1. General

These General Terms govern and apply to the entire contractual relationship between the Customer and Ampliphi and are incorporated in the Agreement between the Customer and Ampliphi, by reference in the Order Form, and/or on www.ampliphi.io and/or by reference in the Services. These General Terms will in all respects replace and supersede any previously agreed general terms and conditions between the Customer and Ampliphi with effect also for any previously agreed Order Forms and for any otherwise previously ordered products or services. Any such previously agreed Order Forms or other products or services will thus in all respects be governed by these General Terms.

2. Definitions

“Agreement” means the agreement between the Customer and Ampliphi regarding the Services on the terms and conditions set out in an Order Form and including the terms and conditions of these General Terms.

“Ampliphi” means the legal entity.

“Customer” means the legal entity who is using or subscribing to Services provided by Ampliphi.

“Customer Data” means all data, information or material, including but not limited to the Customer’s content uploaded to, processed using or transmitted via the Services, by the Customer, Customer’s representative, application or automated system using the Customer’s account, and statistics generated through the Customer’s use of the Services.

“Initial Period” means the initial contract period during which the Customer subscribes to the Services.

“Order Form” means the order form(s), including any supplements thereto, that the Customer has executed to confirm its subscription to the Services on the terms and conditions set out in the Order Form and in these General Terms.

“Renewal Term(s)” means successive renewal periods during which the Customer prolongs its subscriptions to the Services.

“Services” means the web based software services provided by Ampliphi, versions thereof, and associated services related thereto, including but not limited to Training, Consultancy, Customized Development, Professional Services, Support Services, provided to the Customer by Ampliphi in accordance with this Agreement and with the content and features as described on www.ampliphi.io or any local versions thereof.

“Accounting Period” is a specific time range over which business transactions have been accumulated for the Customer.

“Users” means those individuals who are authorized by the Customer, and who are the Customer’s employees, agents or contractors, to access and use the Services on behalf of the Customer.

“Data Breach” means any actual or reasonably suspected:  (1) theft, unauthorized or accidental access to, loss of, unauthorized processing of, and/or unauthorized disclosure, acquisition, use, destruction, or deletion Customer Data;  (2) unauthorized use of Customer Data by a person with authorized access to the information for purposes of actual or reasonably suspected theft, fraud or identity theft; (3) unauthorized disclosure or alteration of Customer Data; or (4) loss of Customer Data, including without limitation, any of the foregoing described in (1) – (3) caused by or resulting from a failure, lack of or inadequacy of security, physical intrusion of facilities, theft or loss of documents, laptops or storage media, or employee or contractor malfeasance

3. Services and right to use

3.1 Subject to the terms and conditions of this Agreement, the Customer is given a non-transferable, non-exclusive, non-sublicensable, limited term, world-wide right to permit Users to access and use the Services subject to the terms of this Agreement. The Services and their features are described in the Order Form and on www.ampliphi.io.

3.2 The Services will be made available to the Customer during the term of the Agreement and only after entering the Agreement. The Customer is aware that Ampliphi may at any time implement new versions and upgrades of the Services.

3.3 Ampliphi will use commercially reasonable efforts to make the Services available over the Internet 24 hours a day, 7 days a week but cannot guarantee that the Services will be uninterrupted or error free. Measures that may affect the aforementioned accessibility are inter alia scheduled maintenance, which Ampliphi will schedule to the extent practicable during the weekend or outside normal business hours (United States (EST)), unscheduled emergency maintenance and any other cause beyond Ampliphi’s reasonable control, including but not limited to the Customer’s access to the Internet.

4. Customer support

4.1 Ampliphi will, as part of the Services and at no additional cost to the Customer, provide the Customer with Ampliphi’s standard customer support service. The customer support service will be provided during normal business hours (United States (EST)) on days when commercial banks are open to the general public in United States.

5. The obligations

5.1 The Customer may only and represents and warrants that it will only, use the Services in accordance with (a) this Agreement; (b) any of Ampliphi’s use policies (as applicable and amended by Ampliphi from time to time).

5.2 The Customer is responsible for Users’ compliance with this Agreement and the Users’ use of the Services. The Customer shall furthermore always comply with Ampliphi’s security, administrative and ethic codes, policies and regulations as notified by email, as made available within the Services or in any other manner.

5.3 The Customer shall not use, or permit the use of, the Services in any way that could damage, overburden, disable, impair or otherwise hinder or interfere with Ampliphi’s provision of the Services. It is the responsibility of the Customer to ensure the security of the Customer’s passwords and equipment used to access the Services.

5.4 The Customer may not provide access to the Services to any third party except for a third party that is acting as a consultant providing services to and on behalf of the Customer. The Customer is responsible for its consultants’ acts and omissions if and when such consultant is provided access to the Services.

5.5 Amliphi warrants that (i) the Services will perform materially in accordance with the specifications set forth in the Agreement, and the Services shall not materially degrade during the term of the Agreement, and (ii) it shall use industry standard technical, physical, and organizational security measures to secure the Services and any Customer Data.

6. Upgrades and limitations in the use of the services

6.1 Services with volume restrictions stated in an Order Form (including but not limited to users) will be upgraded and charged according to Ampliphi’s then current price list when the maximum level for the current account is exceeded, upon prior notice to the Customer in advance of the volume restriction being reached. Once the upgrade is done the volume levels cannot be decreased during the relevant Agreement term stated in the Order Form. The Customer may decrease the volume levels prior to a renewal period by giving Ampliphi written notice of such decrease no later than thirty (30) days before the end of the relevant term.

6.2 The Customer shall only use the Services for the Initial Period stated in an Order Form, and for any Renewal Term(s) thereafter.

6.3 The Customer shall only use the Services with data originating from the Accounting Period.

7. Fees and payment terms

7.1 The Customer shall pay all fees specified in an Order Form or as otherwise agreed. Payment obligations are non-cancellable and fees paid are non-refundable, except as set out in section 17.3. All fees are stated exclusive of VAT.

7.2 All invoicing is done in advance. Payment shall be made to Ampliphi under the payment terms in the Order Form. Unless otherwise agreed, payment shall be made within thirty (30) days after the invoice date. In the event that payment Is not made within thirty (30) days after the invoice date, Ampliphi will provide written notice to Customer and give Customer seven (7) days to provide outstanding payment. In the event payment is not provided within the cure period, late payment is charged from the invoice due date with twenty (20) per cent of the invoice value per annum. The Customer shall promptly notify Ampliphi about change of address. Ampliphi reserves the right to immediately suspend delivery of the Services and the Customer’s access to the Services if payment is not received after the cure period expires. Any suspension by Ampliphi of the Services under the preceding sentences or otherwise in accordance with the provisions of this Agreement, shall not relieve the Customer of its payment obligations under this Agreement and Ampliphi shall not be held liable for any loss and/or damage suffered by the Customer as a result of such suspension.

7.3 The Customer shall always carry the cost for any and all booked hourly based meetings and/or sessions with Ampliphi regarding the Services, including but not limited to Training, which has not been rescheduled or cancelled with three (3) days prior notice. In the event the meeting/session has been rescheduled by Customer, the Customer shall always be liable for Ampliphi’s non-refundable costs relating to accommodation and travel expenses.

7.4 All Services, which are supplied by Ampliphi on a time basis, shall be supplied on an hourly basis only.

8. Customer Data

8.1 All Customer Data is and shall remain the property of the Customer, and Ampliphi may only use the Customer Data and statistics in accordance with this Agreement and otherwise in order to fulfil its obligations to the Customer and/or to exercise its rights under the Agreement. Notwithstanding the above, Ampliphi may use de-identified or aggregated Customer Data in accordance with section 13.

8.2 It is the sole obligation of the Customer to ensure that it possesses necessary back-up of the Customer Data that it desires to retain when the Agreement is terminated.

8.3 The Customer acknowledges and agrees that, following the effective date of this Agreement’s termination, it will not have access to the Services. Customer will have a period of thirty (30) days following the effective date of termination or expiration of this Agreement to access Customer Data stored in or as part of the Services. Ampliphi will delete and destroy Customer Data in accordance with Ampliphi’s standard procedures for deletion of data, which inter alia includes that Ampliphi will permanently delete and destroy all copies of the Customer Data within a reasonable timeframe, taking into account the back-up and administrative procedures applied by Ampliphi from time to time.

9. Intellectual property rights

9.1 Ampliphi shall hold title to any and all intellectual property rights and technical solutions in or relating to the Services. Such intellectual property rights and technical solutions may only be used by the Customer in the manner stated in this Agreement. Under no circumstances shall the Customer or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in the Services, or to any trademark or any other business mark belonging to or used by Ampliphi. Access to the Services is only granted as explicitly set out herein and the Customer thus only receives the limited right to use the Services for the duration of this Agreement and in accordance with the terms of this Agreement. Any rights not expressly granted herein are reserved by Ampliphi.

9.2 Ampliphi shall own all suggestions, requests, recommendations, improvement or enhancement requests or other input or feedback provided by the Customer or any other party relating to the Services, and the Customer hereby makes and/or undertakes to make all assignments and take all reasonable acts necessary to accomplish the foregoing assignment to and ownership by Ampliphi.

9.3 The Customer shall not, directly or indirectly, (i) modify, decompile, disassemble or reverse engineer the Services or attempt to discover the code and/or underlying structure, ideas or algorithms of the Services or any software, data or documentation related to or provided with the Services; (ii) modify, translate or create derivative works based on the Services; (iii) access or use the Services to build (or support or assist a third party in building) any product or service competing with the Services; or, (iv) in any way transfer or encumber rights to the Services. The Customer shall use the Services explicitly for its internal business operations and not for the operations of a third party, e.g. as a service bureau or timesharing service.

10. Reference

10.1 Ampliphi owns the right to disclose the fact that the Customer is a customer of Ampliphi and the Customer agrees that Ampliphi may use the Customer’s name and logo to identify the Customer as a customer of Ampliphi on www.ampliphi.io and in other promotional and marketing material.

11. Delivery refusal

11.1 In addition to what is otherwise agreed under this Agreement, Ampliphi reserves the right to immediately suspend the delivery of the Services or to immediately close all the Customer’s accounts and terminate the Agreement if the Customer uses or has declared its intent to use the Services in violation of the Agreement, any laws or regulations.

11.2 Any suspension of the Services by Ampliphi will not relieve the Customer of its payment obligations under this Agreement.

12. Confidentiality

12.1 Each party agrees that it will, during the term of the Agreement and thereafter, not use or divulge, disclose or communicate to anyone, without the express written prior authorization of the other party, any information designated proprietary, internal or confidential in nature or otherwise not generally known, including Customer Data, relating or pertaining to the other party’s business, organization or operations that a party may have acquired, directly or indirectly, during the term of the Agreement. Nothing contained herein will in any way restrict or impair either party’s right to use, disclose, or otherwise deal with any proprietary information and/or confidential information which at the time of its receipt is generally available in the public domain, or thereafter becomes available to the public through no act of the receiving party.

12.2 The provisions under this section 12 shall survive any expiration, termination or cancellation of this Agreement.

13. Statistical information

13.1 Notwithstanding anything else in the Agreement and otherwise, Ampliphi shall have the right to monitor the Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner, solely for the purpose of compiling statistical and performance information, or improve predictive capabilities related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or contain confidential information of the Customer. Ampliphi retains all intellectual property rights in such statistical information.

14. Limited warranty

14.1 Ampliphi warrants that the Services will under normal use and circumstances perform substantially and materially in accordance with how the Services are presented on www.ampliphi.io.

14.2 Except for the express warranties set forth in section 14.1 above the Services are provided on an “AS IS” basis and with all faults. To the furthest extent permitted under applicable law, Ampliphi expressly disclaims and excludes from the Agreement all other conditions, terms and/or warranties of any kind with respect to the Services, whether express or implied, including without limitation any conditions, terms and/or warranties for merchantability of the Services and/or for the fitness of the Services for a particular purpose and/or the correspondence of the Services to any description and/or that the Services will be uninterrupted and/or error free and/or completely secure. The Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of privacy, confidential information and property.

15. Limitation of liability

15.1 Ampliphi shall not be liable for loss of profits, business, contracts, revenue or anticipated savings or any other indirect or consequential costs, losses or damages. Such limitation shall however not apply to the extent that such costs, losses or damages are shown to have been caused by Ampliphi with intent or gross negligence.

15.2 In the event of major defects that seriously impede the Customer’s use of the Services and that are attributable to Ampliphi, Ampliphi undertakes to use its best endeavours to rectify such defects without unreasonable delay. In the absence of intent or gross negligence by Ampliphi, Ampliphi otherwise assumes no responsibility for defects, interruptions or deficiencies in the Services. The Customer shall not be entitled to a reduction in payment (or repayment of fees paid), or to damages or other sanctions in the event of operational disruption or errors that impede data traffic or otherwise the use of the Services, unless caused by Ampliphi with intent or gross negligence.

15.3 Ampliphi’s liability under this Agreement shall under all circumstances be limited to an amount that, together with amounts associated with all other claims from the Customer, corresponds to the lesser of the agreed fees paid by the Customer for the Services during the period of six (6) months immediately prior to the breach of contract that entitles the Customer to damages.

16. Force majeure

16.1 Each party shall be entitled to suspend performance of its obligations under the Agreement to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the reasonable control of the affected party such as fire, war, extensive military mobilization, acts of terror, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstances referred to in this section 16. A circumstance referred to above which has occurred prior to the formation of the Agreement shall give a right to suspension only if its effect on the performance of the Agreement could not be foreseen at the time of the formation of the Agreement. The party claiming to be affected by force majeure shall notify the other party in writing without delay immediately upon the commencement of the event of force majeure.

17. Term and termination

17.1 This Agreement enters into force upon acceptance by the Customer in an Order Form, agreement, or in any other form and continues for the Initial Period specified therein (and for any Renewal Term(s) thereafter as further set out below).

17.2 If not otherwise specified in the Order Form, the Agreement shall automatically renew for additional periods equal to the expiring Initial Period, unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the relevant term. Fees for the Services during any such renewal term shall be the same as that during the prior term unless Ampliphi has given the Customer a written notice of an increase of the fees at least thirty (30) days prior to the end of such prior term, in which case the fee increase shall be effective upon the start of the new Renewal Term.

17.3 Each party shall be entitled to prematurely terminate the Agreement in writing where the other party is in material breach of its obligations under the Agreement and fails to effect rectification within ten (10) days of a written demand therefore or if the other party becomes bankrupt or otherwise insolvent. Upon termination by the Customer for material breach under this section 17.3, Ampliphi shall refund the Customer any prepaid fees for the remainder of the Agreement period. Upon termination by Ampliphi for material breach under this section 17.3, the Customer shall pay all fees for the remainder of the Agreement period.

17.4 Termination shall be made in writing and shall be signed by the terminating party. The Customer’s termination shall be sent to Ampliphi’s main office or by email to hello@ampliphi.com. A non-payment is not considered to be a termination.

18. Amendments

18.1 Ampliphi reserves the right to amend these General Terms and such amended General Terms will thereafter govern and apply to the entire Agreement and in all respects replace and supersede any previously agreed general terms and conditions between the Customer and Ampliphi. The Customer shall be informed of such amendments by email and the Customer shall be deemed to have received such notice within two (2) weeks of the notice being sent by email. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the date the email was sent, provided that the changes have a material adverse effect on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions of the Agreement.

19. Assignment

19.1 Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, not to be unreasonably withheld. Notwithstanding the above, Ampliphi shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement without the Customer’s prior consent (i) to a company within the same group of companies as Ampliphi; or, (ii) in connection with a sale of all, or substantially all, of the assets of Ampliphi to a third party.

20. Disputes

20.1 This Agreement shall be governed by the laws of The United States without reference to its principles on conflict of laws.

20.2 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration administered by the Georgia Arbitration Code “GAC”. However, the parties may elect to initiate court proceedings concerning non-payment. Where the amount in dispute does not exceed USD 100,000 the GAC Institute’s Rules for Expedited Arbitrations shall apply. Where the amount in dispute exceeds USD 100,000 the rules of the GAC Institute shall apply. Where the amount in dispute exceeds USD 100,000 but not USD 500,000 the arbitral tribunal shall be composed of a sole arbitrator. Where the amount in dispute exceeds USD 500,000 the arbitral tribunal shall be composed of three (3) arbitrators. The amount in dispute includes the claimant’s claims in the request for arbitration and any counterclaims in the respondent’s reply to the request for arbitration.

20.3 The place of arbitration shall be Georgia, United States. The arbitration proceedings shall, if not otherwise agreed, be conducted in the English language.

20.4 Notwithstanding any other provisions of this section 20, any action for collection of any payment obligation may be brought in any court with competent jurisdiction.