies, agreements, or other obligations Customer may maintain or enter into with its end users; (f) collect, transmit or provide to the Amplitude Services hereunder financial information of any nature; medical information of any nature, including without limitation biometric or genetic data; social security numbers; driver’s license numbers; birth dates; passwords; personal bank account numbers; passport, government-issued ID or visa numbers; and credit card numbers or any other sensitive personal data; (g) attempt to probe, scan or test the vulnerability of the Amplitude Services, breach the security or authentication measures of the Amplitude Services without proper authorization or willfully render any part of the Amplitude Services unusable; (h) use or access the Amplitude Services to develop a product or service that is competitive with the Amplitude Services or engage in competitive analysis or benchmarking; (i) incorporate the Amplitude Services into a product or service Customer provides to a third party or publicly disseminate information regarding the performance of the Amplitude Services; (j) remove any proprietary notices or labels; or (k) store or transmit malicious code through the Amplitude Services (all of the foregoing, collectively, the "License Restrictions").
3.3 – Customer Responsibilities
Customer shall be responsible for: (a) its Users’ compliance with the Agreement; (b) compliance with any and all applicable third-party terms of service, privacy policies and similar documents for platforms, networks and/or websites that Customer uses in connection with the Amplitude Services; (c) the legality, accuracy and quality of Customer Data, including ensuring that Customer’s use of the Amplitude Services to collect, process, store and transmit 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 such as all legally required consents and permissions; and (d) use commercially reasonable efforts to prevent the unauthorized access to or use of the Amplitude Services. In addition, in the event Amplitude is legally or contractually required to change or modify the Amplitude Services in order to ensure the Amplitude Services comply with the terms of service or privacy policies of various platforms, networks and/or websites, then Customer shall be responsible for making all necessary changes to Customer’s applications and websites in order to continue using the Amplitude Services. Customer also maintains all responsibility for determining whether the Amplitude Services or the information generated thereby is accurate or sufficient for Customer’s purposes.
3.4 – Third Party Products
4.1 – Definition of Confidential Information
"Confidential Information" means any information or data in any form or medium (whether oral, written, electronic, or otherwise) disclosed by either party that is marked or otherwise designated as confidential or proprietary at the time of disclosure or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding its disclosure. However, Confidential Information will not include any information which (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
4.2 – Protection of Confidential Information
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the terms of the Agreement and it will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of the Agreement; and (b) as required by law (in which case the receiving party will, to the extent legally permitted, notify the disclosing party within a reasonable time prior to such access or disclosure so as to provide the disclosing party with the opportunity to contest such disclosure or otherwise seek appropriate protective measures, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). If the receiving party is compelled by law to access or disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, the disclosing party will reimburse the receiving party for the reasonable costs of compiling and providing secure access to such Confidential Information. Neither party will disclose the terms of the Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein. Each party agrees to safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the Agreement.
5. Payment Of Fees
5.1 – Fees
Customer will pay Amplitude the Fees for the Services as listed on the applicable Order Form and/or SOW. The Fees for each renewal term shall be the then-current Fees for the Services in effect at the time of the renewal; unless the applicable Order Form and/or SOW provides otherwise. Customer agrees to pay all Fees in US dollars, unless the applicable Order Form and/or SOW provides otherwise. All payment obligations are non-cancelable and, unless otherwise provided in the Agreement, all Fees paid under the Agreement are non-refundable.
5.2 – Invoicing and Payment
Unless otherwise set forth in the applicable Order Form and/or SOW, payment for all invoices is due within thirty (30) days of receipt of the invoice, or the Services may be suspended or terminated. Unpaid invoices that are not in dispute 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. In addition, if Customer fails to remit payment of a non-disputed invoice by the due date set forth in the applicable Order Form or SOW, all outstanding Fees due under such Order Form and/or SOW will become due and payable immediately without further action or notice.
5.3 – Payment Disputes
If Customer believes that Amplitude has billed Customer incorrectly, Customer must contact Amplitude no later than fifteen (15) days after receipt of the invoice. All inquiries should be directed to Amplitude’s accounting department at email@example.com. Amplitude shall respond to Customer promptly after receiving such inquiries.
5.4 – Taxes
Customer shall be responsible for all taxes, duties and other governmental charges associated with the Services other than taxes based on Amplitude’s net income. If Customer is required by law to withhold any taxes, Customer must provide Amplitude with an official tax receipt or other appropriate documentation, and all Fees are payable hereunder without any deduction for such withheld taxes or otherwise. If Amplitude has the legal obligation to pay or collect taxes for which Customer is responsible under the terms of the Agreement, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Amplitude with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 – Purchase Order
If the Customer requires the use of a purchase order, the Customer is responsible for providing the applicable purchase order at the time of purchase. The Customer acknowledges and agrees to the extent of any inconsistency between the Agreement and any terms and conditions attached to the Customer’s purchase order, the terms of the Agreement will prevail. The parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to the Agreement.
6.1 – Term and Auto-Renewal
The term of this MSA will commence on the effective date of the initial Order Form and continue until terminated as set forth below. Subject to earlier termination as provided below, the initial subscription term of the applicable Order Form is as specified in such Order Form, and shall be automatically renewed for successive terms of twelve (12) months at the end of the initial subscription term and, as applicable, at the end of each then current term, unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
6.2 – Termination
In addition to any other remedies it may have, either party may also terminate the Agreement upon written notice if (a) the other party breaches a material term or condition of the Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within thirty (30) calendar days of notice; or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all of its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. If the 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 each outstanding Order Form or SOW; or if Customer has prepaid any Fees, then those Fees are nonrefundable. If the 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 each outstanding Order Form or SOW after the effective date of termination.
6.3 – Survival
Upon expiration or termination of the Agreement, all rights and obligations will immediately terminate except that any accrued payment obligations and other terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below.
6.4 – Return and Destruction of Customer Data
Amplitude shall make available to Customer any Customer Data stored within the Amplitude Services for thirty (30) days after the expiration or termination ("Data Retrievability Period"), after which 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. During the Data Retrievability Period, any and all Customer Data-related provisions of the Agreement will remain in full force and effect.
7. Mutual Indemnification
7.1 – Indemnification by Amplitude
Amplitude will defend and hold Customer harmless against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Amplitude Services, as permitted hereunder, infringes any United States patent, trademark or copyright and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved in writing by Amplitude) in connection with any such Claim. The foregoing obligations do not apply to the extent that the alleged Claim arises from (a) Customer Data, Third-Party Products, or any other portions or components of the Amplitude Services not supplied by Amplitude; (b) any modification, combination, or development of the Amplitude Services or portions or components thereof that is (i) made in whole or in part in accordance with Customer specifications; or (ii) not performed by Amplitude; (c) Customer’s negligence, misconduct, or breach of the Agreement; or (d) the use of any version of the Amplitude Services other than the most current release made available by Amplitude (collectively, the "Excluded Claims"). If the use of the Amplitude Services by Customer has become, or in Amplitude’s opinion is likely to become, the subject of any claim of infringement, Amplitude may at its option and expense (A) procure for Customer the right to continue using and receiving the Amplitude Services as set forth hereunder; (B) replace or modify the Amplitude Services to make it non-infringing (with comparable functionality); or (C) if the options in clauses (A) or (B) are not reasonably practicable, terminate the Agreement and refund Customer on a pro-rata basis any prepaid Fees covering the remainder of the term of the applicable Order Form(s) or SOW(s) after the effective date of termination. This Section states Amplitude’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
7.2 – Indemnification by Customer
Customer will defend and hold Amplitude harmless against any Claim made or brought against Amplitude by a third party arising out of (a) the Excluded Claims; (b) any breach of the License Restrictions; or (c) allegations that Customer Data or Amplitude’s processing of data pursuant to Customer’s instructions infringes applicable law, including a third party’s privacy right, and Customer will indemnify Amplitude for any damages finally awarded against Amplitude (or any settlement approved in writing by Customer) in connection with any such Claim.
7.3 – Indemnification Procedure
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 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 the Agreement, the indemnifying party shall not enter into settlement of any Claim that requires the indemnified party to admit fault or pay amounts that the indemnifying party must pay under this Section, without the prior written consent of the indemnified party, which shall not be unreasonably withheld or delayed.
8. Warranty And Disclaimer
8.1 – Mutual Representations
Each party represents to the other that (a) it is duly organized and a validly existing entity, 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 the Agreement; (b) it has full power and authority to grant the rights granted by it under the Agreement and that there are no outstanding obligations or agreements that conflict with the Agreement; and (c) the 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 the Agreement.
8.2 – Amplitude Warranties
Amplitude warrants that (a) it will use commercially reasonable efforts to prevent the introduction of viruses, Trojan horses or similar harmful materials into the Amplitude Services (but Amplitude is not responsible for harmful materials submitted by Customer or its Users); and (b) the Amplitude Services will perform materially in accordance with the applicable documentation (collectively, the "Performance Warranty"). In the event of a breach of the Performance Warranty, Amplitude will use commercially reasonable efforts to correct any non-conformity. In the event Amplitude determines corrections to be impracticable, Amplitude or Customer may terminate the Agreement. In the event the Agreement is terminated as provided herein, Amplitude will refund to Customer any prepaid Fees for use of the Amplitude Services for the terminated portion of the applicable subscription term. The Performance Warranty will not apply (i) unless Customer makes a claim within thirty (30) days of the date on which Customer noticed the non-conformity, (ii) if the non-conformity is caused by Customer misuse, unauthorized modifications, Third-Party Products, or other services, software or equipment, or (iii) Beta Services. Amplitude’s sole liability and Customer’s sole exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 8.2.
8.3 – Customer Warranties
Customer warrants that (a) Customer’s use of the Amplitude Services or execution of the Agreement does not and will not conflict with Customer’s obligations to any third parties; and (b) Customer has obtained all legally required consents and permissions from its end users for the submission and processing of personal data through the Amplitude Services.
8.4 – Disclaimers
AMPLITUDE DOES NOT WARRANT THAT THE SERVICES 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 SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE 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 SERVICES OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES 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 SERVICES 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 IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
9. Limitation Of Liability
9.1 – Limitation of Liability
9.1.1 – Consequential Damages Waiver
EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, REPUTATIONAL HARM, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE.
9.1.2 – Damages Cap
EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS AND A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 (MUTUAL INDEMNIFICATION), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO AMPLITUDE FOR THE APPLICABLE SERVICES IN THE TWELVE (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. THE ABOVE LIMITS OF LIABILITY ARE EXCLUSIVE AS TO ALL REMEDIES AND THE LIABILITY CAP SHALL NOT BE COMBINED WITH ANY OTHER LIMITS OF LIABILITY SO AS TO INCREASE THE CAP VALUE IN ANY INSTANCE OR SERIES OF INSTANCES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, A PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
9.2 – Basis of the Bargain
The parties agree that the limitations and exclusions set out in this Section 9 will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose. The terms in this Section 9 are a fundamental basis of the bargain and reasonable, having regard to all the relevant circumstances and the levels of risk associated with each party’s obligations under the Agreement.
10. General Provisions
10.1 – Entire Agreement; Conflicts
Both parties agree that the Agreement, including all exhibits, is the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement (including, with respect to the subject matter hereof, any non-disclosure or confidentiality agreement previously entered into between the parties and any online terms of service or click-through agreements within the Amplitude Services). If there is a conflict between this MSA and any Order Form or SOW, then the Order Form or SOW shall govern.
10.2 – Severability
In the event that any part or provision of the 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 the Agreement for each party remain valid, binding and enforceable.
10.3 – Assignment
Neither party may assign the Agreement without the other party’s prior written consent, except that a party may assign the Agreement upon written notice without such consent to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of the assigning party’s voting securities or assets. Non-permitted assignments are void. The Agreement is binding upon, and inures to the benefit of, the parties and their respective successors and assigns.
10.4 – Independent Contractors
The parties to the Agreement are independent contractors and the Agreement does not create an agency, partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.5 – Notices
Any notice under the Agreement must be given in writing. Amplitude may provide notice to Customer through the Customer account or in-product notifications. Customer agrees that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. All notices under the Agreement will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt. Notices to Customer must be sent to the email or other address as set forth in Customer’s Account information. Notices to Amplitude must be sent to the following address: Amplitude, Inc., 201 Third Street, Suite 200, San Francisco, CA 94103, Attn: Legal or firstname.lastname@example.org.
10.6 – Governing Law and Venue
The 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 the 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. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the Agreement.
10.7 – Export Restrictions
Customer must not access or use the Amplitude Services 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 Amplitude Services and Customer is responsible for obtaining any required export or import authorizations.
10.8 – Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
10.9 – U.S. Foreign Corrupt Practices Act and U.K. Bribery Act
Amplitude and Customer each represent and warrant to the other (a) that it is aware of all anti-corruption legislation that applies to the Agreement and in particular the US Foreign Corrupt Practices Act 1977 and the U.K. Bribery Act 2010; (b) it has implemented rules and procedures that enable it to comply with this legislation and adapt to any future amendments thereto; (c) it has implemented appropriate rules, systems, procedures and controls for preventing the commission of corrupt acts, either by itself or its staff, and for ensuring that any evidence or suspicion of the commission of a corrupt act will be thoroughly investigated, and unless prohibited by confidentiality or applicable law, reported to the other party; (d) its records relating to its business, including accounting documents, are maintained and kept to ensure their accuracy and integrity; and (e) it has not made, offered, received, or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with the Agreement (reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction).
10.10 – Change of Terms
Amplitude may modify the terms and conditions of this MSA from time to time, with notice to you in accordance with Section 10.5 (Notices) or by posting the modified terms on the Amplitude website. Unless otherwise specified by Amplitude, changes become effective for Customer upon renewal of the then-current Order Form or entry into a new Order Form after the updated version of this MSA goes into effect. Customer’s continued use of the Services after the updated version of this MSA goes into effect will constitute Customer’s acceptance of such updated version of this MSA.