Amplitude Terms of Service, Dec. 2018
Effective Date: December 21, 2018
Thank you for using the Service (as defined below) provided by Amplitude. To be eligible to register for an Amplitude account and use the Service, you must review and accept the terms of this Terms of Service Agreement (this "Agreement" or these "Terms") by signing up for an Amplitude account through the mechanism provided. PLEASE REVIEW THESE TERMS CAREFULLY. BY ACCEPTING THESE TERMS OR USING THE SERVICE, YOU AGREE TO THESE TERMS AND CONDITIONS WITH AMPLITUDE, INC. ("AMPLITUDE"). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE "I ACCEPT" BUTTON AND YOU SHOULD NOT USE THE SERVICE.
In this Agreement, "you," "your" and "Customer" will refer to you. If you are registering for an Amplitude account or using the Service on behalf of an entity or other organization, you are agreeing to these Terms for that entity or organization and representing to Amplitude that you have the authority to bind that entity or organization to these Terms (and, in which case, the terms "you", "your" and "Customer" will refer to that entity or organization).
- IF YOU ARE USING THE SERVICE PURSUANT TO A FREE TRIAL, AMPLITUDE DOES NOT PROVIDE ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES FOR THE SERVICE.
- DISPUTES RELATING TO THIS AGREEMENT, YOUR ACCOUNT OR THE SERVICE MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.
1. Certain Definitions
The following terms, when used in this Agreement will have the following meanings:
"Confidential Information" means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to 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.
"Customer Affiliate" means 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.
"Customer Data" means the data, content and other material supplied or made available by you (including that of your end users) through the use of or access to the Service.
"Order Form" means an order form or other similar document (including any online form) specifying the Service to be provided hereunder and fees to be paid by Customer therefor. If there is a conflict between this Agreement and the Order Form, then the Order Form shall govern.
"Service" means the online analytics service provided by Amplitude to you (including any corresponding SDKs, APIs, documentation or software that may be made available by Amplitude to you in connection with such service ("Software")), as more fully described on the Order Form, and subsequent enhancements, updates and bug fixes to the foregoing made generally available by Amplitude for no additional fee ("Updates").
"Subscription Term" means, with respect to the applicable Service, collectively, the initial subscription term set forth in the applicable Order Form and each renewal term, if applicable.
These Terms. Amplitude may revise these Terms from time to time. If Amplitude does revise these Terms, the revised Terms will supersede prior versions. Unless Amplitude says otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. Amplitude will use reasonable efforts to provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Amplitude has on file. For other revisions, Amplitude will update the effective date of these Terms at the top of the page. Amplitude encourages you to check the effective date of these Terms whenever you visit Amplitude’s website or account portal. Your continued access or use of the Service constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Service and Amplitude is not obligated to provide you with the Service. If you have a subscription to any Service, any change to these Terms will be effective with respect to such Service upon the renewal of your subscription.
Service. You acknowledge that Amplitude may change or deprecate features of the Service (including Amplitude SDKs and/or APIs) from time to time. Although Amplitude endeavors to avoid changes to the Service that are not backwards compatible, if any such changes become necessary Amplitude will endeavor to notify you at least thirty (30) days prior to Amplitude’s implementation of any such incompatible changes to the Service of which it becomes aware.
Provision of Service. Subject to the conditions set forth in this Agreement and the applicable Order Form (including the usage restrictions therein), Amplitude will use reasonable commercial efforts to provide Customer the Service pursuant to the applicable Order Form(s), and Amplitude hereby grants to Customer, for the Subscription Term, a non-exclusive, non-sublicensable, non-transferable, non-assignable, right to access and use the Service, and use the Software, in each case for Customer’s internal business purposes only.
Affiliates. The rights granted under this Agreement apply on an Order Form-by-Order Form basis only to the Customer entity that enters into such Order Form. Customer may not extend its rights to its Customer Affiliates under any Order Form. However, 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. With respect to each such Order Form, such Customer Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Customer Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and the rights granted in connection with such Order Form are solely for the benefit of such Customer entity that enters into such Order Form, and no other Customer entity has any liability, obligation or rights under such Order Form.
Support. During the applicable Subscription Term, Amplitude will make available to Customer as part of the Service 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 Service.
Free Trial. If Customer registers for a free trial to the Service, Amplitude will make the Service available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the Service, or (b) the start date of any purchased subscription for the Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Each party may terminate any free trial at any time without notice to the other party. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, FOR PURPOSES OF THE FREE TRIAL, THE SERVICE IS PROVIDED "AS-IS" WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES.
Feedback. Customer may from time to time provide Amplitude suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Service. Amplitude will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Amplitude will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Proprietary Rights. 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, including all System Data. "System Data" means anonymized and aggregated user and other data collected by Amplitude regarding the Services that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the Services (e.g., aggregate response rate).
4. Account Registration; Customer Responsibilities and Restrictions
Account Registration. 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 applicable 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. When registering an Account, you must provide true, accurate, current and complete information about yourself as requested during the Account creation process. You must also keep that information true, accurate, current and complete after you create your Account.
- (a) 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; 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 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); collect, process, store or transmit any Customer Data in violation of any applicable laws or regulations or privacy policies, agreements or other obligations Customer may maintain or enter into with its end users; collect, transmit or provide to Amplitude hereunder any financial or medical information of any nature, or any other personal data (such as names, phone numbers, email addresses, mailing addresses, social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport, government-issued ID or visa numbers and credit card numbers); attempt to probe, scan or test the vulnerability of the Service, breach the security or authentication measures of the Service without proper authorization or willfully render any part of the Service unusable; use or access the Services to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking; or remove any proprietary notices or labels (all of the foregoing, collectively, the "License Restrictions").
4.3Customer Responsibility; Customer Data.
- (b) 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 also maintains all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Customer’s purposes.
- (c) All Customer Data is, or shall be, and shall remain the property of Customer. 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, but do not include any dashboards for displaying results, report templates or other components of the Service used by Amplitude.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this 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 this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. 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 this Agreement.
Payment. Customer will pay Amplitude the Fees for the Service as listed on the applicable Order Form. The fees for each renewal term shall automatically be updated to Amplitude’s standard schedule of fees (as it may be updated from time to time), except as set forth in the applicable Order Form or otherwise mutually agreed upon by the parties in writing. 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 payment obligations are non-cancelable and fees paid under this Agreement are nonrefundable.
Disputes. 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 Terms; Late Payment; Taxes. 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. 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.
Suspension. If your use of the Service exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Amplitude may suspend your account without prior notice to you. Amplitude will have no liability in connection with any suspension of your account pursuant to this section.
7. Term and Termination
Subscription Term. Subject to earlier termination as provided below, the initial Subscription Term is as specified in the applicable Order Form and shall be automatically renewed for additional successive twelve (12)-month renewal terms, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then current Subscription Term.
- (a) In addition to any other remedies it may have, either party may terminate this Agreement upon written notice if (a) 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 or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. If Customer obtains a monthly subscription to the Service as a scholarship customer, either party may terminate such subscription upon written notice to the other party, effective at the end of the monthly subscription.
- (b)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 Subscription Term of each outstanding Order Form 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 Subscription Term of each outstanding Order Form after the effective date of termination.
7.3Consequences. Upon expiration or termination of this 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 and termination and the general provisions below. Amplitude shall make available to Customer any Customer Data stored within the Service thirty (30) days after the expiration or termination, 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.
Amplitude. Amplitude will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes any United States patent, trademark or copyright and will indemnify Customer for any damages finally awarded against (or any settlement approved by Amplitude) Customer in connection with any such Claim. 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, or (z) combined with other products, processes or materials of Customer’s business where the alleged infringement would not have occurred without such combination (collectively, the "Excluded Claims"). If the use of the Service 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 (i) procure for Customer the right to continue using and receiving the Service as set forth hereunder; (ii) replace or modify the Service to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement or the applicable Order Form and refund Customer on a pro-rata basis any prepaid fees covering the remainder of the Subscription Term of the applicable Order Form(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.
Customer. Customer will defend Amplitude against any Claim made or brought against Amplitude by a third party arising out of the Excluded Claims or any breach of the License Restrictions, and Customer will indemnify Amplitude for any damages finally awarded against (or any approved settlement) Amplitude in connection with any such Claim.
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 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
9. Warranties and Disclaimers
Warranties. Each party represents and warrants 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 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.
DISCLAIMER. 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.
10. 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) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO AMPLITUDE FOR THE APPLICABLE SERVICE UNDER THIS 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. If applicable law limits the application of the provisions of this Section, 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 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 (including, with respect to the subject matter hereof, any non-disclosure or confidentiality agreement previously entered into between the parties), 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 each party does not have any authority of any kind to bind or attempt to bind the other party 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. 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., 631 Howard Street, Floor 5, San Francisco, CA 94105, Attn: Legal. 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 enforceability and interpretation of the arbitration provisions below will be determined by the Federal Arbitration Act (including its procedural provisions); apart from such provisions, this Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Subject to the arbitration provisions below, 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. Amplitude provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement, and the use thereof is restricted by the terms of this Agreement. For purposes hereof, "including" means "including without limitation".
12. Agreement to Arbitrate
First Try Customer Support. If you have any issues with the Service or Amplitude, you must try to resolve the issue first through Amplitude customer support
Agreement to Arbitrate. If the parties are not able to the dispute through Amplitude customer support, Customer and Amplitude agree to resolve any dispute arising under these Terms or in relation to the Service by binding arbitration in San Francisco, California, or in another location that both parties agree to. This applies to all claims under any legal theory, unless the claim fits in one the exceptions below. It also applies even after you have stopped using your Amplitude account or have deleted it. If the parties have a dispute about whether this agreement to arbitrate can be enforced or applies to such dispute, the parties agree that the arbitrator will decide that too.
Exceptions to Agreement to Arbitrate. You and Amplitude agree that the parties will go to court to resolve disputes relating to (a) your or Amplitude’s intellectual property or (b) your violation of the License Restrictions. Also, either party can bring a claim in small claims court either in San Francisco, California, or the county where you live, or some other place both parties agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or either party refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
Details of Arbitration Procedure.
- (a) Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association ("AAA"), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website https://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this agreement to arbitrate conflicts with the Rules, the language of this agreement to arbitrate applies.
- (b) Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This agreement to arbitrate does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
- (c) The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of California and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
- (d) Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
12.5Class Action Waiver. Both you and Amplitude agree that any claims or controversies between the parties must be brought against each other on an individual basis only. That means neither you nor Amplitude can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless both parties agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Amplitude customers, and cannot be used to decide other disputes with other customers. If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of the Terms will still apply.